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

A tree owner is unable to avoid liabilityon the basis that the neighbouringowner bought their property next tothe tree or built too near it. 13 In somecircumstances, however, this will affectthe nature of court orders obtained or theamount of compensation awarded. It isalso no answer to a tree nuisance claimthat the tree was self-sown 14 or posedan insubstantial or not unreasonableinterference. 15(d) Trees on the boundaryIf a tree appears to be growing right onthe boundary, it legally belongs to theowner of the land where it was first sownor planted. Where this is not known, thetree is normally regarded as being jointlyowned by the adjoining landholders. 16 Insuch cases, there is no right to cut thetrunk at the boundary, because this wouldkill the tree and destroy the adjoiningowner’s interest in it. Both owners willhave to agree on how to deal with it.(e) Problems caused by landowner’s treesPeople obviously cannot claim againstneighbours for problems caused by theirown tree unless it can be shown thatthe neighbour has interfered with thetree so as to create the problem. Suchinterference, especially by poisoning,can be very difficult and costly to prove.Deliberate interference may result inliability for trespass or even criminaldamage, while careless interference mayresult in liability for negligence.What can the affectedneighbour do?However annoying the problem with a tree,it is important for an affected neighbour tokeep it in perspective. In most cases thereare a range of possible solutions. But if thetree owner and the affected neighbour areto continue to live next door to each other,it is best to approach the problem in sucha way as to avoid any unnecessary harmto the relationship. Honest discussion ofthe situation with the aim of negotiatinga mutually beneficial solution is the bestapproach, regardless of whether thetree owner is legally responsible for theproblem.If the affected neighbour is a tenant,the landlord should be informed of theproblem, but the tenant has the right topursue any of the following strategies.The parties discuss the problemIt is sensible to think carefully aboutexactly what you want before raising aproblem with a neighbour. A good start issimply to arrange a convenient time to talkabout the tree. It is obviously not a goodidea to commence discussions ‘in the heatof the moment’ after first becoming awareof the problem.People should explain the problem asclearly and openly as possible in terms ofhow they are affected and not in terms ofhow the other party is to blame. If bothparties are able to do this, and listen toeach other enough to understand what6