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

a ‘reasonable’ tree owner would haveassessed the situation and what theywould have done about it. If, for example,the branch of a tree breaks off and fallsinto a neighbouring property causingdamage, the tree owner would not beliable unless they failed to take reasonablecare of the tree or failed to fix what anordinary reasonable landowner wouldhave recognised as a significant problem. 1Compensation (called ‘damages’) is theusual remedy if negligence is proved.A neighbour who is aware that a tree nearthe boundary is in a dangerous condition,or belongs to a species which is knownto drop branches, should draw this to thetree owner’s attention in writing and keepa copy of the letter. If damage occurslater, this will assist to establish that thetree owner was aware of the problem andfailed to take reasonable and appropriateprecautions.If, however, a strong, healthy tree blowsdown across the fence in a storm, this isconsidered to be an ‘act of God’ for whichthere is no liability. 2 Nor is there liability forleaves, needles, nuts or twigs which areblown into the neighbour’s property by thewind 3 unless, perhaps, they were knownto be highly toxic and attractive to animalsor children. 4If the tree owner cuts off branches orpicks up leaves and throws them overthe boundary the affected neighbour maybring an action for trespass. A trespassgenerally involves a deliberate, invasivebreach of security without permission. Itis not necessary (as it is with an actionfor negligence) to prove that any actualdamage or loss resulted from the trespass.Special additional damages may also begiven as a warning to others.(c) Trees intruding on to theneighbour’s sideTree branches and roots growing over theboundary are not ‘trespassing’ in the legalsense. 5 They are legally a ‘nuisance’. 6 Atree which remains entirely on the owner’sside of the boundary cannot, technically, bea nuisance. 7The law of nuisance is essentially aboutbalancing interests in cases of conflictingland use. A nuisance is an unreasonableand substantial interference with theneighbouring owner’s use and enjoymentof their land. (Apart from trees, otherexamples of nuisance are noise, dust,smoke, flooding, pollution etc.) Where anuisance situation is found to exist, the lawmay provide several remedies, dependingon whether actual damage or loss hasoccurred or is likely to occur. In mostcases the main legal remedy for projectingbranches and penetrating roots is the rightto cut them off at the boundary.4