Trees and hedges

A person who wishes to have a tree or hedge on the neighbour’s land pruned or removed, or who wishes to obtain compensation for damage to their property caused by a tree on a neighbour's land, may apply to the Land and Environment Court to obtain these orders. The application is allocated to Class 2 of the Court’s jurisdiction.

Do I need a lawyer or can I run this claim myself?

Lawyers can be engaged to advise, prepare documents and/or represent parties in tree and hedge disputes. However, it is common for parties to be self-represented and prepare the application or the response to the application under Part 2 or 2A of the Act. Tree or hedge disputes pages on the Land and Environment Court website assist with understanding the process including:-

• preparing, filing and serving the application
• understanding practice notes related to tree and hedge disputes
• Understanding the court process

What sort of orders can I obtain from the Land and Environment Court (the Court)?

Orders for tree disputes under section 9 of the Act include:-

• to remedy damage to property
• to restrain or prevent damage or further damage to property
• to prevent injury to any person
• requiring an application for consent be made to a body such as the Heritage Council
• authorising the applicant to take specific action to remedy, restrain or prevent damage or injury
• authorising entry onto land for the purpose of carrying out an order
• for the payment of costs associated with the carrying out of an order
• for compensation for damage to property
• requiring that a tree be replaced.

Some examples are for orders to:-

• remove a tree, grind or poison its stump and remove offending roots
• prune overhanging tree limbs
• pay for roofing work and replacement of tiles damaged by fallen tree limbs
• pay for repair/replacement costs for sewer pipes, cracked walls or paths badly damaged by tree roots
• pay for installation of a root control barrier.

Orders under section 14D of the Act include:-

• pruning the trees and maintaining them at a certain height, width or shape
• removing the trees and replacing them with trees of a different species
• authorising entry to the land to carry out the orders
• payment of the costs of the work.

An order for compensation for the obstruction, however, is not available (section 14D). ( Nadine Behan Neighbours and the law Legal Information Access Centre (LIAC), State Library of New South Wales, 2017, Chapter 8)

What preliminary work do I need to do to prepare my application?

Title search/Property zoning

It is recommended that applicants undertake:
- an online property search with the NSW Land Registry Services or InfoTrack to determine the title particulars (Lot and Deposited Plan number and full name of all of the owners of the adjoining property)
-a search of the zoning of the property at NSW Planning Portal

Experts to be engaged

It is recommended that if your application needs proof of the cause of the damage from the tree, the type, extent and cost of the damage then relevant expert arborists, builders, and engineers with appropriate qualification and experience be engaged to support the application. Experts in sunlight loss to windows and tree surveying may also be needed. Start with inquiries with peak bodies like Institute of Australian Consulting Aboriculturalists for arborists.

The Young Lawyers (Law Society of NSW) Guide for deciding whether an expert is needed or choosing experts may be helpful (see particularly chapter 4-the duties and responsibilities of an expert).

Other evidentiary information

Consider whether photographs, videos or diagrams like a shade diagram can be provided to provide evidence about loss or damage from the tree or hedge.

Can I trim back the branches of a tree or a hedge myself?

Before you prune or remove a tree you must apply for permission from the local council for a permit or a development approval. The type of work or the species, type and condition of the tree may result in exemptions from the need for approval. Land in bushfire prone areas have different requirements-see Rural Fire Service information page.

Do I have to use mediation to resolve my dispute?

The Court must be satisfied that the parties have attempted to resolve the dispute before the matter is listed for final hearing. Mediation is not compulsory but it is an effective way to try to resolve the matter. The Community Justice Centre offers a free mediation service.

Do I have to pay the other parties’ costs if I am unsuccessful with my application or defending the claim?

Generally, costs orders are not granted under Part 3 Rule 3.7 of the Land Environment Court Rules 2007. However under some circumstances, an application for costs may be made separately to the Court. Non-legal costs of preparing the application and other costs such as expert fees must be borne by the parties. Other helpful information (particularly under ‘Trees Act -Understanding the Law’