Trees

Contributed by Harriet Ketley and current to 1 September 2005

Another common problem between neighbours is caused by trees. Trees can present a range of problems from the irritation of constantly having to rake up leaves falling from a neighbouring tree to serious structural damage caused by falling branches or invading roots. The following section outlines the general law applicable to problems arising from trees. However, local councils also have the power to make by-laws, which may change some or all of the information in this section. It is therefore recommended to check with the local council or shire before taking any formal action.

Overhanging branches and invading roots create a nuisance. There are three legal remedies:

• Self-help – a person is entitled to cut back branches or roots to the boundary line and return these to the tree-owner’s side of the fence without causing any damage to the tree owner’s property. The same applies to falling leaves.

• Injunction – this is a court order which requires the tree-owner to stop the action which constitutes the nuisance. An order may be made for removal of the tree. There must be evidence to show the tree constitutes a danger to the plaintiff’s reasonable enjoyment of his/her land. Because only the Supreme Court can make these sorts of orders they tend to be very expensive and legal advice is needed before contemplating this sort of action.

• Damages – a claim can be made for compensation for damage caused.

OVERHANGING TREES

A neighbour is not obliged to cut back overhanging branches unless they cause damage to property, or unless a court orders him or her to do so. However, the person onto whose property the branches are hanging is entitled to cut the branches back to the boundary line. The same applies to roots, although care should be taken not to damage the tree itself. Any cuttings can be returned to the tree-owner’s side of the fence.

OLD TREES

An old or diseased tree can present a very real threat if it is likely to fall onto neighbouring property. It is trespass to go on to a neighbour’s property without permission to remove the tree. If the neighbour is unwilling to have the tree removed, the local council may send an inspector to look at the tree. The inspector may be able to persuade the neighbour to have it removed. Under the Local Government Act 1995 (WA) the local council may serve a notice on owners of land to ensure that a tree on land that endangers any person or thing on adjoining land is made safe.

If this is unsuccessful, a letter can be sent to the neighbour advising of the danger and requesting some action. Should the tree eventually fall and cause damage a copy of the letter will show that the neighbour was given notice of the danger and failed to do anything about it.

It is possible to get a Supreme Court declaration that the tree is a hazard but this is costly and unfortunately it is usually a case of taking action once the damage has been done. Adequate insurance is the best protection.

ROOTS

Invading roots can cause serious structural damage to neighbouring property. The tree owner will be held liable for the damage if the Court is satisfied that he or she was negligent.

Negligence may arise from planting an unsuitable tree near the property line or failing to take steps to avert disaster once it has been brought to the tree owner’s attention. Where negligence is proven, damages can be awarded to compensate the person whose property was damaged. This process can be extremely costly and may be of little point if the offending neighbour has no capacity to pay. Invading roots can be cut off at the property line but care must be taken not to damage the tree and thus create a potentially greater hazard.