Guide

Overhanging branches: what you may and may not do

Almost everyone has heard that you can cut anything that crosses your boundary. In New South Wales that is not a safe rule to act on, and acting on it is how people end up paying for a tree.

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.

In short

The tree belongs to your neighbour even where part of it is above your land. Cutting it badly, or cutting a tree that is protected by council rules, can leave you liable.

The Trees (Disputes Between Neighbours) Act 2006 (NSW) is the route where a tree has caused, is causing or is likely in the near future to cause damage to your property, or is likely to injure someone. Those applications go to the Land and Environment Court.

Do this first: find out whether the tree is protected by your council’s rules. That single question changes what you may lawfully do, and it is free to ask.

Why the folk rule is not enough

The idea that a landowner may cut back whatever grows over the boundary has a long history, and it is the answer most people are given over the fence. The trouble is that in New South Wales it sits underneath two other things, and either of them can make it wrong in your case.

The first is that the tree remains your neighbour’s property. Pruning that damages or kills a tree is not a neutral act, and where the work goes beyond what was reasonable, or is done badly enough to harm the tree, the person who did it can be the one facing a claim.

The second is that many trees are protected by council rules. Councils in New South Wales control the pruning and removal of trees through their planning instruments, and that control does not stop at a boundary line. A branch over your yard can still belong to a tree you are not permitted to cut without consent. This catches people constantly, and the penalty is not a conversation.

So the honest version of the rule is narrower. You may have some scope to deal with what overhangs, but it is limited by what is reasonable, by whose tree it is, and by what your council permits. It is not a licence to take a chainsaw to the boundary on a Saturday.

Ask your council first. Ring and ask whether the tree is protected and whether consent is required for the work you have in mind. It takes one phone call, it costs nothing, and it is the single most useful thing on this page.

Leaves, fruit and shade are usually not enough

A great many tree complaints are about mess. Leaves in the gutter, fruit on the lawn, bark on the car, blossom in the pool. It is genuinely annoying and it is genuinely constant, and the law is generally unsympathetic to it.

Living near a tree involves accepting a certain amount of what trees do. The Trees (Disputes Between Neighbours) Act 2006 (NSW) is directed at damage to property and at injury to people, not at untidiness. A tree that drops leaves into your gutter has not damaged your property in the sense the Act is concerned with, however often you clear it.

Shade is in a similar position, with one exception. There is a separate part of the Act, Part 2A, for a hedge of two or more trees that severely obstructs sunlight to a window of a dwelling, or a view from a dwelling. A single large tree shading your yard is not a Part 2A case, and an obstruction that is irritating rather than severe is not one either.

This is worth knowing before you spend money. A matter that is really about mess rarely improves by being taken further, and it often makes the relationship you have to live with considerably worse.

When it is a real problem: damage and injury

Part 2 of the Act is the serious route. It deals with a tree on adjoining land that has caused, is causing, or is likely in the near future to cause damage to property, or is likely to cause injury to a person. Roots lifting a slab or a wall, a limb over a bedroom, a trunk that has moved since the last storm: these are the situations the Act was written for.

These applications go to the Land and Environment Court of New South Wales, in its Class 2 jurisdiction, not to NCAT and not to the Local Court. The Court states that the applicant must be an owner or occupier of land adjoining the land the tree is on.

The Act also closes off a route people expect to have. It provides that no action may be brought in nuisance as a result of damage caused by a tree to which Part 2 applies, or as a result of an obstruction of sunlight or of a view caused by trees to which Part 2A applies. In other words, for these trees the Act is the path, rather than one option among several.

Damage that has already happened, with photographs and, where you can, a repair quote.
Damage that is occurring now, shown over a period rather than in a single image.
Damage likely in the near future, which generally needs an arborist or an engineer rather than an opinion.
Risk of injury to a person, which is the strongest ground and the one to act on quickly.

An order under the Act can require work to be done, and in some cases compensation. Removal of the tree is one possible outcome, not the usual starting point.

You are expected to have tried first

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 that although mediation is not compulsory it is an effective way to try to resolve the matter.

So a genuine attempt is not a nicety. Write to your neighbour, set out what the problem is, say what you would like done, and keep a copy. If they do not respond, you have your attempt. If they do, you may not need the Court at all, which is much the better outcome for two people who share a fence.

Keep the letter factual and short. Describe the tree, describe what it is doing, propose the work, and give a reasonable time to reply. Resist the urge to list every other grievance.

What usually happens

Find out whether the tree is protected

Ring your council and ask whether the tree is protected and whether consent is needed for the work you are contemplating. Do this before anything else.

Work out what the real problem is

Mess and shade are usually not enough. Damage to property, or a risk of injury, is what Part 2 of the Act is about.

Gather evidence

Photographs over time, repair quotes, and where the claim is about likely damage, something from an arborist or an engineer.

Write to your neighbour

Set out the problem, propose the work and give a reasonable time to respond. Keep a copy. The Court expects an attempt to resolve the dispute.

Apply, if it comes to that

Applications under the Act go to the Land and Environment Court in its Class 2 jurisdiction. Check the Court’s own guidance on how a tree dispute application is made.

Common questions

Can I cut the branches on my side and throw them back over?

Do not assume either half of that. Whether you may cut at all depends on your council’s rules and on the tree, and returning cuttings over the fence is a good way to turn a solvable problem into a feud. Ask the council about the tree, and ask your neighbour about the cuttings.

What if the fruit on the overhanging branch is mine?

It is a common question and it is almost never the real issue. The tree is your neighbour’s property, and fruit on it generally goes with the tree rather than with the airspace. If this is the substance of the disagreement, it is not a matter worth spending money on.

The roots have cracked my path. Is that damage?

It is the kind of thing Part 2 of the Act is about. What has to be established is that the tree is actually the cause, which usually needs more than the fact that the tree and the crack are near each other. Photographs over time and an expert opinion do the work here.

My neighbour says the tree is protected so nothing can be done.

That is not the end of it. Protection affects what may be done without consent; it does not remove the Court’s role. The Act provides that an order under Part 2 or Part 2A has effect despite a requirement that a consent or other authorisation for the tree would otherwise have to be obtained.

The tree is on the boundary itself.

Then who owns it is a genuine question, and it needs answering before anything else. That usually starts with where the boundary actually runs — see boundaries and encroachment — because a tree straddling a line is in a different position from a tree clearly on one side.

A branch came down and damaged my roof. What now?

Deal with the immediate safety and the weatherproofing first, and photograph everything before it is cleared. Then tell your insurer, and record what the tree looked like before and after. A claim about damage that has already happened is a Part 2 matter, and the evidence is best gathered in the first few days.

Before you cut anything

The cheapest advice on this page is the phone call to your council. The most expensive mistake is cutting a protected tree because someone said you were entitled to.