Trees (Disputes Between Neighbours) Act 2006

This Act is the Trees (Disputes Between Neighbours) Act 2006.

This Act commences on a day or days to be appointed by proclamation.

In this Act—

council has the same meaning as it has in the Local Government Act 1993.

Crown land has the same meaning as it has in the Crown Land Management Act 2016.

interfere with a tree includes cut down, fell, remove, kill, destroy, poison, ringbark, uproot or burn a tree or any part of a tree (including its roots).

owner of land includes the occupier of the land.

the Court means the Land and Environment Court.

tree includes any woody perennial plant, any plant resembling a tree in form and size, and any other plant prescribed by the regulations.

window includes a glass sliding door, a door with a window, a skylight and any other similar thing.

For the purposes of this Act—

a reference to land within a zone designated “rural-residential” includes a reference to land within a “large lot residential” land use zone, and

a reference to land within a particular designated zone includes a reference to land within any zone prescribed by the regulations as a zone equivalent to that particular designated zone but does not include a reference to land within any zone prescribed by the regulations as a zone that is not equivalent to that particular designated zone.

Notes included in this Act do not form part of this Act.

This Act applies only to trees situated on the following land—

any land within a zone designated “residential”, “rural-residential”, “village”, “township”, “industrial” or “business” under an environmental planning instrument (within the meaning of the Environmental Planning and Assessment Act 1979) or, having regard to the purpose of the zone, having the substantial character of a zone so designated,

any land of a kind prescribed by the regulations for the purposes of this section.

This Act does not apply to trees situated on—

any land that is vested in, or managed by, a council, or

any land of a kind prescribed by the regulations.

For the purposes of this Act, a tree is situated on land if the tree is situated wholly or principally on the land.

Without limiting subsection (3), a tree that is removed following damage or injury that gave rise to an application under Part 2 is still taken to be situated on land for the purposes of the application if the tree was situated wholly or principally on the land immediately before the damage or injury occurred.

No action may be brought in nuisance as a result of damage caused by a tree to which Part 2 applies or as a result of an obstruction of sunlight to the window of a dwelling, or of a view from a dwelling, caused by trees to which Part 2A applies.

Except as provided by subsection (3), an order under Part 2 or 2A does not authorise or require a person—

to carry out any work or engage in any activity for which a consent or other authorisation must be obtained under any other Act without that consent or authorisation, or

to carry out any work or engage in any activity that is prohibited by or under any other Act.

Except as provided by subsection (3), a person may not apply to the Court for an order under Part 2 or 2A if the carrying out of the work or engagement in the activity concerned is prohibited by or under another Act.

An order under Part 2 or 2A has effect despite any requirement that would otherwise apply for a consent or other authorisation in relation to the tree concerned to be obtained under the Environmental Planning and Assessment Act 1979 or the Heritage Act 1977.

An owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land.

An applicant for an order under this Part must give notice of the lodging of the application and the terms of any order sought at least 21 days before a hearing in relation to the application to—

the owner of the land on which the tree is situated, and

any relevant authority that would, in accordance with section 13, be entitled to appear in proceedings in relation to the tree, and

any other person the applicant has reason to believe will be affected by the order.

The Court may direct that notice of an application be given to a person or that notice be given in a specified manner or within a specified period.

The Court may waive the requirement to give notice or vary the period of notice under this section if it thinks it appropriate to do so in the circumstances.

The Court may make such orders as it thinks fit to remedy, restrain or prevent damage to property, or to prevent injury to any person, as a consequence of the tree the subject of the application concerned.

Without limiting the powers of the Court to make orders under subsection (1), an order made under that subsection may—

require the taking of specified action to remedy damage to property, or

require the taking of specified action to restrain or prevent damage or, if damage has already occurred, further damage, to property, or

require the taking of specified action to prevent injury to any person, or

require the making of an application to obtain any consent or other authorisation referred to in section 6 (1) (a), or

authorise the applicant concerned to take specified action to remedy, restrain or prevent damage or (if damage has already occurred) further damage to property, or

authorise the applicant concerned to take specified action to prevent injury to any person, or

authorise land to be entered for the purposes of carrying out an order under this section (including for the purposes of obtaining quotations for the carrying out of work on the land), or

require the payment of costs associated with carrying out an order under this section, or

require the payment of compensation for damage to property, or

require the replacement of a tree that the Court orders to be removed and for the new tree to be maintained to a mature growth.

The Court must not make an order under this Part unless it is satisfied—

that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, and

if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 8.

The Court must not make an order under this Part unless it is satisfied that the tree concerned—

has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or

is likely to cause injury to any person.

Before determining an application made under this Part, the Court is to consider the following matters—

the location of the tree concerned in relation to the boundary of the land on which the tree is situated and any premises,

whether interference with the tree would, in the absence of section 6 (3), require any consent or other authorisation under the Environmental Planning and Assessment Act 1979 or the Heritage Act 1977 and, if so, whether any such consent or authorisation has been obtained,

whether interference with the trees would, in the absence of section 25 (t) (Legislative exclusions) of the Native Vegetation Act 2003, require approval under that Act,

the impact any pruning (including the maintenance of the tree at a certain height, width or shape) would have on the tree,

any contribution of the tree to privacy, landscaping, garden design, heritage values or protection from the sun, wind, noise, smells or smoke or the amenity of the land on which it is situated,

whether the tree has any historical, cultural, social or scientific value,

any contribution of the tree to the local ecosystem and biodiversity,

any contribution of the tree to the natural landscape and scenic value of the land on which it is situated or the locality concerned,

the intrinsic value of the tree to public amenity,

any impact of the tree on soil stability, the water table or other natural features of the land or locality concerned,

if the applicant alleges that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property—

anything, other than the tree, that has contributed, or is contributing, to any such damage or likelihood of damage, including any act or omission by the applicant and the impact of any trees owned by the applicant, and

any steps taken by the applicant or the owner of the land on which the tree is situated to prevent or rectify any such damage,

if the applicant alleges that the tree concerned is likely to cause injury to any person—

anything, other than the tree, that has contributed, or is contributing, to any such likelihood, including any act or omission by the applicant and the impact of any trees owned by the applicant, and

any steps taken by the applicant or the owner of the land on which the tree is situated to prevent any such injury,

such other matters as the Court considers relevant in the circumstances of the case.

A local council or the Heritage Council (a relevant authority) may appear before the Court in any proceedings under this Part in relation to a tree if the consent or other authorisation of the relevant authority to interfere with the tree would be required, in the absence of section 6 (3), under the Environmental Planning and Assessment Act 1979 or the Heritage Act 1977.