Neighbour Spanks Tree

brown

I have a client in Perth, WA who's neighbour has severed the roots (6 roots 400mm - 100mm diameter) along the boundary to install a concrete footing for new carport.

Basically all roots along one side of tree cut 1m from trunk. Tree is large (1m dbh, 20 odd metres tall). I don't know much about the species (other than figs are tough) but I would say its the end for this ole girl? The tree leans over my clients house.

The neighbours development is consented by council.

My question is, does my client have any recourse to council or the neighbour to compensate for tree or even to pay for its removal?

Garry Brockley

You need as much evidence of these facts as possible!
photos, measurements and a top class arb to inspect before it is all buried they will be able to give you a better idea of how bad the wounding is.
the trees probably wont go straight into decline, they will use thier stored food scources first this can last them upto 5 years at times but it will seem to suddenly die usually after a big flush of either flowers or leaves,
we see this alot after building work has been done but because trees live at a different pace to us, people dont think that the severing of the roots five years ago has any relevance to it dieing now but it is generally the main reason we see for tree diebacks in residential areas.
i hope this helps.

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Eric Frei

We need pics and tree ID.

If it is a fig then the roots can be clean cut very neatly, treated and they will resprout and grow again quickly.

Yes the council is in the shit because there's a standard called AS4970 which has been violated.

Here's a calculator for the numbers you can crunch. It can even work out how much root area has been lost with the cut along the boundary .... a really handy useful tool. Make sure you let the council know about it.

Online Calculator for TPZs and SRZs as per AS4970-2009

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brown

Hi All,

Thanks for your responses. I have pics and measurements and am in the process of compiling a report.

The tree in question is a F microcarpa var. hillii. I don't live in Aus and was visiting at the time of this incident hence why I am asking for your help with legislation etc.

Eric, thanks for the link to the calculator for TPZ, SRZ, all very helpful.

I don't know how to post pics or I would. Thank you all for your help.

Chris75

My council allows me to cut any roots or branches on my side of the fence without any consultation with the neighbour. I am then obliged to give all cuttings back to them, i.e. throw it over the fence. I'm pretty sure all councils in W.A. have the same rules.

What can be done?
If a branch or root encroaches upon your land, you are entitled to cut and remove the offending branch or root at any point up to the boundary of your land. You must not cut the branch or root on your neighbour's side of the boundary without his/her agreement.

The law does not require you to give prior notice of removing branches or roots from your property, but it is both sensible and advisable for you to notify your neighbour that there is a problem and what you intend to do.

Any root or branch, or any flower or fruit growing on a branch that is removed, remains the property of the tree's owner and should be returned to your neighbour.

Care should be taken in the way branches or roots are returned to your neighbour as you will be responsible for any damage or littering that may be caused. Again, it is advisable for you to notify your neighbour of what you intend to do.

Link to page
Trees on Private Property

brown

Hi Chris, Yes this type of legislation is very common. However, usually there is a clause which states that the tree may not be left in a dangerous state, (as is the case here).

I know that picking a fight with the council is often painful and yields little, but I am annoyed with this one. The damaged tree is one of a handful of mature trees left in this neighbourhood (the rest are also on my clients property) and I think the council should be doing more to protect them rather than just letting development run rife with no checks or balances as to how it affects other property owners (end of rant).

brown

One other question, I don't have a copy of AS4970, does it refer/recommend the Burnley method of tree valuation?

Eric Frei

Chris75,

Thanks for the link and info, certainly cements the wild west theory to how poorly written and researched matters are over there, even the WA Legal Aid site was off the mark.

You cant abate one nuisance and create another (hazardous tree).

Link:

There are other laws to consider, we all have a duty of care.

Brown,

There's no mandatory method to value a tree, and there is many methods. What you will find is a tree hugger will use the one that gives maximum value and a tree hater the other one with minimum value. There's plenty of threads here about it if you search "tree valuation".

Here's a link to how to load pics here.

How to post| add a picture or file| embed picture

It's not all over yet, we need data.

Also, is the tree protected at all by some council regulation?

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brown

Heres a few pics (I hope)

Attached Thumbnails

       

Eric Frei

Yeah, worse than I expected.

All I can say is .... typical fence line tree issue and being a ficus microcarpa var hillii that tree has the potential to get around 2m diameter at the base, 100' high and wide. In addition it will run aggressive root system that will interfere with infrastructure.

I am not an advocate of such fence line planting, nor am I an advocate that you have the right to commandeer the use of your neighbours land by exercising a TPZ beyond your boundary line.

There is no black and white legal case here, I can see your dilemma and your neighbours. I personally would not feel entitled to say to any neighbour that you cannot build or do what you want on your side of the fence because I have this tree here.

In Brisbane a lady has a large protected fig tree on her property. Of course a large parcel of land is affected and impacts upon the ability to develop the area, consequently she took the council etc to court and won a reduction of 25% in her land value, being a rich suburb that equated to $437,500

In this instance with the tree so close to the fence line your neighbours argument could be that any land given up for the tree should be compensated for. If the tree is not protected and it's purely at your discretion then it would be a case for you to pay him the necessary amount and make good/pay for any future issues that occur (subsidence, cracks, fences, plumbing etc).

The issue is deeper than you think and you need to consider more than the tree as you have to live with your neighbour.

You will find I consistently post that no tree parts should trespass your boundaries, contain the trees including roots to within the property boundaries and these issues will not arise. Where necessary root barriers to be installed.

Do I think the tree will die? No

Do I think the tree will blow over? No, because it likely has a decent root system and buttresses.

Do I think remedy is possible to increase survival and decrease chances of decay? Yes

Do I think you should discuss the tree with your neighbour and accept it if he chooses it to be cut down? Yes I do as accepting people's thoughts without prejudice or bias means you sincerely care and are not just there to push your own agenda/antagonise.

What is the future of that tree? That is up to you and your neighbour frankly.

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brown

Yep I agree that the neighbour has the right to build, however I disagree with you regards the tree's structural stability. The tree now has no roots on the tensional side of its lean, and is growing in sand. A bad combination for a 20m tall tree in an exposed position. I did discuss with the neighbour and he didn't want to know. My issue is that the tree has been made dangerous through no fault of the tree owners and I don't think she should have to pay for its removal or severe pruning.

Eric Frei

Sand is a more penetrable growing media than say clay, roots can navigate further and deeper.

Buttress roots on the leeward side of trees is known to prevent blow overs, they act as compression members.

As mentioned in prior post mitigation is plausible.

What she thinks, what the neighbour thinks .... like a boxing match everyone in their own corner and no-one meeting in the middle unless it's for a punch up. Why I hate fence line tree disputes, no tree .... no dispute.

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Brent Ferris

Eric that article


Is food for thought. Have there been any followup studies on this issue?

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Darrell Mcleod

I think the council is wrong here but what's new and it depends on local and or state laws etc

Love to see some of these situations tested federally and some uniformity gained through Australia



My view is both parties your client and neighbours should get their heads together and face facts - could the carport have been located elswwhere?

Logically the neighbour should be able to do what they want with their land but the tree was there first - how long has each party owned their lots?

See how complicated this shite gets

Given the reality of what has happened - it is futile crying over spilt milk

Remove the tree?

If the neighbour came along later; if the tree was there first - neighbour should pay

Rob Chace

is that property in forrestfield?