Trees on fence line court dispute

adman82

Hi, Just registered. Got to this site via a search for a lawyer that could assist with a L&E Court Tree dispute application that has been served on me. Like most I firmly believe that I have no case to answer. My neighbour has applied to the court to have all my boundary trees removed including roots together with a compensation claim for damage to stormwater pipes and a 25 year old retaining wall. Sounds OK so far. However, in 13 years he has never indicated any issues with the trees, roots or pipes. The first I have heard of these issues was when I received the application in the mail, requesting a phone conference to be facilitated by the court. Relations with the neighbour have deteriorated over the last couple of years due to other unrelated matters but which do have a bearing on the overall context. Has anyone out there been on the receiving end? Like to know your thoughts on the process and outcomes. I have viewed rulings for similiar cases available on the net for our area and the outcomes vary. Not sure if I really need a lawyer for advice though.

Eric Frei

The outcome will be interesting, please do keep us informed.

Personally I am of the opinion that trees should be contained within the boundaries of your own property. Where trees (foliage and roots) extend beyond the boundaries of your own property in effect you are impacting upon other people's property and lifestyle ARBITRARILY (without consent). The perceived reasoning of such intrusion is often that the benefits trees offer to the greater community is more important than an individuals own rights, however that could also be achieved with non-intrusive trees.

If a large tree, say 1m DBH is right on the fence line then according to AS4970 calculations a 12m radius of tree protection zone is required. Based on that, and the tree being on the fence line in effect you have commandeered the use of you neighbours land to the value of 214m2. This happens all the time and after noise disputes tree are the next most popular.

I have had cases where buildings have to be shrunk or relocated to accommodate a neighbours tree. Imagine being refused to build a pool due to a neighbours tree? It happens.

In the UK the concept of planting out your fence-line with fast growing cypress got so bad (was even on 60 Minutes) that they actually had to bring out a law called Anti-Social Behavioural Act - Trees.

Then there is also issues of foundation subsidence and trees. Often the distance a tree is from the house cannot be closer than the height of the tree, for instance a 10m tall tree should be further than 10m from the house. So one of your fence line trees was deemed cause of a foundation crack resulting in $20K of underpinning you bet I'd be taking you to court, problem is often you only know after the fact not before. Perhaps for other readers they might want to think about what the future holds, get a soil test, see what type of soil you have and get an engineer to tell you about the issues of subsidence from trees to your house. If it's possible your neighbours tree could do the damage then they should pay for the root barrier or tree removal shouldn't they? If you are the tree owner, prevention is better than cure ... be pro-active.

The next thing to consider is tree life versus human tenancy period. Trees can out live people, we all know that. But trees often out live resident tenancies (period of time you are there). The average tenancy of a household is 7 years, then new people move in and so on. So the tree may see many many different people during it's life time, and possibly same for the tree owners .... the person who planted the tree could been long gone. This means many varying attitudes and regulations towards the tree will be endured over the tress life.

All of these scenarios can create moments of conflict, the tree doesn't know of man's laws and property boundaries, it just grows as best it can.

With all of these in my mind in my job daily I advise, right tree, right location, do not allow tree parts to leave your property. If necessary install root barrier at the fence-line BEFORE PLANTING, not after as cutting roots off is not good. If required get a consulting arborist to advise of pruning and root barriers to reach a compromise situation and not harm the tree.

Just yesterday I had a real case. Neighbours tree is right on the fence line, it's 0.8m DBH but not protected. Approval was given for the house to be built 3m away from the fence line, in effect the structural roots would be cut off. Engineers wont guarantee the house foundation and mandate root barrier installed between tree and house. Line of root barrier is only 1.5m away from tree and house. Root barrier installers do not bat an eyelid and will do it potentially destabilizing and killing the tree. See, no competence yet so far is there. Builder gets referred to me, I advise over the phone verbally of situation, builder says he's approved to go and root barrier people say all is OK.

In my opinion a decent decision would be that you pay for all remedial work, preventative work and pruning where required. In areas where there's no impact upon people or their property then let nature be. But that does not offer any relief for the fact that the root zone of the trees to survive was arbitrarily taken from your neighbours land, commandeered the use of his land.

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tali

sorry adman 82 , if the trees on your property are causing damage to your neighbours property maybe you should do the right thing and address the problem , rather than taking the victim to court - your property your responsibility

Eric Frei

I think adman82 is the tree owner and he has been taken to court by his neighbour .... that's the way I read it. He's looking for defence as he owns the trees.

The neighbours claims might be outlandish, but that's where most negotiations start.

Also the court does have to consider future probable damage from his trees.

Here's an interesting case, Tree owners only had to pay 40% of a patch up job of bitumen driveway.

Dean v Ellsworth [2010] NSWLEC 1032

I like Judy Fakes, she actually goes out there and has a look, goes up a ladder and checks it out!

Forner v Walsh [2010] NSWLEC 1033

What I am reading is that the future is considered to be around 1 year, is it likely damage will result within 1 year?

Source: Yang v Scerri [2007] NSWLEC 592
Existing damage takes into consideration wear and tear plus old technology (ie terracotta pipes that break and tree roots go in) or bitumen driveways that would not meet construction codes today.

So the damage to the retaining wall .... well for all we know it's an old rotten wooden wall, not sure what factors are involved.


Looking at your case through the eyes of say Judy Fakes answer these 4 questions.

Has the tree caused damage to the applicant's property ?

Is the tree now causing damage to the applicant's property ?

Is the tree likely in the near future (within 12 months) to cause damage to the applicant's property ?

Is the tree likely to cause injury to any person?

The rest is a matter of opinion. If the foundation cracking thing comes up perhaps root barrier would be good insurance, the argument is going to be who pays for it.

In the Yang v Scerri [2007] NSWLEC 592 case, although there was previous branch failures they dealt with the future possibility like this ....

So you can see how much responsibility the tree owner is under now, annual inspections etc. The hard part for the arborist here is if a branch fails after they've been ..... and what if the branch that fails is not defective? we have had lengthy discussions about unpredictable limb drop especially in eucalyptus trees.

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jmcg.insight.gardens

You know Ekka that is a very good point, I think I'll bring that up to my teachers in Landscape Design.



I feel that this issue isn't covered at all.

Eric Frei

It's covered easily if you know what you are looking for.

You need to get a soil report via geotech and you need to know what the foundations of the house is.

Then work out the numbers and hit up the neighbour.

Once the neighbour is informed they are liable to some degree (so are you if you take zero action I suppose). The course of action is to then speak with your neighbour, followed by writing, followed by legal letter if they fob you off.

These are real cases that people endure. And we get involved. we can only work around existing standards and laws, but the "victim" will always want the tree owner to pay .... the tree owner will always think they should not and I even have them say "it's nature". Regardless of it being "natural" if it's preventable and they chose to not care then they are negligent ... such is the law (here anyway).

Soil subsidence and trees

Also the whole deal on this is currently being reviewed, foundation standards. What is a concern is that engineering only considers the current situation, so there's no anticipation of future plantings, no allowance or stronger engineering. There's been cases where people who bought a house tried to claim 5 years later on a cracked foundation to be knocked back ... reason was that the landscaped gardens had grown and violated the 1:1 rule, mind you the builder planted them!

http://www.treeworld.info/f6/draft-a...ent-13349.html

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