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

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In our gardens, trees can provide uswith shade, fruit, privacy and a pleasantoutlook. Yet trees can sometimes becomethe cause of disagreement betweenneighbours. Trees can be seen ascompeting for space, water and sunlight,and can sometimes be responsible forinconvenience and damage.The purpose of this booklet is to outlinethe law relating to tree problems betweenprivate neighbours and to suggest somepractical ways in which problems may beavoided.This booklet does not deal with problemsassociated with trees growing on publicland or overhanging on to public areas.In general, whether or not a local councilhas planted a tree on a road, they cannotbe made liable for any damage resultingfrom the tree’s location or growth (LocalGovernment Act 1999, s 245(1)).However, if the owner or occupier ofproperty adjacent to the road has madea written request to the council to takereasonable action to avert a risk ofdamage from the tree and the councilhas failed to take reasonable action inresponse to the request, the council maybe liable for any damage to property thatwould have been averted if the council hadtaken reasonable action when requested.Specific legal advice should be sought inthese situations.The legal control and protection of varioustree species in rural, hills and reserve areasis also beyond the scope of this booklet.The Animal and Plant Control (AgriculturalProtection and Other Purposes) Act 1986,the Native Vegetation Act 1991, and theNational Parks and Wildlife Act 1972 maybe relevant in these contexts.The most common tree problems betweenneighbours include overhanging branches,tree litter, shading and intruding roots.The responsibilities of the tree owner andthe rights of the affected neighbour inthese situations are mainly covered by thecommon law about liability for nuisanceand negligence.A helpful approach to tree problemsbetween neighbours is to ask thesequestions:Is the tree really the problem? (p. 3)Is the tree owner legally responsible? (p. 3 )What can the affected neighbour do? (p. 6 )Is the tree protected? (p. 11)How can future problems be avoided?(p. 13 )2
TREES AND THE LAWIs the tree really theproblem?To establish that the tree owner is legallyresponsible an affected neighbour mustfirst show that it is more likely than notthat a particular tree or trees is the causeof the problem. While it is easy to showthat a branch is overhanging the boundary,it can be difficult to prove root damage.Damage to buildings, walls, drains andpaving may or may not be partly dueto root action. Seasonal changes in soilmoisture levels may be a major factor.Identifying the problem tree or trees mayalso be difficult where several trees aregrowing in the area. Remember that rootsfrom some trees can travel a long wayfrom the base of the tree.Roots can be identified as coming froma particular tree by trenching the site,but this may cause great inconvenienceand expense, particularly if the area isconcreted or built over. Laboratory testscan identify trees from a fresh, woody rootsample more than 5 mm in diameter (seeRoot Sample Testing, page 16).Is the tree owner legallyresponsible?If a particular tree can be identified asthe source of the problem, the tree’sowner may be liable (legally responsible)depending on where the tree is growing.The tree owner is the person who ownsthe land on which the tree is growing (orfrom which it has grown) because the treeis legally considered to be part of the landas a ‘fixture’.Several different situations are possible:(a) Tree located entirely on the treeowner’s landIn most cases there will be no liability atall for problems caused by a tree whichis located entirely on the tree owner’sside of the boundary (including the roots).There is no general right to sunlight or to apleasant or unimpeded outlook (unless, inrare circumstances, there is an easementprotecting such a right). Therefore there canbe no liability for shading, unsightliness,or the blocking of a view by a tree whichremains entirely on another person’s land.(b) Branches or leaves falling overthe boundaryIf a tree grows entirely on the tree owner’sside of the boundary, but parts of it fall bynatural means on to the other side, thetree owner may be liable in negligence. Theaffected neighbour would need to provethat actual loss or damage had resultedfrom the tree owner’s failure to takeadequate precautions. What is consideredadequate is determined by asking how3
Page 2 and 3: Trees and the LawProduced by the Le
Page 6 and 7: a ‘reasonable’ tree owner would
Page 8 and 9: A tree owner is unable to avoid lia
Page 10 and 11: A person cutting back their neighbo
Page 12 and 13: In addition to proving the tree own
Page 14 and 15: Is the tree protected?While the law
Page 16 and 17: How can future problemsbe avoided?A
Page 18 and 19: Where to get helpTechnicalAdvice on

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

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