Trees, hedges and branches

Trees and branches

A tree next door that is damaging your property, or likely to injure someone, is dealt with by one part of the law. A hedge blocking your sunlight or your view is dealt with by another. They are not the same application.

General information, not legal advice. This page sets out how the law generally applies. It does not take account of your circumstances, and you should get advice about your own situation before acting on it. The official sources this page is written from are listed on it; where they differ from anything here, they are the authority.

Who this page is for

Two different problems that look alike

People usually arrive here with one of two complaints. Either something next door is damaging their property or frightening them — roots lifting a slab, a limb over a bedroom, a trunk leaning after a storm — or something next door has taken their light. Both are about trees. The Act treats them separately, and the difference decides what you have to prove.

Part 2 is the damage and injury part. It is about a tree that has caused, is causing, or is likely in the near future to cause damage to your property, or is likely to cause injury to a person. It is not enough that a tree is large, or messy, or that you would rather it were not there. Leaves in the gutter and fruit on the lawn are, on their own, ordinarily part of living near a tree.

Part 2A is the hedge part, and it is narrower than people expect. It applies to a group of two or more trees that are planted so as to form a hedge, and the obstruction of sunlight to a window of a dwelling, or of a view from a dwelling, has to be severe. A single tree, however tall, is not a hedge. A view you would like back is not automatically a view the Court will restore.

Both go to the Land and Environment Court. That surprises people, because nearly every other neighbour dispute in New South Wales goes to NCAT or the Local Court. The Court also expects the parties to have attempted to resolve the dispute before a final hearing, so an application lodged the day after the first argument is starting in the wrong place. There is a further layer: many trees are protected by council rules, so what you may lawfully do to a tree is not only a question between you and your neighbour.

How we help

What the work actually is

Working out which Part you are in

Damage and injury under Part 2, or severe obstruction by a hedge under Part 2A. They need different evidence and they are proved differently. Getting this wrong at the start costs a filing fee and several months.

Testing whether it can be made out

Whether the damage is actually caused by the tree, whether the risk is real and near, or whether a group of trees is genuinely a hedge severely obstructing sunlight or a view. An honest answer here saves far more than it costs.

The attempt to resolve it

The Court expects the parties to have tried. We help you make a genuine, recorded attempt — one that resolves the matter if it can, and that stands up as an attempt if it cannot.

Council rules and protected trees

Whether the tree is protected, what consent would be needed to touch it, and how an order of the Court interacts with that. This is the part people discover after they have already cut something.

Questions

Questions people ask first

Can I cut the branches that hang over my side?

Be careful here. The old idea that you may cut anything that crosses the line, and that this is always safe, is not a reliable guide in New South Wales. Many trees are protected by council rules, the tree is your neighbour’s property, and cutting badly can make you liable for harming it. Our guide to overhanging branches sets out where self-help stops and an application begins. Check before you cut, not after.

The roots are lifting my driveway. Is that enough?

It is the kind of thing Part 2 is for. The Court can deal with a tree that has caused, is causing, or is likely in the near future to cause damage to property. What has to be established is that the tree is actually the cause, and that usually calls for evidence rather than an opinion. Photographs over time, and an arborist, do more than description.

My neighbour's trees have blocked all my afternoon sun. Can I do anything?

Possibly, under Part 2A, but the test is strict. It applies to a group of two or more trees planted so as to form a hedge, and the obstruction of sunlight to a window of a dwelling must be severe. A single tree does not qualify, and an obstruction that is merely annoying does not either. It is worth getting a view on the prospects before you spend anything.

Does this go to NCAT?

No. Applications under the Trees (Disputes Between Neighbours) Act 2006 go to the Land and Environment Court of New South Wales, in its Class 2 jurisdiction. Lodging in the wrong forum is one of the more common and more avoidable ways to lose time in these matters.

Do I have to talk to my neighbour first?

You should, and the Court effectively expects it. The Land and Environment Court states that it must be satisfied the parties have attempted to resolve the dispute before the matter is listed for final hearing, and it says mediation is not compulsory but is an effective way to try. A recorded attempt costs you very little and it is the first thing you will be asked about.

What can the Court actually order?

Orders under the Act are about remedying, restraining or preventing damage or injury from a tree, and about pruning or removing hedges that severely obstruct sunlight or a view. That can include work being done, and in some cases compensation. It is not a general power to tidy up a neighbour’s garden, and removal is not the automatic outcome.

The tree damaged my fence. Is that a tree case or a fence case?

It can be both, and they run in different places. The fence itself is dealt with under the Dividing Fences Act 1991 and goes to NCAT or the Local Court — see dividing fences. A claim about the tree that caused the damage, or about what happens next, is a Land and Environment Court matter.

What to have ready

Tree matters turn on evidence about a specific tree on specific land, so the useful material is nearly always photographic and documentary.

Photographs of the tree and of the damage, ideally showing how it has changed over time.
Anything from an arborist, an engineer or a builder about the cause of the damage.
Repair quotes or invoices for the damage you say the tree caused.
Whether the tree is on your neighbour's land or on the boundary, and how you know.
Any correspondence between you and the neighbour about the tree, with dates.
For a hedge claim: how many trees there are, when they were planted and how they are arranged.
For a sunlight claim: which window is affected, and photographs at the times of day it matters.
Anything the council has said about the tree, including whether it is protected.