Trees (Disputes Between Neighbours) Act 2006 by David To | April 2007 Area of Expertise | Business & Property
In an attempt to address perceived problems associated with the dispute resolution process between private parties (commonly residential neighbours) about trees, the NSW Government has enacted the Trees (Disputes Between Neighbours) Act 2006 (“the Trees Act”), which commenced on 2 February 2007. Although the main purpose of the Act is to create a system where parties may apply to the Land and Environment Court for an order in relation to trees, the Act also adds a new Vendor prescribed warranty in the Conveyancing (Sale of Land) Regulations 2005. This has effect on the obligations of current and potential vendors in any sale of land in NSW affected by the Trees Act.
Brief Overview of the Trees Act The Trees Act applies to trees situated on land in NSW zoned “residential” (excluding rural-residential), village, township, industrial or business. The Trees Act does not apply to land that is vested in, or managed by a council. Section 5 of the Act prohibits parties bringing a nuisance claim for damage caused by a tree covered by the Trees Act. However, the Trees Act does not apply to disputes between neighbours in relation to matters such as the obstruction of views or access to light. Section 7 allows an affected landowner to seek an order from the Land and Environment Court NSW (“the Court”) to remedy, restrain or prevent damage to property on one’s land, or to prevent injury to any person, because of a tree that is situated on adjoining land. Section 9 deals with the types of Orders that the Court can make to remedy, restrain or prevent damage as described above. Specifically, section 9(2) lists the orders that the Court can make and some examples include: (a)
requiring a party to take specific action to remedy, restrain or prevent damage (or further damage if that damage has already occurred) to property; or
(b)
requiring a party to take specific action to prevent injury to any person; or
(c)
authorising an applicant concerned to take specified action to prevent injury to any person; or
(d)
authorising land to be entered for the purposes of carrying out an order under the section (including obtaining quotes); or
(e)
requiring the payment of costs associated with works ordered under the section; or
(f )
requiring payment of compensation for damage to property; or
(g)
requiring the replacement of a tree that the Court orders to be removed and for the new tree to be maintained to a mature growth.
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Before the Court determines an application brought to it under the Trees Act, section 12 states that the Court is to consider the following matters: (a)
the location of the tree concerned in relation to the boundary of the land on which the tree is situated and any premises;
(b) whether interference with the tree would require consent or other authorisation under the Environmental Planning and Assessment Act 1979 or the Heritage Act 1977, and if so, whether consent or authorisation has been obtained; and (c)
whether the tree has any historical, cultural, social or scientific value, including factors such as a contribution to the local ecosystem and biodiversity, natural landscape, scenic value of the land, intrinsic value to the public or impact on soil stability.
Considerations relevant to specific applications to the Court include whether: (a) any thing other than the tree has or is contributing to any such damage or likelihood of damage; and (b) any steps have been taken by the applicant or the owner of the land on which the tree is situated to prevent or rectify any such damage or injury.
Vendor’s Alert For the purposes of vendors, the Trees Act amends the Conveyancing (Sale of Land) Regulation 2005 to require vendors to give a warranty regarding any application or order made by the Court in relation to trees on their property. That is, on all Contracts for Sale of Land made after 2 February 2007, vendors warrant that the land to be sold is not subject to the following adverse affectation: i.
an application for an order under the Trees Act; or
ii.
any order under the Trees Act that requires work to be carried out in relation to a tree if that work has not been carried out fully in compliance with that order.
Further, the Trees Act amends the Environmental Planning and Assessment Act 1979 to provide that section 149(2) planning certificates (which are a prescribed document for Contracts for Sale) must also include information as to whether an order has been made under the Trees Act to carry out work in relation to a tree on the land, but only if the local council has been notified of the order. It must be remembered that should vendors breach the prescribed warranty i.e failure to disclose the existence of an application or an order under the Trees Act affecting their land, a purchaser may validly rescind the contract at any time prior to completion.
Purchaser’s Alert Orders made by the Court under the Trees Act also bind purchasers of the land affected by the order, if the original owner required to carry out work ceases to be owner before the work is carried out. Therefore, if a purchaser buys land from a vendor, and the applicant gives the purchaser a copy of the order, the purchaser will be required to carry the work out in satisfaction of the order. The time limit specified in the order will start on the date the purchaser receives the order from the applicant.
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Conclusion The Trees Act is a welcome attempt to deal with the frequent problems arising between neighbours involving trees. It is a pity that the jurisdiction was not also extended to the Local Court as well as the Land and Environment Court. The Act also leaves unresolved the contentious area of right to a view and access to light. Vendors and purchasers of real estate will also need to be aware of the greater obligations imposed by the Act.
For more information, please cotnact:
David To Lawyer T: 02 8257 5719 david.to@turkslegal.com.au
Sydney | Level 29, Angel Place, 123 Pitt Street, Sydney, NSW 2000 | T: 02 8257 5700 | F: 02 9239 0922 Melbourne | Level 10 (North Tower) 459 Collins Street , Melbourne, VIC 3000 | T: 03 8600 5000 | F: 03 8600 5099
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