Re: Notorious hedges

Shy neighbour · 5th July 2010, 11:28 AM

Hi, I wonder if anyone has any advice re. my neighbours, who want us to cut down our leylandii hedge. We moved in 3 years ago and chose the house mainly for its privacy. At the time the hedge was at roof height to our neighbours' house. Were the hedge not there they could see straight into my kitchen and dining room windows and 2 upstairs bedrooms both with balconies. They have floor to ceiling windows and an upstairs balcony which is often used. In short, my lovely private kitchen and backyard would become a viewing stage for neighbours! Their complaints are that they cannot get light into their backyard and roots are lifting pavers. Incidentally they have a very large front garden with plenty of light.
We have offered to cut back on the height of the hedge to the height it was when we moved in, to allow more light and still maintain ours and their privacy, but they want us to completely remove 6 trees. We did not plant the hedge, but would not have bought the house were it not there. I think I would have to move if we were forced to get rid of the trees. We really want to be reasonable and help tham out, but they do not seem to be accepting of any middle ground.

dov · 5th July 2010, 01:09 PM

Did they move in after you did? Or did you move into a property with a disagreement regarding the hedges already in place?

Shy neighbour · 5th July 2010, 01:20 PM

They were already there before we moved in. There may have been an ongoing problem prior to us moving here, but we don't really know. We haven't had any problems with them until now. The frustrating thing is that we have offered to trim them, but they just want them gone completely.

Brent Ferris · 5th July 2010, 04:27 PM

Is the hedge on your side of the property line? If it hangs over their property, the hedge should be trimmed to your side -- that is only courteous.

Would they be mollified if you offered to help them relay their paving stones?

It may be worthwhile to talk with the other neighbours and get an impression as to what your next door neighbour's are like -- do they like to complain, or will they take action? Be sure to take lots of pictures, your side and along the property line and how the hedge benefits you, in case they have the hedge removed when you are not there. There are lots of irritating neighbours.

Shy neighbour · 5th July 2010, 05:22 PM

Yes the hedge is about 1.2 m from the fence, and has a couple of overhanging branches. We have offered to trim it but they just want it gone. My husband would be more than happy to help with the pavers, but he cannot really see that they are actually effected very much at all, saying that 1 was lifted about 1/2inch! I think that they are using this as an excuse for complete removal rather then trimming. We would be happy to tackle the roots and put in a retainer.
Thanks for the comments, I think that regarding the law we aren't legally obliged to do anything at all, but don't want a falling out! It's just hard to negotiate when people are so single minded with what they expect. We are being expected to remove at our own cost 6 trees that we love which would result in a complete lack of privacy!

Eric Frei · 5th July 2010, 06:20 PM

In NSW you are very lucky to have a system which I think is Australia's best at this stage. You have the State system but you need to check your local council too. Ring the council and see if the trees are protected.

Here's some links. You can ring the court too and talk to them.

Problems with Trees - Local Courts : Lawlink NSW

Homepage - Land & Environment Court : Lawlink NSW

Merit decisions by Local Government Areas - Land & Environment Court : Lawlink NSW

Lawlink NSW: 2. Trees

Quote:

Where trees block out sunlight

2.9 The law gives very little protection to neighbours who find that trees interfere with their enjoyment of occupancy by blocking out sunshine from their land. The common law is uncertain about whether and, if so, in what circumstances a person has a remedy in nuisance against a neighbour for blocking out sunlight to his or her property. The common law does not generally recognise access to light as an interest it will protect unless the person’s access to the sun is protected by an easement. However, few people are likely to take the legal steps necessary expressly to protect their access to sunlight by easement and the neighbour would have to agree before it could be done. In any case, even if there is an easement, the interference must reduce the amount of light below the amount which is reasonably necessary for the ordinary use of the plaintiff’s land.22 The ability to get an easement through 20 years continuous and uninterrupted user (the doctrine of ancient lights) has been abolished in New South Wales if access is merely for enjoyment.23

2.10 The common law of nuisance does not protect unusual or sensitive use of land. This is likely to make it difficult for a person seeking to protect access to sunlight for a solar collector to succeed in an action for nuisance.24 This is particularly so while the number of people using solar collectors remains relatively low.25 If a neighbour has blocked the sunlight purely out of malice, and assuming the court holds that access to sunlight is an interest deserving of protection, the person with the solar collector may have a greater chance of success in an action for nuisance. However, it appears that this argument will only succeed if the tree casting the shade has no utility value to the tree owner.26 A further concern is that even if the action succeeds, there is no guarantee that the court will grant an injunction, which is what a person needing access to sunlight needs, rather than damages.27 In the United States, there is some movement towards courts recognising that blocking sunlight to a solar collector may be a nuisance,28 but it seems unlikely that Australian courts will follow this lead.29

Where trees block out a view

2.11 The law of nuisance does not provide a remedy where trees block out a neighbour’s view. The common law of nuisance has consistently refused to protect a right to a view.30 The reasons appear to be that the interference with aesthetics is too subjective and that while obstruction of a view may cause annoyance and loss of property value, it will rarely, if ever, result in the complete loss of enjoyment of land.31

Remedies

Injunctions

2.12 Where a tree causes damage, the courts tend to favour granting an injunction requiring the tree owner to cut down a tree causing a nuisance or to take some other action to prevent the tree causing further nuisance. Where damage has not yet occurred, the courts will only grant an injunction to prevent future injury in a very narrow set of circumstances which do not include likely damage due to encroachment of roots.32

Damages

2.13 A court can award damages to compensate a person affected by trees causing a nuisance. To get compensation the person must suffer actual physical damage.33 The law is more complicated where there is a continuing nuisance. The common law does not compensate a person for damage that will occur in the future. To avoid bringing repeated claims each time more damage occurs, a person can claim damages in equity and the appropriate court will assess damages taking into account future damage as well.34

Abatement

2.14 The common law allows a person to cut off overhanging branches and roots intruding onto his or her property. This is known as the right of abatement.35 The person does not need the court’s permission or to notify the owner of the tree although notice is probably prudent. The encroaching branches or roots do not have to cause actual damage before a person can exercise the right of abatement. However, the person may open themselves to legal action, namely trespass, if he or she goes onto the tree owner’s property to trim the branches or roots unless the branches or roots have actually caused a nuisance or are a danger to life and health.36 The common law also requires that the person removing overhanging branches must place them on the tree owner’s property.37

Shy neighbour · 5th July 2010, 07:37 PM

Thanks, this is very helpful. I think in the interest of showing that we are trying to be reasonable we will cut the trees back to their original height when we moved in and go from there.

Eric Frei · 5th July 2010, 07:42 PM

Yep, and if they want anything else, stiff cheddar.

glennak · 5th July 2010, 10:23 PM

The lifting tiles may be a problem. You are not responsible for anything that has happened so far, but now you have been notified you can be held responsible for any future damage. But it sounds like this is not really a problem. Maybe you could say if the hedge goes we want sight screens on the balcony and the windows obscured to a height of 1.8m etc.

Brent Ferris · 6th July 2010, 02:33 PM

I would keep the hedges and the privacy, trim them to show you are somewhat reasonable, and resign yourself to agreeing to disagree.

dov · 6th July 2010, 08:23 PM

If the neighbours are particularly adamant that it must go, start keeping a diary of dates, times etc. with photos of any change in the hedge. Just in case...

Garry Brockley · 6th July 2010, 08:28 PM

Good call Dov that is a very wise reccomendation i think we have all come accross those people on our travels.

5th July 2010, 11:28 AM	#1
Shy neighbour I'm new here so be nice Join Date: Jul 2010 Location: NSW Posts: 4	Re: Notorious hedges Hi, I wonder if anyone has any advice re. my neighbours, who want us to cut down our leylandii hedge. We moved in 3 years ago and chose the house mainly for its privacy. At the time the hedge was at roof height to our neighbours' house. Were the hedge not there they could see straight into my kitchen and dining room windows and 2 upstairs bedrooms both with balconies. They have floor to ceiling windows and an upstairs balcony which is often used. In short, my lovely private kitchen and backyard would become a viewing stage for neighbours! Their complaints are that they cannot get light into their backyard and roots are lifting pavers. Incidentally they have a very large front garden with plenty of light. We have offered to cut back on the height of the hedge to the height it was when we moved in, to allow more light and still maintain ours and their privacy, but they want us to completely remove 6 trees. We did not plant the hedge, but would not have bought the house were it not there. I think I would have to move if we were forced to get rid of the trees. We really want to be reasonable and help tham out, but they do not seem to be accepting of any middle ground.

5th July 2010, 01:09 PM	#2
dov Over mature heritage tree Join Date: Nov 2009 Location: Melbourne Posts: 649	Re: Notorious hedges Did they move in after you did? Or did you move into a property with a disagreement regarding the hedges already in place?

5th July 2010, 01:20 PM	#3
Shy neighbour I'm new here so be nice Join Date: Jul 2010 Location: NSW Posts: 4	Re: Notorious hedges They were already there before we moved in. There may have been an ongoing problem prior to us moving here, but we don't really know. We haven't had any problems with them until now. The frustrating thing is that we have offered to trim them, but they just want them gone completely.

5th July 2010, 04:27 PM	#4
Brent Ferris Veteran Heritage Status Join Date: Jun 2010 Location: Toronto, Ontario, Canada Posts: 1,557	Re: Notorious hedges Is the hedge on your side of the property line? If it hangs over their property, the hedge should be trimmed to your side -- that is only courteous. Would they be mollified if you offered to help them relay their paving stones? It may be worthwhile to talk with the other neighbours and get an impression as to what your next door neighbour's are like -- do they like to complain, or will they take action? Be sure to take lots of pictures, your side and along the property line and how the hedge benefits you, in case they have the hedge removed when you are not there. There are lots of irritating neighbours.

5th July 2010, 05:22 PM	#5
Shy neighbour I'm new here so be nice Join Date: Jul 2010 Location: NSW Posts: 4	Re: Notorious hedges Yes the hedge is about 1.2 m from the fence, and has a couple of overhanging branches. We have offered to trim it but they just want it gone. My husband would be more than happy to help with the pavers, but he cannot really see that they are actually effected very much at all, saying that 1 was lifted about 1/2inch! I think that they are using this as an excuse for complete removal rather then trimming. We would be happy to tackle the roots and put in a retainer. Thanks for the comments, I think that regarding the law we aren't legally obliged to do anything at all, but don't want a falling out! It's just hard to negotiate when people are so single minded with what they expect. We are being expected to remove at our own cost 6 trees that we love which would result in a complete lack of privacy!

5th July 2010, 07:37 PM	#7
Shy neighbour I'm new here so be nice Join Date: Jul 2010 Location: NSW Posts: 4	Re: Notorious hedges Thanks, this is very helpful. I think in the interest of showing that we are trying to be reasonable we will cut the trees back to their original height when we moved in and go from there.

5th July 2010, 07:42 PM	#8
Eric Frei Admin - Owner Palm & Tree Services in Brisbane Join Date: Jan 2007 Location: Brisbane Posts: 12,993	Re: Notorious hedges Yep, and if they want anything else, stiff cheddar. __________________ Protect your rights to work - Join Australian Tree Association My businesses:- Qualified Brisbane Palm and Tree Lopping \| Stump Grinding Brisbane \| Brisbane - Gold Coast Consulting Arborist

5th July 2010, 10:23 PM	#9
glennak Semi-mature vigorous tree Join Date: Mar 2010 Location: Melbourne Posts: 179	Re: Notorious hedges The lifting tiles may be a problem. You are not responsible for anything that has happened so far, but now you have been notified you can be held responsible for any future damage. But it sounds like this is not really a problem. Maybe you could say if the hedge goes we want sight screens on the balcony and the windows obscured to a height of 1.8m etc.

6th July 2010, 02:33 PM	#10
Brent Ferris Veteran Heritage Status Join Date: Jun 2010 Location: Toronto, Ontario, Canada Posts: 1,557	Re: Notorious hedges I would keep the hedges and the privacy, trim them to show you are somewhat reasonable, and resign yourself to agreeing to disagree.

6th July 2010, 08:23 PM	#11
dov Over mature heritage tree Join Date: Nov 2009 Location: Melbourne Posts: 649	Re: Notorious hedges If the neighbours are particularly adamant that it must go, start keeping a diary of dates, times etc. with photos of any change in the hedge. Just in case...

6th July 2010, 08:28 PM	#12
Garry Brockley Bayside Tree Care Brisbane Join Date: Jun 2008 Location: Brisbane Aus Posts: 1,641	Re: Notorious hedges Good call Dov that is a very wise reccomendation i think we have all come accross those people on our travels. __________________ My business:- Brisbane Bayside Tree Care

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