Neighbour’s trees obstructing sunlight views or likely to cause damage to property or injury to any person

16/10/2023

For many many years there have been neighbouring disputes however it appears that over the recent years neighbouring disputes have to a degree, escalated. 

Watson & Watson have acted for parties involved in such disputes over numerous years most of which were resolved without resorting to a Court hearing.

For many years before 1980, houses within towns and cities were generally built on a quarter acre block and the majority of the houses constructed were single storey houses.  Since 1970 there have been changes as to the make up of residential properties to accommodate the increasing population over a period of time.

Increasingly sunlight views and privacy have become very important to owners, residents and occupiers of their home.  Many owners and occupiers have planted gardens including trees.  Some of the planting of trees form a hedge which is utilised for owners to create privacy within their own lot however there is a secondary effect, which is that those trees if planted and let to grow, will create issues as to sunlight and views of the neighbours.  These elements have been a cause of many disputes over recent years.

The Trees (Disputes between Neighbours) Act 2006 is an Act to attempt to resolve some of these issues.  Originally an Owner could make an application to the Land and Environment Court to restrain or prevent damage to property on their land or to prevent injury to a person as a consequence of a tree to which the Act applied which was situated on adjoining land.

Later in about May 2010 the Trees (Dispute between Neighbours) Act was expanded to allow the Court to make Orders relating to “hedges” that obstruct sunlight or views.  This provision applies only to groups of two or more trees that are planted in the ground or otherwise so as to form a hedge and rise to a height of at least 2.5 metres above existing ground level. 

The Act provides that the Court needs to consider numerous matters, at least 19 matters of which the last is such other matters as the Court considers relevant in the circumstances in the case. 

The Land and Environment Court has made many decisions in relation to those matters which assists in determining the likelihood of an Order being made in any particular circumstance.  As always, it is better if a solution can be found between the neighbours and most often there is a resolution that is satisfactory to each of the neighbours, however this is not always the case.

In many cases it is appropriate to engage an arborist who has the necessary experience including experience with the Court process and giving evidence if it arises that the matter cannot be resolved. 

At Watson & Watson we have been involved in numerous disputes in relation to the effect of trees either planted by the Owner on the Owner’s land or planted on the neighbour’s land which has affected one or other Owner.

Most of many of the 19 listed matters that the Court needs to consider will not be relevant in most cases.  One of the important issues is what was the situation of the “offending” trees as at the date of purchase of the property by the Applicant who is complaining about the neighbour’s trees?  It is important in these circumstances, to ascertain what was the situation in relation to view or sunlight as at the date of the purchase or commencement of occupation by the applicant compared with the situation as at the date of the Hearing.

In one recent case in which we acted for the Owner of a property who had constructed a new home near the ridge which allowed views to the north and to the ocean. Part of the design, included trees of an exotic nature which had a “trunk” without any branches with a canopy of a significant breath at the time of a complaint by the neighbour that the trees adversely affected his views.On further investigation, we ascertained that the trees were slow growing and the trunk did not contain any growth and the growth was effectively at the crown at the top of the tree, and was somewhat symmetrical and columnar in form growing considerably taller than the diameter of the trunk.  The effect of this was that once the trees had grown to maturity, there would be little adverse effect on the neighbour’s views to the ocean and sunlight.  On this basis, the Court dismissed the neighbour’s claim that the trees needed to be removed or cut back. 

Also increasingly there are circumstances, that affect Owners of strata units within a strata building.  There are some other issues as to the different affect of some “affecting trees” on each of the separate units.

If you find yourself in the situation of such a dispute, please contact the experienced Lawyers at Watson & Watson who have been involved in Building and Construction, Strata and associated matters for many years by contacting Richard Watson, Accredited Specialist, Commercial Litigation (Building and Construction Stream) by contacting his Personal Assistant Shereen DaGloria to discuss your matter and seek appropriate advice.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 9221 6011.