5. Applying the new Act to neighbourhood tree disputes

 

Introduction

5.1 This chapter explains how the new Act should be applied to tree disputes.

5.2 The consultation paper asked the community a series of questions about these matters. This chapter examines the community’s responses. It then describes key features of the statutory schemes to resolve tree disputes in New South Wales, Queensland and Tasmania.1 The Commission’s recommendations about what should be included in the new Act in Victoria are explained. The key features to be addressed by the new Act are:

Trees, land and proximity

Who can be a party to a tree dispute

What problems are within the scope of the new Act

Who should be notified of an action

Application requirements.

Trees, land and proximity

Definition of ‘tree’

5.3 The consultation paper invited community responses on the types of tree (or vegetation) that should be included in the new Act.

5.4 The word ‘tree’ in this report denotes all vegetation that may cause a dispute between neighbours. Disputes can arise over a wide variety of vegetation, including trees, grasses, bushes, creepers and vines, and even dead trees.2

5.5 The Macquarie Dictionary defines a tree as ‘a perennial plant having a permanent woody, self-supporting main stem or trunk, usually growing to a considerable height, and usually developing branches at some distance from the ground’.3 It defines ‘vegetation’ as ‘plants collectively; the plant life of a particular region considered as a whole’.4

5.6 There are very few definitions of ‘tree’ in Victorian legislation. Some existing definitions are:

The Forests Act 1958 (Vic) provides that a ‘tree or trees’ includes ‘trees shrubs bushes seedlings saplings and reshoots whether alive or dead’.5

The Country Fire Authority Act 1958 (Vic) defines ‘scrub or vegetation’ to include ‘trees bushes plants and undergrowth of all kinds and sizes whether living or dead and whether standing or not standing, and also includes any part of any such trees bushes plants or undergrowth whether severed or not severed’.6

5.7 At the local government level, trees are defined in different ways. The Melbourne City Council’s definition includes ‘the trunk, branches, canopy and root system of [a] tree’.7 Nillumbik Shire Council defines a tree as a ‘long lived woody perennial plant greater than (or usually greater than) 3 metres in height with one or relatively few main stems
or trunks’.8

Other jurisdictions—definition of ‘tree’

5.8 New South Wales and Queensland have similar definitions in their tree dispute Acts. The NSW Act defines a tree as ‘any woody perennial plant, any plant resembling a tree in form and size, and any other plant prescribed by the regulations’.9Additional problematic vegetation has since been prescribed in regulation.

5.9 Bamboo, technically a type of grass,10was originally excluded from the definition of ‘tree’ under the NSW Act but since 2007 has been prescribed under the NSW Regulations.11

5.10 Vines12were also originally excluded from the definition of ‘tree’ in the NSW Act.13However, following statutory review of the Act by the New South Wales Government in 2009, it was decided that vines can cause damage to, for example, ‘the paintwork on the outside of a house, or caus[e] water damage by blocking a downpipe or drain’, or pose ‘a risk of personal injury’.14The review concluded that there was no reason why disputes relating to vines should have to be resolved by ‘the more complicated procedure in nuisance’15and recommended that vines be declared a prescribed plant under the NSW Regulations.16The NSW Regulations now prescribe ‘any type of vine’.17

5.11 The Queensland Act defines a tree as ‘any woody perennial plant’ or ‘any plant resembling a tree in form and size’ such as ‘bamboo, banana plant, palm and cactus’.18 A tree also includes a bare trunk, a stump rooted in the land and a dead tree.19

5.12 In its statutory review of the Queensland Act, the Queensland Law Reform Commission (QLRC) found that ‘tree’ is currently ‘widely and clearly’ defined. However, the QLRC recommended that the definition should be amended to include ‘root or the roots of any living or dead tree’ because roots are an integral part of the tree and can cause disputes. This recommendation has not been implemented.20

5.13 In the Tasmanian Act, the term ‘plant’ is preferred over ‘tree’. A plant is defined as ‘any plant or part of a plant’21 and includes:

a tree

a hedge or group of plants

fruits, seeds, leaves or flowers, of a plant

a bare trunk

a stump rooted in the land

any root of a plant

a dead plant.22

Community responses—definition of ‘tree’

5.14 The Commission was told that it is important to provide a clear definition of ‘tree’ in any new Act.23

5.15 Most community members were in favour of broadly defining ‘tree’ under a new Act so that it includes any vegetation.24 Some people pointed to existing definitions of trees as suitable starting points—for example, definitions commonly found in general dictionaries,25 the Australian Standard AS 4373-2007—Pruning of Amenity Trees,26or arboricultural and gardening textbooks such as The Oxford Companion to Australian Gardens.27

5.16 The Victorian Civil and Administrative Tribunal (VCAT) preferred ‘vegetation’ to ‘tree’ because it is broader.28 A tree disputes consultant in New South Wales stated that defining ‘tree’ too broadly may be confusing and add complexity.29

5.17 A small number of people preferred a narrower definition.30 One submission stated that only significant trees should be included, such as those considered ‘culturally, historically, botanically’31 significant. Another stated that the new Act should cover trees that exceed the height of dividing fences on common boundaries.32

5.18 Some community members stated that noxious weeds should be excluded from the ambit of a new Act.33 However, most community members believed that the new Act should not discriminate between species and should include any type of vegetation, including those classified as a weed.34 One person stated that vegetation that forms part of ‘farm forestry’ should also be excluded.35

Vegetation that is known to cause disputes

5.19 Many cautioned that commonly recognised definitions of ‘tree’ may exclude other types of vegetation known to cause tree disputes.36

5.20 Arborist Robert Mineo, explained that bamboo, a type of grass, and palms, a type of grasstree, would not meet the typical definition of ‘tree’ but could affect neighbouring land.37 The City of Port Phillip stated that palms should be covered by a new Act because they can give rise to problems.38 Nillumbik Shire Council stated that cootamundra wattle, pine trees and Burgen are all examples of vegetation that can be problematic. 39

5.21 A tree disputes consultant in New South Wales explained:

Plants, woody vines, palms and bamboo all have the potential to cause damage to property and feature in a range of cases heard by the Land and Environment Court of New South Wales. The inclusion of this vegetation may add an extra layer of complexity to the scheme, however, it will benefit those disputants who are dealing with tree disputes arising from woody vines, palms, bamboo or ‘plants’.40

5.22 Dr Gregory Moore OAM added that the common dictionary term ‘woody’, used to describe secondary growth that is characteristic of trees, excludes palms, cycads, tree ferns and grass trees.41 Dr Moore noted that most people would consider these types of vegetation to be trees even though they are technically categorised as pachycauls.42 He stated: ‘Given this wide public perception, it might be wise to include pachycauls in legislation’.43

5.23 Dr Moore also noted that common definitions referring to a single stem or trunk do not take into account multi-stemmed types of tree species unique to Australia, such as mallee,44 eucalypts and acacias. Dr Moore suggested that a more suitable description can be found in the Oxford Companion to Australian Gardening, which describes trees as ‘long-lived woody perennial plants greater than three metres in height, with one or relatively few stems or trunks’.45

5.24 One submission stated that shrubs that are large can cause disputes and so should be included.46 Professor Phillip Hamilton suggested that height may be a relevant descriptor under a new Act to allow for vegetation that is not technically classified as a tree (for example, vines or plants used in hedges) but that can grow to a significant size.47

5.25 Baw Baw Shire Council observed that ideas about what constitutes significant size may be subjective—for example, trees considered large in metropolitan areas may be considered small in regional areas that have more vegetated space.48

5.26 Overall, most community members who favoured a broad approach suggested that the new Act should include shrubs, hedges, vines, cacti, palms and bamboo in addition to trees.49

Dead trees, parts of trees and roots

5.27 Arborist Dr Karen Smith stated that dead trees should be included, as well as ‘fruit, seeds, pollen, leaves and flowers of a plant … Roots should be included, as should suckers.’50

5.28 A tree disputes consultant in New South Wales stated that the new Act should include a tree that has been wholly removed by the time legal action has commenced.51 Before the tree was removed it may have damaged neighbouring property, and the affected neighbour may seek to be reimbursed for the cost of repairs from the tree owner.

5.29 The Land and Environment Court of New South Wales (NSWLEC) stated that the broad definition of ‘tree’ under the NSW Act, with the option to add further species through accompanying Regulations, has been working well. The NSWLEC also explained that the broad definition implies the inclusion of tree roots and dead trees.52

5.30 A tree disputes consultant in New South Wales noted the usefulness of the phrase ‘any plant resembling a tree in form and size’. They considered this ‘a helpful, yet non-specific definition’ which allows a small amount of interpretation and flexibility.53

The Commission’s conclusions—definition of ‘tree’

5.31 It is important for reasons of clarity to define the type of vegetation covered in the new statutory scheme as broadly as possible so that it is fair and inclusive. However, too broad a definition may lack clarity and require too much interpretation.

5.32 The word ‘tree’ rather than ‘vegetation’ is preferred because it is more specific and excludes smaller, short-lived types of vegetation that are unlikely to significantly impact people’s property or safety, or result in significant environmental or cultural loss.

5.33 Existing definitions of ‘tree’ in legislation and other instruments are typically a synthesis of common meanings found in general dictionaries and technical literature.

5.34 The Commission notes the comments of the NSWLEC and the QLRC that the New South Wales and Queensland schemes are adequate and working well to capture most genuine disputes. The Commission supports a similar approach for the new Act in Victoria.

5.35 ‘Tree’ should be defined by its common meaning of a ‘woody perennial plant’. Height or age (for example, ‘long-lived’) descriptors are not recommended because these characteristics vary throughout existing definitions and literature. Whether a tree is considered large or old is also subjective and will vary too greatly depending on the vegetation that is commonly found in the area. Any height or age requirements may unfairly exclude people from seeking legal relief. Additionally, the vitality of a tree should not matter because trees that are dying or dead may still impact on people’s land and safety. These trees may also hold important cultural, heritage and environmental value.

5.36 ‘Tree’ should explicitly include vines, cacti, palms and bamboo. The term ‘pachycaul’ is not widely understood by the community and a more suitable approach would be to list further particular species in regulations for clarity.

5.37 For reasons of fairness and flexibility, any other vegetation that ‘resembles a tree in form and size’54 should be included. This takes into account mallee trees that do not meet any technical requirements of a singular tree trunk, certain species of shrubs known to grow quite large, and also allows the decision maker discretion. This would also encompass a ‘pachycaul’.

5.38 Hedges should not be included, as this represents a style of planting, rather than a species of vegetation.55 Any plants or vegetation in the form of a hedge will be included irrespective of how they are styled if they meet the definition.

5.39 In addition, vegetation classified as a noxious weed should be captured under the new Act if it otherwise meets the definition of ‘tree’ for example, ‘any plant that resembles a tree in form and size’.

5.40 The definition of ‘tree’ should include all parts of a tree, whether joined to a main structure or separate. This would include roots and bare trunks. In addition, trees that have been partially or wholly removed should be included. An affected neighbour may still wish to seek orders for payment of the cost of repairs to their property even if the tree has been wholly removed.

5.41 Finally, there should be scope to include any other specific vegetation in the definition of tree by way of Regulations accompanying the new Act.

To which land should the Act apply?

5.42 When considering which types of land should fall within the scope of the new Act, the Commission sought to strike a balance between providing a remedy to affected neighbours and ensuring that the application of the Act is not overly broad or burdensome to owners or occupiers of land.

5.43 The consultation paper asked the community whether the new Act should be limited to land in particular zones.

Standard Victorian zones

5.44 Land in Victoria is zoned to outline the purpose of land use and any permitted or prohibited developments. There are six categories:

public

residential

commercial

industrial

rural

special purpose.56

5.45 The Commission is not considering disputes about trees located on public land, for example street trees, trees in parks and trees on regulatory easements held by a council or service authority, as these are excluded from the terms of this inquiry.57 Public land is also excluded from the operation of interstate Acts.58

Residential zones

5.46 Tree disputes are reportedly more common in residential zones than other land use zones.59 There are six residential zones that permit residential use to varying degrees in cities and towns, including small rural townships.60

Commercial zones

5.47 There are three commercial zones. Residential land uses are limited in a commercial zone and must not undermine the zone’s primary focus on employment and economic development.61

Industrial zones

5.48 There are three industrial zones. Accommodation is generally prohibited in these zones to provide for and promote manufacturing, storage and distribution of goods and associated uses.62 One industrial zone acts as a buffer between the first two types of industrial zone and local communities, ‘which allows for industries and associated uses compatible with the nearby community’.63

Rural zones

5.49 Rural zones64 include six distinct categories:

The Farming Zone is the most common rural zone and is strongly focused on protecting and promoting farming and agriculture.65

Two types of Green Wedge Zones protect and conserve green wedge land (Green Wedge and Green Wedge A).66 There are 12 designated green wedges in non-urban areas forming a ring around metropolitan Melbourne.67 These areas of land are recognised and protected for a variety of purposes, including agricultural, environmental, historic, landscape or recreational values, or mineral and stone resources.68 Green wedge zones can be used to support rural living. One of the purposes a Green Wedge A Zone is to ‘recognise and protect the amenity of existing rural living areas’.69

The Rural Activity Zone provides for the use of land for agriculture, such as the primary production of plant or animal produce, and for uses of land and development compatible with agricultural uses.70 While a dwelling may be used for accommodation purposes, this use must be compatible with agriculture and the environmental and landscape characteristics of the area.71

The Rural Conservation Zone protects and enhances the natural resources and biodiversity of the area and imposes limits on other uses of land, such as residential dwellings.72 One of its purposes is to provide for agricultural uses of land compatible with the conservation of the environment and the landscape values of the area.73 The zone allows land to be used for a dwelling provided the lot is at least two hectares in size.74 A permit is required to use dwellings on land lots smaller than two hectares.

The Rural Living Zone provides for residential uses of land in rural areas. Although agricultural activities are permitted within the zone, emphasis is given to the protection of residential amenity.75

Special purpose zones

5.50 Special Purpose Zones include nine distinct categories. The Special Use Zone is essentially a catch-all zone if no other zoning is appropriate.76 It can also be considered where the site adjoins more than one zone and the new use of land is not known.77

5.51 The Capital City Zone, Docklands Zone, Activity Centre Zone, Priority Development Zone, and the Comprehensive Development Zone all permit residential land use within urban areas.78 The purpose of the Urban Growth Zone is to manage the transition of nonurban land into urban land, with a significant portion of this land to be rezoned for residential use.79

5.52 The Urban Floodway Zone applies to urban land where the primary function of the land is to carry or store floodwater.80 Land use is restricted to uses such as recreation or agriculture.81 The Port Zone covers Victoria’s commercial trading ports and provides for shipping, road and railway access. It provides for the use and development of commercial trading ports within Victoria pursuant to the Port Management Act 1995 (Vic).82

Other jurisdictions—to which land should the Act apply?

New South Wales

5.53 The application of the NSW Act was initially restricted to urban areas only.83 Upon review, it was expanded to include land zoned as rural–residential.84 Rural–residential land had been initially excluded because of concerns that the NSW Act might interfere with existing legislation, for example, laws relating to land clearing and native vegetation.85 This meant that a person with a tree dispute in a rural–residential area was not able to seek a remedy under the NSW Act.

5.54 The NSW Department of Justice and Attorney General concluded that extending the NSW Act to rural–residential zones would overlap, but not interfere, with the Native Vegetation Act 2003 (NSW).86 The Native Vegetation Act contained various exceptions relating to the clearance of vegetation to remove or reduce personal injury or damage to property, which was the problem that the NSW Act sought to address.87 Amendment of the NSW Act followed.

5.55 At present, the NSW Act applies to land zoned residential, rural–residential, village, township, industrial or business.88 In addition, land outside the listed zones may fall within the ambit of the NSW Act if the zone has the substantial character of one of the listed zones.89 The NSW Act does not appear to apply to land that is used for primary production purposes, for example extensive agricultural uses, or land use that is permitted under the Forestry Act 2012 (NSW).90

5.56 The NSWLEC informed the Commission that most tree disputes originate from residential zones, with few applications being made beyond this zone.91

Queensland

5.57 Similarly, the Queensland Act applies to urban areas and rural–residential land.92 The Act does not apply to trees situated on rural land or to land that is more than four hectares.93 The Act also does not apply to trees planted or maintained for commercial purposes.94

5.58 In its review of the operation of the Queensland Act, the QLRC recommended the inclusion of land greater than four hectares in size to address the inequity of a neighbour on a smaller lot of land not being able to take action against a neighbour on a larger lot but the neighbour on a larger lot being able to commence action against the neighbour on the smaller lot.95 This recommendation has not been implemented at the time of writing.

Tasmania

5.59 The Tasmanian Law Reform Institute (TLRI) recommended that a new Tasmanian Act apply to all land zones, ‘but that the zoning of the land on which the tree or hedge is situated be a factor that must be considered by the decision-maker’.96 This was in line with community feedback which supported no restriction on the application of a new Act to particular zones.97

5.60 The Tasmanian Act excludes council-owned or managed land, rail network land, reserves and certain forestry land.98 Plants that are planted or maintained for a purpose that is necessary or desirable for the management or operation of a farm are also excluded, as are plants that are planted or maintained to be sold.99 The Tasmanian Government indicated it did not want the Act to interfere with the rights of primary producers. It noted that ‘the statutory scheme should not impose an unreasonable burden on people who are trying to make a living’.100 The Second Reading Speech for the Tasmanian Bill explains:

these excluded categories are more likely to capture large parcels of land that are located in rural or remote locations—the land is often unoccupied, or it may have high conservation value or serve some other kind of public purpose or be of benefit to the broader community.101

Community responses—to which land should the Act apply?

5.61 More than half of those who responded to the issue of land zoning were in favour of the new Act applying to all types of land use within Victoria.102

5.62 Arborist Dr Karen Smith explained that the application of the new Act should not be limited to particular zones because many urban dwellings can be located next to public, agricultural, industrial and commercial land.103

5.63 Consultations with local councils revealed that most tree disputes between neighbours occur in urban and residential areas.104 Nillumbik Shire Council reported that most complaints about trees on private land are from residents living in urban areas.105 It was suggested that this is because people on smaller parcels of land live in closer proximity to one another.106 One community member noted that ‘a large proportion of all trees on private residential properties are located close to property boundaries. This is a fruitful, and growing, source of disputation between neighbours’.107

5.64 From December 2011 to May 2017 DSCV received 18,727 tree-related enquiries from the community.108 Of these, 13,301 (71 per cent) were from metropolitan areas within Victoria,109 while 3000 were located in regional Victoria (16 per cent).110

5.65 While these figures indicate that the vast majority of tree-related enquiries arise in metropolitan areas, there are many tree disputes in regional Victoria. The Commission was told that in regional Victoria tree disputes most often occur in population centres such as towns rather than rural areas. In these locations the subject matter of the disputes is often similar to metropolitan tree disputes.111 Baw Baw Shire Council proposed that zoning under a new Act should be limited to residential zones or areas that resemble residential areas.112

5.66 One submission described a dispute in a rural agricultural area concerning a line of trees planted close to a shared fence.113 This submission suggested that the trees on the neighbouring property had the potential to cause damage or harm to the boundary fence and to crops through contamination. The submission expressed frustration at the limited resolution options available for tree disputes in rural areas.114

5.67 HVP Plantations have suggested that tree disputes ‘occur state-wide and are not limited to suburban areas’ and that it has been involved in disputes with both residential and farming neighbours. HVP Plantations told the Commission that it is involved in approximately 10 tree disputes a year in rural areas. 115

5.68 Owners or occupiers of rural land may also be concerned about the risk of a bushfire posed by vegetation on neighbouring land.116

The Commission’s conclusions—to which land should the Act apply?

5.69 The new Act should apply to land zones in urban areas or to land that provides for residential living (including some rural areas), while giving discretion to the decision-making body to consider land that has the substantial character of one of these zones.
A new Act would therefore apply to:

the six residential zones

the three commercial zones

the three industrial zones

the two green wedge zones (as they support rural living and are located on the urban fringe)

the rural living zone

the rural conservation zone

special purpose zones excluding the special use zone, the urban floodway zone and the port zone

any other land prescribed in regulation

5.70 The Commission has recommended including all commercial and industrial zones as this is the approach taken by all interstate statutory schemes. Some of these zones are likely to interface with residential uses of land, and so it is more straightforward to include them all rather than omit certain categories of commercial and industrial land uses.

5.71 The new Act will also apply to land that has the substantial character of one of the zones designated in the Act. This is the approach in NSW. For example, in exercising its discretion in relation to land that may have the substantial character of a residential zone the NSWLEC has considered the ‘settlement pattern in the vicinity of the two properties involved’ and the ‘streetscape of the road in which they are located’ to determine that the zoning was analogous to a residential zone.117

5.72 Land that is used for commercial timber plantations should also be excluded from the ambit of the new Act.118 This is consistent with interstate Acts119 and recognises the unique nature and needs of these commercial operations as identified by HVP Plantations in its submission.120 The Commission notes that plantations must be managed according to various statutory requirements, including the Code of Practice for Timber Production 2014.121 Government may also determine that other types of land should be excluded from the ambit of the Act as occurs interstate.122

5.73 There was considerable support for including all zones in a new Act. The Commission acknowledges that tree disputes can arise on land that is primarily used for farming and agricultural production.123 The application of the new Act will extend to land in most zones in Victoria. However, it will not extend to the farming and rural activity zones. These types of zones are also excluded in the interstate Acts.124 The recommended approach provides a remedy for many intractable neighbourhood tree disputes, while not interfering with land primarily used for farming and agricultural purposes.

5.74 The Commission acknowledges HVP Plantations’ suggestion that that there is a ‘case for statutory intervention to provide guidance to rural landowners in treed environments, and to draw a contemporary compromise between the benefits and the risks that trees bring to neighbours’.125 The Commission accepts that tree disputes in rural settings often involve different considerations and it is important that the new Act reflect this. The decision-making principles recommended in Chapter 8 will help VCAT to balance competing rights and interests fairly and transparently. Those principles require VCAT to consider a broad range of matters including the broader benefits of trees and the relevant zoning and the related purpose of the land. These principles will also help people to resolve their own disputes outside a formal VCAT hearing or in mediation.

Exclusion of Farming and Rural Activity Zones

5.75 While amenity and property damage may prove problematic for neighbours close to each other in urban areas, land predominantly used for farming and agricultural purposes tends to raise different kinds of issues. Land holders in rural areas may ‘want trees on their farms to shelter farm stock and crops; control soil erosion and dryland salinity; enhance their property values; and, if at all possible, generate alternative sources of income’.126 Baw Baw Shire Council noted that:

Farmers have different motivations to urban land users. A person in a metropolitan area may have great concern over the removal of a 500 year old red gum. For a farmer those concerns may be overridden by practical considerations and the need to use the land for agricultural purposes.127

5.76 The purpose of the Farming Zone is to ensure that non-agricultural uses, particularly dwellings, do not adversely affect the use of land for agriculture.128 The Farming Zone is the most flexible zone in terms of agricultural uses and many agricultural uses do not require a permit.129 This zone is explicitly focused on preserving productive agricultural land and ‘farming uses are encouraged to establish and expand with as little restriction as possible’.130 Agriculture Victoria provides tips to would-be purchasers of rural land on its website, and advises:

There are not many formal requirements for farmers to minimise the normal impacts arising from the legitimate agricultural enterprises they may run, and there are few requirements for them to formally notify you of what they intend to do … Living together in rural Victoria comes down to having reasonable expectations of how the land in your neighbourhood is used, and exercising a little give and take.131

5.77 Similarly, the main feature of the Rural Activity Zone is the ‘flexibility that it provides for farming and other land uses to co-exist’.132 The growth of farming practices is supported but a wide range of non-farming commercial and retail uses are also encouraged.133 The Department of Environment, Land, Water and Planning advises:

The zone should not be mistaken for a quasi-rural residential zone. Housing is only one of a number of uses that may be considered in the zone, and, in some circumstances, it may be incompatible with the particular mix of uses that the planning authority is seeking to achieve.134

5.78 Vegetation can serve a wide range of purposes in rural areas. For example, fallen timber and ground litter provide hiding, basking and nesting places, and a source of food for animals and birds.135Agriculture Victoria notes that fallen timber ‘can provide important stepping stones for safe passage of wildlife across the landscape’ and ‘messy branches touching the ground are important avenues of access for animals such as goannas and snakes’.136 Moreover, single paddock trees provide shade and shelter for domestic stock and valuable habitats for insects, birds and bats. Agriculture Victoria state that ‘the loss of paddock trees can soon result in the loss of these endangered species’.137

5.79 Existing legislative provisions that protect vegetation on private land in rural areas do not always extend to rural activity and farming zones, in order to facilitate agricultural production. The Native Vegetation Particular Provisions do not extend to some land uses in the rural activity and farming zones.138

5.80 HVP Plantations is Victoria’s largest plantation owner. It owns native bushland, forest and managed plantations, operating as a ‘tree farmer’ that grows and harvests trees for sale to timber customers.139 HVP Plantations noted differences between urban and rural parcels of land. In the urban environment:

The number of trees managed by any one landowner is generally few, and a landowner may reasonably be expected to keep an eye on the state of the trees in their garden, but in a rural environment, large numbers of trees over significant lengths of boundary can be involved. Regular inspection of such trees is mostly impractical, and a tree which is “defective” is also likely to be a tree with significant habitat value which is valued by the community.140

5.81 HVP Plantations has 240,000 hectares of land and around 920 kilometres of direct boundaries to other private land holders.141 In some cases a farmer may also have multiple neighbours where subdivision has occurred on a neighbouring property.142 HVP noted that ‘it is unjust if a neighbour can subdivide their land and make a large sum of money from so doing, but in so doing impose a significant and ongoing cost of tree inspection and management on their neighbour’.143 It suggested that sometimes neighbours may be notified of the hazards of neighbouring trees through Section 173 Agreements (discussed in Chapter 10) but this does not occur often.144

5.82 HVP suggested that it resolves tree disputes informally and internally because the common law cannot be easily applied in the rural setting.145 Baw Baw Shire also reported anecdotally that farmers tend to resolve disputes about vegetation informally with each other, rather than going through processes they see as too burdensome or bureaucratic.146Agriculture Victoria provides case studies of how alternative dispute resolution has assisted parties living in rural Victoria to come to agreement.147

5.83 The exclusion of farming and rural activity zones means that the Act will not apply to a dispute involving neighbours on farming land or to a dispute between a tree owner on farming land and an affected neighbour on adjoining residential land. In these situations, the affected neighbour would need to establish that the land has the substantial character of one of the listed zones or is prescribed in regulation to obtain a remedy in VCAT.

5.84 The recommendation to exclude certain zones from the application of the Act should be revisited when it has been operating for five years, to find out whether the exclusion has detrimentally affected many people with genuine disputes who have no other simple way of resolving them. Because unique considerations arise in relation to the management of trees on rural-agricultural land it would be sensible to first ascertain how well the Act helps resolve disputes in rural zones that the Commission recommends fall within the scope of the Act, for example, the rural conservation zone. This approach of adding zones after a period of operation has also occurred in NSW.148

Review of the Act

5.85 At review, regulation could specify that the Act apply to additional zones. Alternatively, regulation could also exclude some zones if it was determined that the application of the Act as initially implemented was too broad and hindered the purpose of any of those zones. At review Government should consult with farming and agricultural users of land to obtain specific input from rural communities about the application of the Act.149

5.86 Review could also determine if any other types of land should be excluded from the ambit of the Act.

5.87 This review recommendation is discussed further in Chapter 13.

Proximity to affected neighbour’s land

5.88 The consultation paper asked whether there should be a requirement in the new Act for the affected neighbour’s land to adjoin the land on which the tree is situated (for example, to share a common boundary) and, if so, how the relevant degree of proximity should be defined.

Other jurisdictions—proximity of the tree

5.89 In New South Wales the tree subject to legal action under the Act must be on ‘adjoining land’.150 This is not defined under the NSW Act. However, case law has determined this to mean properties that abut each other as well as those that are not touching, for example where they are separated by land but there is a ‘relevant connection’.151

5.90 A relevant connection will exist if the tree is capable of causing damage to the other property or harming people on it.152 The NSWLEC also gave the example of a common corner post that was held to provide a relevant connection indicating that the neighbours’ land was adjoining under the NSW Act.153 The NSWLEC has found that properties with

intervening ‘gaps’ are ‘adjoining’ for the purposes of the New South Wales Act where those gaps comprise uninhabited land such as roadways, laneways and battle-axe driveways.154

5.91 In Queensland an affected neighbour’s land must adjoin the land on which the tree is situated, or would adjoin the land if it were not separated by a road.155 This has been interpreted narrowly and requires proof of physical connection between neighbouring lands.156

5.92 In Tasmania an affected neighbour’s land does not need to adjoin the land on which the tree is situated.157 Instead, an affected neighbour’s land needs to be within 25 metres of the base of the neighbouring tree’s trunk or where the stem of a tree connects to a root system.158 The Tasmanian Act’s broader approach ‘recognises that in some cases tree roots can extend horizontally to a distance of up to 25 metres’.159

Community responses—proximity of the tree

5.93Community responses were mixed. Some people favoured limiting legal action to neighbours with adjoining parcels of land (for example, with shared common boundaries)160 while others favoured a broader approach where the tree and the affected neighbour’s land need not be adjoining at all, or were connected in some other way.161

Trees can impact at considerable distance from the trunk

5.94 The Commission was told that a tree’s roots can extend far beyond its canopy, which can cause them to have an impact on properties several doors down from where the tree is situated.162

5.95 The NSWLEC stated that where the issue arises of non-adjoining neighbours being affected by a tree, it may occur in inner urban areas with small properties. The most likely scenario would be a large canopy that overhangs multiple narrow properties. This issue has arisen only once in the NSWLEC and similar issues have not been presented in relation to roots.163

5.96 Some submissions cautioned that the usefulness of a broad approach such as Tasmania’s may be limited.164 It may be difficult to determine which tree the roots originate from if there are multiple trees in the area, without extensive investigation such as lab testing, root radar reports or hydro excavation reports.165 Another submission suggested that the impact is likely to be less severe the greater distance it is away from the tree and more easily resolved through abatement (for example, by cutting away roots) with no significant impact on the tree’s health or structural integrity.166

5.97 The NSWLEC suggested that problems may arise where multiple properties are affected by encroaching roots. It may be difficult to determine the best place to sever roots when they travel across multiple properties. For example, where each property’s sewer connects to a common main, and an application is made over roots entering old pipes on one property, this may require intervention that involves cutting into new, re-sleeved pipes of other properties and excavating unaffected land.167

5.98 The City of Boroondara favoured limiting legal action to neighbours with adjoining land. It considered that the Tasmanian approach may be too broad and that it would be hard to ascertain the direct impact of the tree. There may be situations where a tree may affect neighbouring land without physically encroaching on it in any way, such as in the context of soil hydrology, where a tree may remove water from neighbouring soil, which can compromise the foundations of a dwelling. In these situations, it would become increasingly difficult to prove the alleged impact of a tree at greater distances, particularly in leafy areas where it is difficult or impossible to identify which tree is the source of the problem.168

5.99 The NSWLEC cautioned that a 25-metre rule may raise procedural issues. It would increase the number of interested parties and properties likely to be affected by any orders made. The NSWLEC noted that intervening landowners may need to be made parties to the application where their land is affected in terms of amenity or access to their land is required to carry out works.169 It suggested that although well intentioned, selecting a meterage as the jurisdictional test for proximity was arbitrary and insufficient to cover all contexts—for example, a tree 40 metres tall may impact beyond 25 metres.170

A broader approach

5.100 Some of those in favour of a broader approach suggested that the only relevant threshold should be whether a person’s use and enjoyment of their land is being affected by a tree in the neighbourhood.171 Others stated that whether or not sufficient proximity exists between the tree and the affected neighbour’s land should be determined by the local council in the area.172 Pointon Partners stated that the determination of whether or not sufficient proximity exists is a task best left to the relevant decision-making body.173

5.101 An arborist stated:

It may be a very unlikely situation where a non-neighbour is an affected party but they should not be excluded because their property does not share a boundary with the property on which the tree is located.174

Tree Protection Zone

5.102 Some people suggested that the focus should be on the tree’s own Tree Protection Zone (TPZ) as outlined in the Australian Standard AS 4970-2009—Protection of Trees on Development Sites rather than distances between lands.175 The suggestion was that a person who owns land within a tree protection zone should be entitled to bring an action under the new Act.

5.103 A tree’s TPZ denotes the area of roots and canopy to be isolated and protected from construction disturbances to maintain the health and stability of the tree.176 A TPZ is often used by local councils to protect vegetation during development.177

5.104 Arborist Ben Kenyon explained that ‘any disputed issue within the TPZ could have a significant impact on the health, structure and useful life of a tree’, thus warranting legal intervention, but that parts of the tree outside the TPZ that are causing the neighbour issues can be dealt with directly by the neighbour without affecting the tree.178 Another submission explained that any tree parts, such as branches or roots, that are affecting neighbouring land but are outside the tree’s TPZ should be considered ‘a natural risk of living near trees’.179

The Commission’s conclusions—proximity to affected neighbour’s land

Neighbours’ land should be adjoining

5.105 Allowing any person in the neighbourhood to take legal action against a tree owner would be too broad. It would go beyond the goal of resolving tree disputes between neighbours and reach into the broader community. Disputes about trees that affect the neighbourhood more broadly may be better dealt with through local laws, public health and safety laws, or public nuisance.180

5.106 As the new Act aims to provide for the resolution of tree disputes between neighbours, a certain degree of proximity between neighbouring lands is necessary and sensible. The Commission is of the view that a proximity requirement of adjoining land will be easier for the community to understand and apply than a broader causal link or specified meterage that might require a land survey to accurately measure distances. It will also help to eliminate frivolous or vexatious claims.

5.107 The most straightforward degree of proximity is adjoining parcels of land that share a common boundary. For these purposes a tree may be recognised as being on adjoining land even where there are multiple properties and the relevant boundary between the tree owner’s property and the affected neighbour’s land is short or is a point of convergence of multiple properties.

5.108 To prevent people from being arbitrarily and unfairly excluded from the scheme due to neighbouring public infrastructure or landscapes the Commission proposes that the affected neighbour’s land should be deemed to adjoin the tree owner’s land where it is separated by a:

public road

pedestrian path

laneway

bridge, or

culvert.

5.109 This approach reflects the Queensland Act and cases determined under the NSW Act.

5.110 The Commission’s conclusion is influenced by arguments put forward by some arborists. Generally, the further away a tree is from an affected neighbour’s land, the less significant the impact will be on the land or occupants.

5.111 A number of other practical obstacles will make it harder for neighbours at greater distances to mount a successful case, and so cases are less likely to be brought. These obstacles include the jurisdictional requirements under the proposed Act; the need for claims to be supported by expert evidence from qualified arborists; and the difficulty of identifying the subject tree in leafy areas.

5.112 The recommended definition of adjoining land may leave some neighbours without recourse even if they can prove, for example, that a very tall tree of compromised health would affect a non-adjoining neighbour’s land if it were to fall or drop a large branch.181 In this situation, the affected neighbour’s only options may be to commence legal action for nuisance and seek a quia timet182 injunction or pursue an action for negligence if damage or harm has already occurred.183

5.113 If the tree has caused damage to multiple properties on adjoining land, then separate applications for each affected property would be required. This is consistent with the approach in New South Wales.184

Irregular blocks and public easements

5.114 Some neighbouring land may be diagonally offset or separated by very short distances of public land, including where there is an easement.185 It would be unfair to exclude these neighbours from the scope of the new Act if they were genuinely affected by a neighbouring tree.

5.115 Non-standard issues relating to the threshold of ‘adjoining’ arise very rarely. The NSWLEC has heard approximately 1000 tree disputes since the commencement of the NSW Act, and in only a few cases have unusual issues arisen about the relevant connection test.186

5.116 Further consultation with councils and Land Use Victoria187 may be prudent to ascertain if there are many irregular parcels of land where this is likely to be a significant issue in Victoria. If necessary, the definition of adjoining land could be expanded when the Act is reviewed (discussed in Chapter 13). Such an expansion could take in neighbours who do not share a common boundary but are separated by no more than two metres of public land, or separated by an easement on public land. This distance allows some flexibility while being narrow enough to capture only immediate neighbours.

Private easements should be excluded

5.117 Tree disputes concerning private easements or easements in gross188 on private land should not be included in the new Act, even if the easement adjoins the land of the affected neighbour or tree owner. Disputes about trees that interfere with an easement (both private and in gross) to the detriment of the dominant owner or local authority should be resolved in the usual ways easement disputes are resolved (for example, abatement or legal action in nuisance). This reflects the current approach in New South Wales and the conclusions of the Queensland Law Reform Commission.189

5.118 Although the Commission appreciates the intent of Tasmania’s broader approach to proximity, it considers that it would not provide a significant benefit to neighbours involved in tree disputes.

Trees on boundaries

5.119 The consultation paper asked how trees on boundaries (or trees only partially on one parcel of land) should be dealt with under a statutory scheme.

5.120 Ownership of a tree on private land is usually determined by reference to the location of its trunk.190 A tree is considered a ‘fixture’ on the land—a tangible item of personal property that is attached to and forms part of the land.191

5.121 Vegetation that forms a ‘hedge or similar vegetative barrier’ in the form of a dividing fence is covered by the Fences Act 1968 (Vic).192 Under the Fences Act, neighbours must contribute to the erection or repair of a fence in equal proportions.193

5.122 The Commission is unaware of any cases determined under the common law or any Victorian legislation that set out how liability is to be determined when a tree that is not part of a fence straddles the boundary of two or more properties.194

Other jurisdictions—trees on boundaries

5.123 Under the NSW Act an affected neighbour must establish that the tree affecting them is ‘wholly or principally’ situated on their neighbour’s land.195 The location of the base of the trunk at ground level is used to determine where the tree is situated. The canopy and root system are not a relevant consideration. Where a tree straddles a boundary, the tree will be considered to be ‘principally’ on a person’s land if at least 50 per cent or more of the trunk at ground level is on their side of the boundary.196

5.124 Where a dividing fence does not correctly reflect legal boundary lines or where the location of the base of the trunk is unclear, the NSWLEC may require a land survey to be undertaken.197 A survey or any other investigation for determining the position of the trunk usually occurs during the early stages of the hearing process, such as at the time of lodgement in the Court’s registry or at a preliminary hearing.198 The survey must accurately show the configuration of the base of the tree and its location with respect to the boundary.199

5.125 A tree disputes consultant in New South Wales explained that using the location of the trunk at ground level ‘gives a level of certainty to disputants, requiring upfront research (if self-represented) and preparation, before undertaking Court action’.200

5.126 The NSWLEC may make orders reflecting the proportions of the straddle tree on each parcel of land. For example, in the case of Dallas v Watson,201 a survey found that two-thirds of the straddle tree was situated on the respondent’s land. As a result, the respondent was ordered to pay two-thirds of the total cost of tree removal.202

5.127 If the location of the tree remains unclear and cannot be established by the affected neighbour, such as where the tree has already been removed, then the matter may be dismissed because the tree has not been proven to be ‘principally’ on the tree owner’s land.203

5.128 Under the Queensland Act, the base of the trunk must be ‘wholly or mainly’ on neighbouring land.204 It does not matter if the tree has been removed by the time the application is heard. It is enough for the tree to have once been wholly or mainly on the land. QCAT has not determined any cases concerning ambiguity about whether or not a straddle tree is ‘mainly’ on a tree owner’s land.205

5.129 In Tasmania, a tree is ‘situated on land’ if the base of the trunk, or the place at which the stem of the plant connects with the roots of the plant, is in whole or in part on the land.206 For the purposes of bringing an action under the Tasmanian Act, the tree will be treated as if it lies wholly on the neighbouring land even if it straddles the boundary of adjoining properties. That is, either neighbour, although both are technically tree owners, can issue proceedings if the tree is affecting them in the ways covered by the Tasmanian Act. In determining the extent to which the tree is affecting a neighbour, the proportion of the tree situated on each area of land will be taken into account.207 The Resource Management and Planning Appeal Tribunal (RMPAT) has discretion to make orders against both owners as if they were joint owners or either owner.208

International jurisdictions—trees on boundaries

5.130 The consultation paper detailed the approaches to trees that straddle boundaries in some Canadian provinces and the United States. Laws in these countries take a more collective approach to the ownership of straddle trees by requiring the cost of works to straddle trees to be shared and permission obtained from all owners before works can start.

5.131 In Ontario, Canada, under the Forestry Act, ‘Every tree whose trunk is growing on the boundary between adjoining lands is the common property of the owners of the adjoining lands’ irrespective of who planted the tree.209 Any action taken in relation to the straddle tree without the consent of neighbours will amount to an offence.210 A ‘trunk’ has been interpreted by the Ontario Superior Court of Justice to mean ‘the entire trunk from its point of growth away from its roots up to its top where it branches out to limbs and foliage’.211 All owners of boundary trees are liable for the costs of maintenance or works. The extent of each owner’s liability will depend on the facts of the case.212

5.132 In Saskatchewan, Canada, ‘a straddle tree planted with the agreement of adjoining owners is owned in common and each has a proprietary interest in the whole of the tree that may be protected by registration of a caveat. Where it is not determinable which owner planted the tree, ownership in common will not be implied.’213 In such a case, the tree remains the property of the owner of the land on which the tree was planted even when the trunk, roots and branches extend into neighbouring property.214

5.133 In some states of the United States, where a tree stands on the boundary line with its trunk on both properties, the neighbours own the tree as tenants in common if an ‘intention, acquiescence, or agreement’215 as to its joint ownership can be demonstrated.216 While neighbours may abate up to boundary lines in the usual manner, any significant work that crosses boundary lines or is concerned with the removal of the tree must be done with the agreement of the owners.217

Community responses—trees on boundaries

5.134 Community responses fell into three distinct categories: proportional ownership, shared ownership in equal parts and other suggestions.

5.135 One person related their unresolved dispute about a straddle tree. This person was unable to remove the tree as they wished because the neighbour would not allow them to access their land to carry out the works.218

Proportional ownership

5.136 Most responses preferred proportional ownership—that is, the neighbour with the greater portion of the tree on their property should be deemed to own the tree and be fully responsible for it.219 A range of methods were put forward for assessing ownership. As one arborist explained:

A system of determining the extent of ownership should apply. Does this look solely at the location of the centre of the trunk, the extent of the trunk on each parcel of land, the extent of canopy over each parcel and/or the extent of root system in each parcel? How does one define ownership of a tree? Is proportional liability a reasonable application for attributing liability?220

5.137 One person suggested that in ambiguous circumstances, such as where the tree straddles boundaries in equal proportions, the tree should be deemed to be owned by the neighbour whose property is significantly affected by the tree.221

5.138 Arborist Ben Kenyon stated that the neighbour with the majority of the tree’s Tree Protection Zone (TPZ) on their land should be deemed to own the tree.222

Shared ownership

5.139 A smaller number of people suggested that neighbours should be considered to jointly own a straddle tree in proportion to the cross-sectional area of the trunk at ground level223 or in proportion to the buttress roots224 on each property.225

5.140 One submission endorsed the Ontario approach to straddle trees where the tree is jointly owned by neighbours who need to consent to any proposed works or actions.226 Dr Gregory Moore OAM stated:

I have seen [joint ownership] work very well when both parties have a joint sense of ownership and responsibility—in a sense it forces people to work together to achieve a mutually agreed outcome.227

5.141 Some people also stated that straddle trees should be jointly owned in equal shares regardless of the actual portions of the tree on each property.228

Other suggestions

5.142 Some submissions suggested that ownership of a boundary tree should be determined by an arborist229 or the local council.230

5.143 Some arborists cautioned against determining ownership based on who planted the tree or on which property the tree originated, because determining the origin of the tree can be a difficult task with possibly inconclusive outcomes.231

5.144 Arborist Dr Karen Smith noted that the type of tree may be relevant in any assessments of location along boundary lines, such as whether there is an ‘individual tree, suckers, or vines or bamboo’.232

The Commission’s conclusions—trees on boundaries

5.145 It should not be necessary to identify a single majority-owner of a tree that straddles a boundary for the purposes of commencing legal action. Any neighbour affected by a straddle tree should have the benefit of seeking relief as long as the matter meets the other proposed jurisdictional requirements in the new Act.233 This is a similar approach to the Tasmanian Act.

5.146 The Commission is mindful of not excluding parties from being able to use the proposed scheme. The NSWLEC noted that ‘principally situated’ has been interpreted to mean where the trunk at ground level is equal to or greater than 50 per cent. If this test is not at ground level then it can be difficult to determine the portions of the trunk on each property, especially where the tree is leaning.234

5.147 The Commission observes that either owner of a straddle tree may need to take legal action including, for example, a person who may own 60 per cent of the tree. The owner of 60 per cent of the tree may need to remove or prune a major branch on their neighbour’s side in order to maintain the structural integrity of the tree but would be prohibited from doing so without their neighbour’s consent. In this situation, it would be unfair to exclude parties from seeking legal relief.

5.148 In addition, it would be unfair to hold neighbours who share a straddle tree automatically liable in equal portions for work specified in orders. This is the approach in the Fences Act 1968 (Vic) for neighbours who share a dividing fence. Trees are more complex and dynamic structures than fences. Accordingly, joint responsibility in equal shares without regard for actual portions of the tree may be unfair and may unreasonably burden the person who has a smaller portion of the tree on their land.

5.149 A fairer approach would be for the decision maker to consider the proportions of ownership together with any other relevant factors when making orders. For example, if an order specified tree works totalling $1000, the neighbour with 60 per cent of the tree on their land would be liable to contribute $600; the neighbour with 40 per cent, $400. If the tree is located on properties in equal proportions, the costs would be shared equally.

5.150 Proportional ownership of the tree should be assessed by reference to the proportions of ownership of the base of the trunk (or stem) at ground level. This reflects the approach in New South Wales, Tasmania and Queensland and also mirrors the common law approach which determines ownership based on the location of the trunk of a tree.235 It is easier to determine the base of the trunk at ground level than the TPZ, root system or canopy, which may be difficult to identify without engaging an arborist. Similarly, any method of determining proportions based on the origin of the tree is likely to be too difficult. 236

5.151 Where the boundary lines or proportions are ambiguous due to the nature of the tree or the location of the boundary, the Tribunal could direct parties to have their land surveyed by a licensed surveyor or the tree assessed by an arborist. If this did not provide conclusive results, a sensible approach would be to apportion liability equally.

5.152 Where a tree straddles the boundary of more than two properties, an affected neighbour should name all owners in the application and provide evidence about proportional ownership by reference to the tree trunk. It will then be a matter for the Tribunal to consider who orders should be made against and the proportion of liability.237

Parties to a tree dispute

5.153 The next part of this chapter examines the legal concepts of standing and liability in the new Act. The question of which neighbours can make an application (that is, who has ‘standing’) and who can be held liable is usually determined based on the person’s relationship to the land that is the subject of the dispute.238

Who can commence an action?

5.154 The consultation paper asked who should be able to commence legal action if a new Act was introduced.

5.155 In order to have standing to bring an action in nuisance at common law, the affected neighbour must be in possession of the land affected by the tree. Standing extends to an owner, tenant or licensee with exclusive possession of the land.239

5.156 When fencing disputes occur between neighbours, the Fences Act 1968 (Vic) provides that only an owner of land may take action to resolve disputes about fences located on the common boundary of adjoining land.240 Long-term tenants with five or more years remaining on their lease may be liable to contribute to the costs of fencing disputes.241

Other jurisdictions—who can commence an action

5.157 In Robson v Leischke242 the NSWLEC held that applications in New South Wales are firstly limited to an owner of adjoining land and, by extension, the occupier of adjoining land.243 An occupier must be in physical possession of the land. If the affected property has multiple owners, any one of the owners can apply.244 If multiple properties are affected by the subject tree, the NSWLEC requires separate applications from the owner or occupier of each affected property.245

5.158 Queensland takes a slightly different approach. QCAT will only accept an application by an occupier of land if the registered owner of the land has refused to make the application.246 QCAT also requires separate applications if multiple properties are affected by the subject tree. Joint liability will apply if the land on which the tree is situated has multiple owners.247 It is rare for occupiers of land to make an application to the Tribunal. However, this may arise where a landlord is overseas or cannot be located.248

5.159 The Tasmanian Act operates in a similar way to the Queensland Act. While an owner or occupier of land can apply for an order under the Tasmanian Act, a person who is not an owner of the land can only apply if:

the person has, in writing to the owner, requested the owner of the land to make an application, and

the owner has refused to comply with the request within 42 days.249

Community responses—who can commence an action

5.160 Community responses overwhelmingly supported any person affected by the tree being able to commence legal proceedings under a new Act.250 Some submissions suggested that standing should not depend on demonstrating a certain interest in land.251 As discussed, only owners of land can take legal action to resolve fencing disputes.

The Commission’s conclusions—who can commence an action

5.161 Owners of land affected by a tree on neighbouring land should be able to commence legal proceedings under a new Act to resolve their disputes.

5.162 It would also be appropriate to enable occupiers of land to take legal action where the occupier has asked the owner to commence legal proceedings but the owner has refused to act. This accords with most community responses and reflects the approach in Queensland and Tasmania.

5.163 This approach puts landowners on notice of the dispute. Ultimately, it is in the interests of the landowner to be involved in proceedings because they may end up responsible for any costs.252 In normal leasing arrangements landlords are responsible for major tree pruning, cutting back overhanging branches (such as those near powerlines) and maintaining fire breaks.253 Tenants are generally responsible for garden maintenance such as mowing lawns, weeding and minor pruning.254 Therefore, it is likely to be landowners who assume responsibility for carrying out orders under the new Act.

5.164 By allowing occupiers to take action in the absence of the owner, there is a greater chance that unsafe trees and branches may be addressed before they cause damage or harm.

Who can be found liable?

5.165 The consultation paper asked the related question of who should be found liable for harm or damage caused by trees under a new Act.

5.166 Under a common law action in nuisance, anyone who created the nuisance can be found liable. There is no need for the defendant to have any interest in the land.255 Generally speaking, however, ‘most private nuisances are created by private landowners’.256 To that


end, a tree owner will be found liable for an action in nuisance under common law where they:

created the nuisance

permitted the nuisance to arise by failing to exercise reasonable care

continued or adopted the nuisance, or

negligently failed to remedy or abate the nuisance.257

5.167 Under a common law action in negligence, liability may be imposed on owners or occupiers of neighbouring properties because the common law ‘imposes a duty of care on each neighbour in relation to the other neighbour.’258 Liability will attach to neighbouring owners or occupiers of land in negligence where they failed to exercise reasonable care in relation to their tree, resulting in harm or loss to a neighbour.259

5.168 For legal action arising out of fencing disputes, both owners are liable to contribute in equal proportions.260 In some circumstances, long-term tenants (excluding residential tenants) may have to contribute to the costs. This applies to tenants with at least five years remaining on their lease.261 This is to ensure ‘that the fence to be constructed will meet the needs of present usage’ and this extends to being sufficient for the purposes of both occupiers.262 It also covers situations in which the tenant wishes to have a fence installed that costs more than one which the landlord is required to contribute under the Fences Act.263 Residential tenants are excluded because the ‘erection or replacement of a fence is an improvement to the land and should not be distinguished from other improvements for which a landlord is generally responsible’.264

Other jurisdictions—who can be found liable?

5.169 Under the NSW Act, owners or occupiers of land on which the subject tree is located can be found liable.265

5.170 In Queensland, liability attaches to a ‘tree-keeper’ (tree owner). This accords with the responsibilities placed on a tree-keeper to remove branches that overhang a neighbour’s land and to ensure trees on their land do not cause injury or damage or interfere with a person’s use and enjoyment of land.266 A tree-keeper is generally defined as the registered owner of land or a lessee or licensee of Crown land under the Land Act 1994 (Qld).267 The Queensland Act is careful not to extend liability to residential tenants.268 It provides for joint liability where there are multiple owners of land.269

5.171 In Tasmania liability attaches to owners of land on which the tree is situated. An owner of land is generally defined to include owners of freehold estates, bodies corporate, life tenants and licensees and lessees of Crown land.270 The Tasmanian Act also provides for joint liability where there are multiple owners of land.271 This mirrors the Queensland approach.

5.172 The Tasmanian Act places responsibilities on landowners to remove branches that overhang a neighbour’s land and to ensure trees on their land do not cause injury or damage or interfere with a person’s use and enjoyment of land.272 The Second Reading Speech to the Tasmanian Act makes it clear that residential tenants will not have responsibility or liability for plants under the Act.273

5.173 All interstate schemes take into account a broad range of considerations before determining remedies. In this way, any acts or omissions by the affected neighbour or the owner of the land on which the tree is situated may affect the outcome of the dispute. The NSW Act requires the NSWLEC to consider:

anything, other than the tree, that has contributed, or is contributing, to any such injury or damage or likelihood of injury or damage, including:

any act or omission by the applicant and the impact of any other trees (including 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.274

5.174 In several cases the NSWLEC has ordered the affected neighbour rather than the owner to pay the cost of removing a dying tree likely to cause future damage.275 In these cases the Court determined that the tree had been poisoned by the affected neighbour and that this action led to the tree being classified as dangerous.276 See Chapter 8 for a discussion of decision-making principles in the new Act.

Community responses—who can be found liable?

5.175 Many responses strongly supported liability attaching to owners of the land on which the tree is situated.277 One submission stated, ‘Putting the onus on tree owners supports the concept of prevention, which is always the very best option, especially when we are talking about potential threats to people’s lives.’278

5.176 One submission noted that mere ownership of the land on which the tree is located should not by itself provide enough justification for liability to be imposed.279 Rather, it was suggested that an element of negligence should also be required.280

5.177 Arborist Dr Karen Smith stated that ‘a tenant should not bear responsibility for tree damage’.281

The Commission’s conclusions—who can be found liable?

5.178 Liability should attach to the owner of land on which the tree is situated (the tree owner). This should apply to an owner’s corporation if the land is common property. Joint liability should apply to multiple owners of land. An owner of land could be defined in the new Act as it is in the Fences Act 1968 (Vic) with respect to private interests in land, as:

the Registered Proprietor of the fee simple in the land under the Transfer of Land Act 1958 (Vic) (not in an identified folio), or a person empowered under an Act to execute a transfer of the land, or

an owner of land in an identified folio under the Transfer of Land Act 1958 (Vic), or

a person who has an estate in fee simple in the land (except a mortgagee), or who is empowered to convey an estate in fee simple in the land, or

 • the owner’s corporation if the land is common property.

5.179 The Commission notes that liability under the NSW Act may extend to occupiers of land,282 but in accordance with submissions and consultations, the Commission considers that liability should be limited to the owner of the land.

5.180 While some long-term tenants may be found liable to contribute to the costs of fencing works under the Fences Act,283 the Commission does not consider that this is appropriate for the new Act. The rationale for interventions and the outcomes sought for fencing and tree disputes are different. Action may still be taken against a tenant in nuisance at common law. See Chapter 3.

5.181 Liability should not extend to residential tenants. This is consistent with the approach under the Fences Act. The interests of a landowner in relation to a tree are different to those of a tenant or occupier of land. Moreover, trees can add significant value to land.284 Further, landlords (owners) are generally responsible for vegetation maintenance pursuant to lease arrangements and will therefore be responsible for the costs associated with orders made under the new Act.285 It would be unreasonable for liability to attach to a tenant who may not have planted the tree and may only be at the premises for a short time. The interstate statutory schemes in Queensland and Tasmania do not extend liability to residential tenants.

5.182 The Commission is comfortable with the new Act diverging from the approach to liability at common law in negligence and nuisance. At common law it would be necessary to demonstrate that the owner of land created, adopted or continued a nuisance, or was negligent for failing to exercise reasonable care.286 Different considerations will apply under the new Act. The focus of the new Act is primarily about preventing future damage and harm. It recognises that trees are dynamic, living organisms and the risks they may pose to individuals on adjoining land will not necessary arise from acts or omissions of the landowner.

5.183 However, in determining the extent of liability, VCAT will be guided by the decision-making principles recommended in Chapter 8, which include consideration of acts or omissions by the affected neighbour or anything, other than the tree, that has contributed, or is contributing, to any harm or damage or likelihood of harm or damage.

What problems are within the scope of the new Act?

5.184 The consultation paper sought responses about the types of tree problem that should be addressed by the new Act. In particular, two main issues that are a cause of common problems were considered:

damage or interference

harm (or injury).

5.185 Damage claims relate to property on neighbouring land (such as a house, a garden shed or a car) or also the land itself (such as a garden). Sometimes damage caused by the tree may be preceded by some level of ongoing interference, which in turn causes annoyance or discomfort to the affected neighbour but does not amount to property damage.

5.186 Harm in this report refers to harm to people—causing injury or otherwise affecting their health or safety. Under the NSW, Queensland and Tasmanian Acts, harm is called ‘injury’.287 Future harm is harm that is expected to occur.

5.187 The Commission has not considered a compensation scheme for harm suffered (also referred to as ‘personal injury’). The remedies available under the new Act focus on practical remedies related to tree management.

Other jurisdictions—problems within scope

New South Wales

5.188 The NSWLEC 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 to which the Act applies that is situated on adjoining land.288

5.189 In New South Wales any sort of damage, regardless of degree, can be claimed. However, minor or insignificant damage is not covered by the Act.289 Actual damage or physical damage to the land or other structures on the land is actionable as well as to moveable objects located on property.290 The NSWLEC has determined that garden plants, fences, animals outdoor furniture and motor vehicles are ‘property on the land’.291 ‘Property on the land’ need not be above ground, as shown by cases concerning sewer pipes.292 However, ‘damage to the surface of the land such as raising a mound of earth or drying


the soil without consequential damage to other property’ is not covered.293 Future damage is considered by the NSWLEC if it is satisfied that it is likely to occur within the next 12 months.294

5.190 Annoyance or discomfort caused by a neighbouring tree is not actionable.295 The dropping of leaves or fruit by urban trees would not ordinarily provide the basis for court intervention.296 This reasoning is the subject of a ‘tree dispute principle’ that is used by the Court to guide its decision making. These are discussed in more detail in Chapter 8. Although tree dispute principles are not legally binding, the NSWLEC informed the Commission that the Court ‘has not felt the need to depart from existing tree dispute principles’.297

5.191 Injury is not defined in the NSW Act but case law suggests that injury encompasses allergic reactions or other medical conditions.298 Applicants are required to provide properly qualified medical or scientific evidence of a link between the injury and the trees subject to the application.299 For example, ‘medical or arboricultural evidence and any supporting medical or peer-reviewed literature’ that supports their claim that the tree is the cause of the injury.300

5.192 Claims can be brought to prevent future harm that is likely to occur within 12 months.301 The NSWLEC has made it clear that it will not entertain claims for compensation for personal injury.302

Queensland and Tasmania

5.193 In Queensland, QCAT has jurisdiction to make orders in relation to a tree to prevent serious injury to any person or to remedy, restrain or prevent:

serious damage to the neighbour’s land or any property on the neighbour’s land, or

substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land.303

5.194 An example of ‘substantial, ongoing and unreasonable interference’ may include a build-up of leaves blocking the gutter or spoiling the tank water for drinking purposes.304 Another might be where leaf litter is so continuous and extensive it causes an internal roof leak.305 However, in most cases leaf litter is unlikely to satisfy the interference threshold. The Explanatory Notes to the Queensland Act state that leaf litter is generally considered ‘to be expected in urban or suburban areas with trees’ and it is reasonable to expect that residents ‘will perform some level of regular maintenance, including cleaning gutters and leaf litter’.306

5.195 The Queensland Law Reform Commission considered whether QCAT’s jurisdiction should be broadened ‘to include a power to make an order to cut or remove any overhanging branch …’.307 However the QLRC concluded that it was ‘concerned that such a reform might significantly increase QCAT’s workload by the addition of less serious cases’.308 The QLRC further notes that ‘In many cases, overhanging branch issues are addressed by neighbours by informal agreement or by a neighbour exercising the right of abatement’.309

5.196 Future damage is actionable if QCAT is satisfied the damage is likely to occur within 12 months. Under the Queensland Act injury to persons must be serious, such as a severe allergic reaction.310 Serious injury must be likely within 12 months.

5.197 The Tasmanian Act generally mirrors the Queensland approach by providing RMPAT with jurisdiction to make orders in relation to land affected by a plant. This means that it can make orders if a plant has caused, is causing, or is likely within the next 12 months to cause:

serious injury to a person on the affected land311 or

serious damage to the affected land or any property on the affected land or

substantial, ongoing and unreasonable interference with the use and enjoyment by a person of the affected land.312

5.198 Unlike the Queensland Act, the Tasmanian Act also includes a specific power for RMPAT to make an order where branches of a plant overhang affected land.313 This is unique to the Tasmanian scheme and no orders under this provision have been made by the Tribunal.

Community responses—problems within scope

Damage

5.199 Responses were sought from the community about the degree of damage (the seriousness of damage) and the kind of damage (that is, to land or property) that should be covered by a new Act; and whether future damage should be actionable.

5.200 Some submissions suggested placing a monetary value on the amount of damage that should give rise to an action.314 One suggested that damage amounting to over $4000 should be sufficient to bring an action.315 Another thought damage greater than $500 should be actionable.316

5.201 Most responses indicated that damage should be both observable and proven.317 For example, one respondent suggested ‘visible damage that can be proven and seen, and has altered from the original condition’.318 Arborist Robert Mineo stated that ‘any damage under a new scheme would have to be serious or significant’.319

5.202 Most submissions considered that both damage to the land itself, and to property on the land, for example a motor vehicle, should be actionable.320

5.203 Community feedback generally supported the inclusion of future damage within the scope of a new Act. One submission noted that ‘future damage is an important concern and must be included’.321 Others suggested timeframes and risk assessment methodologies as safeguards.322 Arborist Dr Karen Smith stated that future damage would be appropriate if assessed within a timeframe of 12 months and ‘when assessed according to the Australian Standard for Risk Management’.323 Dr Smith noted that damage that may be caused at some unknown time would not be sufficient.324

5.204 Dr Gregory Moore OAM explained that ‘it can be difficult to predict a tree’s future’.325 He identified two risk assessment tools that are used to assess the future risk of trees:

Tree Risk Assessment Qualification

Quantified Tree Risk Assessment.326

5.205 The City of Boroondara uses an industry-recognised risk assessment methodology and AQF Level 5 arborists who have practical experience in assessing risks posed by trees.327 Boroondara advised that:

Any claims relating to future damage or harm need to be based on evidence, not the perceptions of neighbours, and must be assessed by a qualified arborist using an industry recognised risk assessment methodology … risk assessments that extend beyond 12 months can provide inaccurate results that do not accurately represent tree risk and appropriate management options.328

5.206 Heritage Victoria suggested that a 12-month time period may be too long for an arborists’ assessment.329 It would be difficult for an arborist to assess risk that far into the future.

5.207 The Commission accepts that it is difficult to assess the likelihood of trees failing in the future. However, the use of expert evidence can assist. Expert evidence will help to prevent unnecessary interference with trees assessed as healthy. Expert evidence is discussed in Chapter 8.

Harm to individuals

5.208 Some community responses suggested that the primary function of the new Act should be to prevent harm caused by trees. Baw Baw Shire Council emphasised that the key issue to be addressed by reform is ‘the minimisation of risk to the community’.330 One submission stated, ‘It is my belief that there should be a determined effort to prevent injury and/or death of people and the damage of property.’331 Another emphatically expressed the view that ‘people’s safety should always be the priority’.332 HVP Plantations noted that human health and safety is key.333

5.209 There was general agreement that medical evidence should be required where an affected neighbour is seeking a remedy for harm such as the removal of a tree.334

5.210 Arborist Dr Karen Smith noted ‘whilst special medical conditions do exist, they are rare. So for medical conditions a medical certificate should be provided stating the tree is the cause of the medical condition. Many trees thought to be allergenic are actually not, and claims need to be evidence based.’335

5.211 Dr Gregory Moore OAM supported this position, stating that some councils now rely on expert allergy testing rather than a report from a general practitioner.336 The City of Port Phillip noted that ‘if a pollen allergy is cited as the reason for requesting removal of the tree or palm, then this will generally need to be supported by specialist medical evidence’.337

5.212 Members of the community felt that harm should include harm to anyone at all, including occupiers and others on the land.338 One submission noted that ‘it will usually be occupiers that are affected’.339

5.213 The NSWLEC informed the Commission that ‘the Court is able to consider the risk of injury “to any person”. This includes not only residents of the affected land, but anyone who is present on the land or visits the land.’340 In relation to the issue of future harm, on balance, the community was in favour of it being actionable.341 The City of Port Phillip stated that claims of future harm generally require evidence that the tree is dying or other evidence of decay.342

Interference (not causing actual damage)

5.214 In the consultation paper the community was asked ‘Should interference (not causing damage) be actionable under a new scheme? If so, what degree of interference?’

5.215 Interference has been described by the NSWLEC as annoyance or discomfort without causing actual damage.343 This may include the dropping of leaf litter on neighbouring land.344

5.216 Community feedback was evenly divided between those who supported the inclusion of interference,345 and those who did not.346 Some expressed concern about interference that had the potential to cause damage,347 others were concerned about ‘excessive leaf or bark drop’.348 A number of submissions reflected some misunderstanding about the question asked and the definition of interference.

5.217 One person supported an action in interference in cases where ongoing maintenance costs may be incurred.349 Another cautioned against the inclusion of less serious matters:

Interference (not causing damage) creates a level of complexity that may be difficult to assess … Moreover, making interference actionable may dilute the gravitas of the proposed statutory scheme and burden the Court with undue applications. A statutory scheme should be an effective, last resort for tree disputes or for those neighbours who find themselves within intractable conflict seeking adjudication.350

5.218 Other submissions noted:

maintenance issues caused by overhanging branches should ‘never be grounds on which to bring action’;351

‘you should not be able to take someone to court for something frivolous like leaf litter’;352 and

‘it would be a waste of resources for proceedings to be held that may cause the tree owner to act in a manner the complainant has available to them at the time’ (that is, the reasonable action of self-abatement).353

5.219 A number of local councils spoke with the Commission about how they respond to enquiries from residents about interference on private land. These councils were all in agreement that interference should not be actionable under a new Act.354 Councils respond to enquiries by encouraging landowners to maintain the vegetation on their land so it does not unreasonably interfere with adjoining lots of land.355

5.220 Nillumbik Shire Council explained that leaf litter (including in a swimming pool) and other normal maintenance issues associated with living in a leafy neighbourhood have not been sufficient to justify the removal of a tree protected under the Nillumbik Planning Scheme and ‘should not be actionable under a new scheme’.356

5.221 The City of Greater Bendigo adopts the following policy for tree management in the region:

As trees are living organisms there will be some degree of leaf and other plant litter as these are shed as part of their natural life cycle. It is not unreasonable to expect residents to undertake home maintenance activities as part of having trees in the urban environment.357

The Commission’s conclusions—problems within scope—damage and harm

5.222 In Chapter 4 it was identified that the primary consideration of the new Act should be the prevention of damage and harm caused by neighbouring trees. People often have different perceptions about the benefits or disadvantages of trees. Some people are annoyed by a minor amount of leaf litter whereas others may choose to move to leafy suburbs to maximise the advantages that they see flowing from a green neighbourhood. The new Act needs to strike a balance between competing rights and interests fairly and transparently. An underlying policy focus is to prevent damage and harm caused by trees and to balance this with their benefits.

Damage

5.223 The new Act should capture damage of any kind and not be limited to damage of a ‘significant degree’. This approach is generally supported in the submissions. Requiring damage to be ‘serious’ or ‘significant’ may unduly complicate the new Act.

5.224 The Commission supports the various submissions that suggest claims of damage should be supported by expert evidence that demonstrates a causal link between the claimed damage and the tree. This should reduce trivial claims. Expert evidence is considered in Chapter 8.

5.225 In accordance with community views, ‘damage’ should include damage both to land and to property. Affected neighbours should be able to bring an action for damage to fences and carports for example, as well as damage to the land itself, such as gardens.

5.226 Future damage should be included as a cause of action but limited to damage that is likely within 12 months. This is consistent with interstate statutory schemes and recommended by practising arborists.358

5.227 Because the likelihood of a tree causing future damage is difficult to assess, it is recommended that risk assessments should be undertaken by a suitably qualified arborist (AQF Level 5 or above) with training in industry-recognised risk assessment methods and at least two years of practical experience. See Chapter 8.

Harm to individuals

5.228 The new Act should allow claims to be made to address existing harm and harm that is likely to occur within the next 12 months. This is consistent with community responses that called for the new Act to provide a mechanism to respond to the risk of harm posed by some trees, and is consistent with the approach in interstate Acts.

5.229 Where appropriate, claims of harm should be evidenced by both medical experts and arborists. For example, claims of allergies should be supported by medical testing and not simply a letter from a general practitioner.359 For claims relating to psychological distress, the NSWLEC approach is appropriate. The NSWLEC does not make orders in relation to the tree where there is no arboricultural basis or evidence to support fears about a tree falling or dropping a branch.360

5.230 The potential for future harm should extend to owners and occupiers of the affected land, and could include visitors. This mirrors the interstate approach.361 The 12-month limit on future harm is in keeping with submissions from arborists who stated that risk assessments that extend beyond 12 months do not accurately represent the risk posed by the tree and appropriate management options.362

5.231 The new Act is concerned with the prevention of harm. It is not intended to provide a compensation scheme for personal injury. While the orders recommended in Chapter 9 extend to compensating applicants for damage caused to their property or land, a similar order is not recommended for harm caused to people. This is consistent with interstate schemes. These schemes are also preventative in nature. For example, in Robson v Leischke363 Chief Justice Preston distinguished the causes of action under the NSW Act from breaches of a duty imposed on a person under tort law, explaining that:

The necessary nexus is between the ‘tree’ and … likely injury to any person; it is not between some act, or omission to act where there was a duty to act, of the owner or occupier of the land on which the tree is situated … and likely injury to any person.364

5.232 The focus is on action that can be taken in relation to the tree to address harm that is occurring and to prevent harm from occurring in the future. Harm that has already been caused may be an evidentiary factor that VCAT will consider in determining the likelihood of future harm and the appropriate remedy.

5.233 A person who commences an action under the new Act to prevent damage or harm is not precluded from bringing an action in negligence under the Wrongs Act 1958 (Vic).365 An applicant may still choose to pursue a matter in the Magistrates’ Court for nuisance or negligence and seek compensation for personal injury that way if they wish. See Chapter 4.366

Interference (not causing actual damage)

5.234 On balance the Commission found the submissions against the inclusion of interference persuasive. A tree that interferes with a neighbours use and enjoyment of their land in the form of annoyance or discomfort should not fall within the scope of the Act. This approach is consistent with the approach in New South Wales. It also reflects the underlying policy position that whilst leaf litter can create mess on neighbouring land and property, it is an ordinary part of community life in urban environments. If the interference is such that it causes damage to the land or property of the affected neighbour, the Act will provide a remedy.

5.235 Whilst the Queensland and Tasmanian Acts extend liability for interference it must be ‘substantial, ongoing and unreasonable’. This is similar to the approach to nuisance claims at common law. To meet this threshold interference is likely to involve some sort of property damage or harm. As noted earlier it was not envisaged that the Queensland Act provide a remedy for leaf litter that is an ordinary part of suburban life and that residents can be expected to perform some level of regular associated maintenance.

5.236 The Commission is concerned that the inclusion of interference, may result in trivial or vexatious claims and may discourage neighbours from resolving disputes on a more informal basis. The Nillumbik Shire Council suggested that a new scheme should not provide scope for vindictive neighbours to bring claims without merit against neighbours on adjoining land.367 Disputes about interference that do not cause damage are more appropriate for alternative forms of dispute resolution. See Chapter 6.

5.237 Excluding interference claims from the Act will mean that an affected neighbour will not be able to obtain a remedy for a tree branch that overhangs the boundary but does not cause damage or pose a risk of harm. In a similar way to leaf litter, an overhanging branch is unlikely to meet the common law requirement for a ‘substantial and unreasonable’ interference unless some sort of special damage can also be established.368 The NSWLEC case of Robson v Leischke369 set out examples of cases where overhanging branches have been held to constitute an actionable private nuisance:

Branches of a yew tree poisoned stock on adjoining land;370

Branches of a tree interfered with the growth of fruit trees on the neighbour’s land;371

Branches of trees projected to such an extent over the neighbour’s land that they brushed against their house and the leaves blocked the downpipe causing two rooms to be flooded;372

Branches of a row of pine trees overhung the neighbour’s property and deposited pine needles and rubbish which poisoned the soil.373

5.238 Where an affected neighbour is unable to establish that the overhanging branch is causing damage or posing a risk of harm under the new Act, a remedy may still be available at common law through nuisance.

5.239 Because overhanging branches are a common problem in Victoria, the Commission recommends that Government consider the usefulness of a statutory branch removal process when the Act is reviewed after 5 years of operation. This recommendation is discussed in Chapters 6 and 13.

Who should be notified of an action?

5.240 This part examines who should receive notice of an application under the new Act. Trees on private land may be protected by local laws, planning scheme mechanisms or other laws.374 This means that councils and other authorities may be affected by VCAT orders under the new Act and may need to be notified. Further, the owner of affected land would need to be notified of any action taken by an occupier of that land in relation to a problem tree.

Other jurisdictions—who should be notified?

5.241 The NSW Act requires an applicant to provide an application and any orders sought at least 21 days before the date of the first hearing to:

the tree owner

any relevant authority that would be entitled to appear in proceedings in relation to the tree (council or heritage officers)

any other person that the applicant has reason to believe will be affected by the order (this may include a person other than the tree owner who might be liable to be ordered to pay compensation or undertake remedial work).375

5.242 The NSWLEC may waive the notice requirements if it thinks it appropriate to do so.376 This has occurred in a number of cases because of the risk of injury if a tree were to fall.377

5.243 Queensland mirrors the approach taken in New South Wales by requiring the applicant to give copies of the application to the tree-keeper, the relevant government authority and any other person.378 This requirement may be waived or varied if QCAT considers it appropriate to do so, for example if the tree poses an imminent threat of serious injury to a person or of damage to the neighbour’s land or property.379

5.244 Similar notice provisions apply under the Tasmanian Act.380 The Practice Direction for applications under the Tasmanian Act states that RMPAT will ‘also advertise the existence of the application in the Public Notices section of the regional newspaper circulating in the area in question’.381 In this way, individuals are invited to make an application to join and attend the Preliminary Conference if they believe their interests may be affected by an order related to a plant.382

Community responses—who should be notified?

5.245 Pointon Partners commented that all persons affected by the application should be notified, including the local council.383 This would enable council to provide the decision-making body with any relevant information concerning the tree.

5.246 Baw Baw Shire Council explained that it ‘needed to be involved in decision-making where it currently plays a part’.384 Nillumbik Shire Council informed the Commission that it would be open to having some level of involvement during the hearing process.385

5.247 In contrast the City of Boroondara noted that ‘any requirement for Council to appear in a tree dispute matter may be problematic, particularly if it is perceived by community members that Council is “taking a side” where both parties are ratepayers’.386

The Commission’s conclusions—who should be notified?

5.248 An approach similar to the interstate schemes should be taken by requiring an applicant to provide notice of an application and of the remedies sought to people who may be affected by the tree dispute hearing. Notified parties could then decide on their level of involvement in the matter.

5.249 Councils may choose to participate in hearings in a limited way, for example in matters concerning significant trees protected under local laws, but not in hearings that concern other trees on private land within their municipality.

5.250 This requirement should be waived at the discretion of the decision-making body in cases where the tree poses an imminent risk of damage or harm.

5.251 Parties requiring notice would be:

the tree owner/s

the owner of the affected land if the action is commenced by an occupier of that land

any relevant authority who would otherwise be required to provide any authorisation in relation to the carrying out of works on the tree

any other person that the applicant thinks may be affected by the order, as occurs in the NSWLEC.

5.252 VCAT could also utilise its existing powers to direct that any other person be given notice of the hearing. 387

5.253 Applications under new laws should not be required to be publicly advertised as occurs in Tasmania. This requirement is unique to the Tasmanian scheme and could add unnecessary complexity to the new Act. Under Victorian planning legislation,388 public notification of permit applications is generally not required for proposed tree works such as pruning or tree removal of a single tree.389 The Commission considers that these are the types of order that are most likely to be made under a new Act.

Application requirements

5.254 The application form for tree disputes should elicit information from the parties that is targeted at narrowing the issues in dispute, helping VCAT to determine whether Alternative Dispute Resolution is appropriate and assisting it to resolve the dispute efficiently.

Other jurisdictions—application requirements

5.255 All of the dedicated interstate tree dispute Acts390 require applicants to provide very detailed information about their dispute in the application form, including:

the applicant’s name, address and contact details

information about the property on which the tree is located (including the relevant local council, the land use zone of the property, and the name of the property owner/s)

the orders (or remedies) sought by the applicant

whether the applicant has made any attempts to resolve the dispute with the respondent

whether any consent or authorisation from a government authority is required to carry out work on the tree.391

5.256 In addition, the NSW and Queensland Acts require applicants to describe:

whether anything other than the tree has contributed, or is contributing, to the injury or damage

whether the applicant has taken any steps to prevent or rectify any damage or injury

whether any trees on the applicant’s land may have contributed to the injury or damage.

5.257 Applicants are also asked to respond broadly to list of decision-making factors the decision maker will take into account before making an order.

New South Wales

5.258 The NSW Act is supported by extensive resources that help applicants to complete application forms and initiate proceedings in the NSWLEC. A step-by-step Plain English guide informs applicants of the requirements and what happens at each stage of the dispute process.392 See Chapter 12.

5.259 The Court has an eight-page application form393 that is supported by a 16-page Tree Dispute Claim Details Form.394 The latter requires the applicant to draw a diagram of their property and the adjoining property where the tree is located showing:

a) the location of the tree that is subject to the application

b) the location of the applicant’s dwelling and the location of each part of the dwelling that has been, is being or is likely to be damaged by a tree

c) the location of each place on the applicant’s property where the tree is likely to cause injury to a person

d the boundary between the applicant’s property and the property where the tree is located

e) the location of anything, other than the tree that is the subject of the application, that has caused, is causing or is likely to cause damage to the applicant’s dwelling

f) the location of anything, other than the tree that is the subject of the application, that has contributed, or is contributing, to the likelihood of injury.

5.260 The applicant is also required to provide the Court with additional information including:

the species of tree

a detailed description of the damage the applicant has claimed has occurred, is occurring or is likely or the injury that is likely

details of statements from other people, such as an arborist or engineer concerning the damage or likelihood of injury

the amount of compensation claimed for property damage and the basis for this amount

the basis for seeking an order for rectification works to the applicant’s property

whether the applicant is seeking any orders pursuant to the Dividing Fences Act 1991 (NSW) concerning any portion of the fence that has not been damaged by the tree.

5.261 The respondent to the application is required to file with the Court any statements, reports, photographs or other documents that the respondent plans to rely on at the hearing. This includes any orders proposed by the respondent as an alternative to or in addition to the orders sought by the applicant. If the respondent wishes to retain the tree, the NSWLEC requests that the reply to the proposed order include ‘any solution to prevent the tree causing damage to the applicant’s property, including any engineering or construction solution, which would enable the tree to be retained’.395

Queensland

5.262 In Queensland applicants are required to complete a checklist to assess whether their application falls within QCAT’s jurisdiction and to ensure the application has been completed and lodged correctly.396 The checklist asks whether the tree/s is located in a park owned by the local government or council or on a community reserve. If the answer is yes, the applicant is informed that the tree/s is not within QCAT’s jurisdiction and to contact the relevant local council.397

5.263 In addition, QCAT requires applicants to provide information about:

the applicant’s connection with the land that is affected by the tree (for example, whether the applicant is an owner or occupier of land)

if the applicant is an occupier, the details of the owner; whether the applicant has asked the owner to make an application about the tree; and whether the owner refused

whether the applicant has attempted to resolve the dispute

whether, if the dispute is about overhanging branches, the branches extend over the applicant’s property 50 metres or more from the common boundary and whether the branches are more than 2.5 metres above the ground.398

5.264 If the applicant is seeking an order that involves destroying the tree, the applicant is required to inform QCAT:

how long they have known about the injury or damage

whether the tree owner has taken any steps to prevent further injury or damage

whether the applicant has taken any steps to prevent further injury or damage.

5.265 Because the Queensland Act includes substantial, ongoing and unreasonable interference as a cause of action, the applicant is asked additional questions about this cause of action.

5.266 The applicant is also asked whether the tree forms part of the dividing fence between their land and the respondent’s land, and other questions relevant to fencing issues, such as whether the tree has damaged the dividing fence and whether the respondent has been given a notice to contribute for fencing work.

Tasmania

5.267 The application form to initiate proceedings in RMPAT is relatively straightforward and asks for similar information to the NSWLEC and QCAT application forms.399 The form contains a helpful checklist for applicants to ‘tick off’ as they complete each step of the application process.400

5.268 The applicant is required to provide evidence of attempts made to resolve the dispute before lodging an application, such as correspondence between the parties or a statutory declaration or affidavit.401

5.269 The applicant also needs to notify RMPAT if they are aware of any other person whose interests may be affected by the application.402 The Tribunal asks applicants to outline any interim order sought, and to provide evidence that is the basis of the request, such as evidence of an imminent threat or injury to person or property.

5.270 Once an application is filed, RMPAT will review the application and determine whether it requires the parties to provide any additional information.403

The Commission’s conclusions—application requirements

5.271 Application forms for a range of different civil and administrative cases are currently available on VCAT’s website.404 VCAT should consider developing a detailed application form that is modelled on the application forms for initiating tree disputes in the NSWLEC and QCAT.

5.272 There should be a single application form to simplify and streamline the application process. Applicants should supported with explanatory material. See Chapter 12.

5.273 The Commission was informed that the detailed application form in New South Wales can assist the Court by requiring an applicant to ‘respond to all jurisdictional and discretionary issues upfront’.405 The Court noted that although some applicants may not provide complete information, others pay a lot of attention to the form and complete it with detailed responses.406

5.274 The Commission supports the approach taken in application forms interstate. Key information sought from the applicant should include:

a detailed description of the damage the applicant claims has occurred, is occurring or is likely to occur

a detailed description of the harm the applicant claims is occurring or is likely to occur

the location of the properties involved in the dispute

any attempt the applicant has made to resolve the dispute informally

the species of tree and whether it is a recognised weed

any planning scheme requirements or requirements under other laws that apply to the tree

whether the remedies sought would require the consent or authorisation of another government body (for example, whether a permit would normally be required to interfere with the tree)

whether the matter relates to a fence

details of statements from experts concerning the damage or likelihood of harm, such as an arborist’s report or structural engineering advice

the amount of compensation claimed for property damage and the basis for this amount

whether the applicant is an owner or occupier of the land affected by the tree. If the applicant is an occupier of the land, they will need to satisfy the decision maker that they have asked the owner of the land to make an application about the tree and the owner has refused.

a detailed diagram and/or photographic evidence clearly showing the location of the tree. This should identify the common boundary between the neighbours’ properties, where the dwellings are located and any part of the dwelling that has been, is being, or is likely to be damaged by the tree. If relief for future harm is claimed, the applicant should point out each place on their property where the tree is likely to cause harm to a person.

 • whether any party has entered into a contract for the sale of land, to ensure that VCAT is aware of all relevant parties to the dispute (Chapter 11).

where a tree straddles the boundary of more than two properties, the names of all owners and information about proportional ownership by reference to the tree trunk.

The Victorian context

5.275 Some information sought in the application form will be particular to the Victorian context and the recommendations made in this report, and is specifically identified in the recommendation below. For example, specific information should be sought about whether there are other relevant laws which would help VCAT identify broader principles that may need to be considered in decision making; and about who may need to be invited to participate in a hearing. The zoning of the land should be identified. In Chapter 10 it is recommended that the new Act provide VCAT with the power to make orders under the Fences Act 1968 (Vic). Information should be sought for these types of claims at the start of the VCAT process.

5.276 The application form should require the applicant to provide information about any actions they or the tree owner have taken, or not taken, to prevent harm or damage or the likelihood of it. This is required in application forms prescribed under the New South Wales and Queensland schemes.

5.277 The application form should require applicants to turn their mind to the decision-making factors recommended in Chapter 8. This requirement will help the parties to better understand the decision-making process and may make resolution through an alternative dispute resolution process more likely if VCAT decides it should direct the parties to participate in ADR. Asking the parties to address decision-making principles early will also help VCAT to resolve the matter efficiently.

5.278 A checklist should accompany the application form to ensure that the tree dispute meets the jurisdictional requirements under the new Act and can be heard in VCAT. This will help to remove vexatious applications or applications that may be better suited to litigation through the court process such as personal injury compensation claims, trespass or criminal damage claims.


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