Trees and the Law - Alexandrina Council - SA.Gov.au
Trees and the Law - Alexandrina Council - SA.Gov.au
Trees and the Law - Alexandrina Council - SA.Gov.au
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a ‘reasonable’ tree owner would haveassessed <strong>the</strong> situation <strong>and</strong> what <strong>the</strong>ywould have done about it. If, for example,<strong>the</strong> branch of a tree breaks off <strong>and</strong> fallsinto a neighbouring property c<strong>au</strong>singdamage, <strong>the</strong> tree owner would not beliable unless <strong>the</strong>y failed to take reasonablecare of <strong>the</strong> tree or failed to fix what anordinary reasonable l<strong>and</strong>owner wouldhave recognised as a significant problem. 1Compensation (called ‘damages’) is <strong>the</strong>usual remedy if negligence is proved.A neighbour who is aware that a tree near<strong>the</strong> boundary is in a dangerous condition,or belongs to a species which is knownto drop branches, should draw this to <strong>the</strong>tree owner’s attention in writing <strong>and</strong> keepa copy of <strong>the</strong> letter. If damage occurslater, this will assist to establish that <strong>the</strong>tree owner was aware of <strong>the</strong> problem <strong>and</strong>failed to take reasonable <strong>and</strong> appropriateprec<strong>au</strong>tions.If, however, a strong, healthy tree blowsdown across <strong>the</strong> fence in a storm, this isconsidered to be an ‘act of God’ for which<strong>the</strong>re is no liability. 2 Nor is <strong>the</strong>re liability forleaves, needles, nuts or twigs which areblown into <strong>the</strong> neighbour’s property by <strong>the</strong>wind 3 unless, perhaps, <strong>the</strong>y were knownto be highly toxic <strong>and</strong> attractive to animalsor children. 4If <strong>the</strong> tree owner cuts off branches orpicks up leaves <strong>and</strong> throws <strong>the</strong>m over<strong>the</strong> boundary <strong>the</strong> 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 <strong>the</strong> trespass.Special additional damages may also begiven as a warning to o<strong>the</strong>rs.(c) <strong>Trees</strong> intruding on to <strong>the</strong>neighbour’s sideTree branches <strong>and</strong> roots growing over <strong>the</strong>boundary are not ‘trespassing’ in <strong>the</strong> legalsense. 5 They are legally a ‘nuisance’. 6 Atree which remains entirely on <strong>the</strong> owner’sside of <strong>the</strong> boundary cannot, technically, bea nuisance. 7The law of nuisance is essentially aboutbalancing interests in cases of conflictingl<strong>and</strong> use. A nuisance is an unreasonable<strong>and</strong> substantial interference with <strong>the</strong>neighbouring owner’s use <strong>and</strong> enjoymentof <strong>the</strong>ir l<strong>and</strong>. (Apart from trees, o<strong>the</strong>rexamples of nuisance are noise, dust,smoke, flooding, pollution etc.) Where anuisance situation is found to exist, <strong>the</strong> lawmay provide several remedies, dependingon whe<strong>the</strong>r actual damage or loss hasoccurred or is likely to occur. In mostcases <strong>the</strong> main legal remedy for projectingbranches <strong>and</strong> penetrating roots is <strong>the</strong> rightto cut <strong>the</strong>m off at <strong>the</strong> boundary.4