Trees and the Law - Alexandrina Council - SA.Gov.au

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Is the tree protected?While the law provides some remediesfor the benefit of a neighbour affected byproblems with a tree, it also provides ameasure of protection for the tree ownerand the tree.Action by neighbourThe neighbour affected by a tree nuisancesituation has limited rights to take actionagainst the tree.The right to cut back the tree is limited by:a) the possibility of being held liable fortrespass if the tree is cut beyond theboundary, andb) the possibility of being held liable fornegligence if the tree is unnecessarilyand carelessly harmed because of theway the job is done, andc) whether the tree is protected asa ‘significant tree’ and subject todevelopment controls.A claim for an order requiring the treeowner to do the pruning is only likelyto succeed if substantial or irreparabledamage is likely to occur soon. Orders forremoval of trees are even more difficult tojustify.It must be stressed that in nocircumstances is the affected neighbourlegally justified in poisoning the tree,or going on to or leaning over the treeowner’s land to carry out work on thetree unless given specific permission todo so. Such action could result in a courtawarding compensation and exemplarydamages for trespass to discourage other12people from doing the same thing. 47 It is alsopossible that the neighbour could be chargedwith a criminal offence. There is no right togo on to neighbouring land even to rectify adangerous problem with a tree which is nota nuisance: the only right the law providesis a claim for compensation if it actuallyfalls over and causes damage. Obviously, atimely warning to the tree owner will be theappropriate precaution.Significant treesThe Development Act 1993 provides thatany activity that damages a significant tree isdevelopment and requires council approval.A ‘significant tree’ is:• Any tree in metropolitan Adelaide andtownships in the Mt Barker and AdelaideHills areas with a trunk circumference of2.0m or more. In the case of trees withmultiple trunks, those with trunks with atotal circumference of 2.0m or more andan average circumference of 625mm ormore, measured at a point 1.0m abovenatural ground level, or• Any tree identiied as a signiicant tree inthe City of Adelaide, City of Burnside, Cityof Prospect or City of Unley DevelopmentPlans.If a tree is classified as a significant tree,local council approval is required before itcan be substantially pruned, damaged, killedor removed. Maintenance pruning that is notlikely to affect the health or appearance ofthe tree is not controlled. These requirementsapply both to tree owners and affectedneighbours.
TREES AND THE LAWUrgent work may be done if necessaryto protect persons or buildings, butmust, so far as is reasonably practical, beundertaken to cause the minimum amountof damage to the tree. Approval must beapplied for afterwards [Development Act1993 s 54].A council may either approve anapplication, approve it subject to conditionsor refuse it. No notice of applications willneed to be given to neighbours unlessthe tree is on council land. The normalapplication fees apply for tree owners butthere is no fee for an affected neighbourseeking approval to lop on their side of theboundary. Failure to obtain approval canattract a fine of up to $120,000.The following factors may be taken intoconsideration in the assessment of anapplication :1. To what degree will the activity tobe carried out adversely affect theaesthetic appearance, structuralintegrity, root system or health of thetree?2. Is the tree diseased and its lifeexpectancy short?3. Does the tree represent anunacceptable risk to public or privatesafety?4. Is the tree a bushfire hazard in aBushfire Prone Area?5. Is the tree causing or threateningto cause substantial damage to abuilding or structure of value?6. Have all reasonable alternativedevelopment options and designsolutions been considered to preventsubstantial ’tree damaging’ activityoccurring?Significant tree affecting neighbourPruning back a significant tree that isencroaching on your property – eitherbranches or roots – does not requiredevelopment consent unless it is likely toaffect the health and appearance of the tree.Where cutting back the tree would result indamage to the tree (including root damage),development approval is required.In some rare cases it may be possible tohave the tree protected by the State or localgovernment as a heritage item, so that theowner cannot remove it. Very few trees areincluded as heritage places on the Registerfor protection under the Heritage Act 1993(SA) and those are usually on public land. It ismore likely that a tree on private land couldbe designated a ‘local heritage place’ underthe Development Act 1993. This may bepossible if the tree ‘has played an importantpart in the lives of local residents’, ‘displaysaesthetic merit’, ‘is associated with a notablepersonality or event’ or ‘is a notable landmarkin the area’ (s 23(4)). Notice of proposals toamend the Development Plan to designatesuch places must be given to the owners,inviting them to make submissions to thelocal council before public consultation isundertaken (s 25(12)).13
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Page 18 and 19: Where to get helpTechnicalAdvice on

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