5. Approaches to tree disputes in other jurisdictions

 

Introduction

  1. 5.1 Although the nature of tree disputes is largely similar across Australia, there is a range of approaches to their resolution.
  2. 5.2 Australian jurisdictions can be divided into those which have enacted legislative regimes to govern the resolution of tree disputes, and those which have retained the common law.
  3. 5.3 As outlined in Chapter 1, reviews in New South Wales, Queensland and Tasmania have been the basis for significant change. In these jurisdictions, there are now statutory schemes that set out the rights and responsibilities of neighbours involved in a tree dispute, as well as the specific causes of action parties can rely on if they bring legal action. These schemes are analysed in more detail, and in the context of a possible Victorian scheme, in Chapter 6.
  4. 5.4 International jurisdictions can also largely be separated into those that retain the common law, and those that have enacted specialist legislation in this area.
  5. 5.5 In researching international models, the Commission has looked primarily at those countries and sub-national entities that have a similar political and cultural context to Australia.
  6. 5.6 Those jurisdictions with important similarities or relevant differences are discussed below.1

Australian jurisdictions

Jurisdictions governed by the common law

  1. 5.7 In the Australian Capital Territory, the Northern Territory, South Australia and Western Australia, tree disputes are governed by common law, as is the case in Victoria. The overall process in each of these states and territories is similar to the Victorian process, in relation to disputes between individuals.2
  2. 5.8 When local councils are involved (for example, where a tree on private land causes nuisance or poses a risk of injury to people using adjacent public land, such as footpaths or roads) they may be able to order the tree owner to remove the tree or maintain it a certain way.3
  3. 5.9 Some councils may also have power to order a tree owner to remove or maintain a tree if it affects a neighbour on private land. For example, in the Shire of Mundaring in Western Australia, if a tree is deemed to be ‘potentially dangerous to life or limb, or a property on adjoining land’ the Shire will contact the tree owner and ask that ‘they either make the tree safe or prove it is not dangerous (via a report from a qualified and experienced arboricultural consultant)’.4 If this is not done, the Shire may start a formal process to compel the tree owner ‘to make safe any potential danger caused by a tree or any part of the tree’.5
  4. 5.10 Similarly, in South Australia, local councils have power to order tree owners to remove or perform certain works on a tree where it is ‘likely to create danger or difficulty to persons using a public place or is unsightly and detracts from the amenity of the local area’. According to the Legal Services Commission of South Australia, an affected neighbour may also contact their local council to ask that such action be taken against a tree owner if it affects their land. However, some of these requests are unlikely to be progressed because some councils in South Australia have indicated that they will avoid involvement in neighbour disputes where possible.6
  5. 5.11 As is the case in Victoria, each of the states and territories has its own provider of free mediation services.7
  6. 5.12 Where a party brings legal action in these jurisdictions, smaller claims are heard in the Local Court in the Northern Territory and the Magistrates’ Courts in South Australia and Western Australia.8
  7. 5.13 In the Australian Capital Territory, an affected neighbour can bring legal action for nuisance in the ACT Civil and Administrative Tribunal instead of going to court, if their claim is under $25,000.9 Claims exceeding this amount must be brought in the ACT Magistrates Court.10

Jurisdictions governed by legislation

New South Wales

  1. 5.14 In New South Wales, tree disputes can be heard in the New South Wales Land and Environment Court (NSWLEC) under the Trees (Disputes Between Neighbours) Act 2006 (NSW) (the NSW Act). Key features of the statutory scheme in New South Wales are discussed in more detail below, and under Option 2 in Chapter 6.
  2. 5.15 Before taking legal action, neighbours can try to resolve their dispute through free mediation provided by community justice centres.11
  3. 5.16 While common law nuisance is no longer available as a cause of action for tree disputes in New South Wales,12 an affected neighbour can still employ the common law self-help remedy of abatement and cut away encroaching parts of a tree from their land up to the boundary line. This may be limited in some cases by the relative prevalence in NSW of council-based tree protection orders, which require council approval for the cutting back of encroaching branches or roots.13
Trees (Disputes Between Neighbours) Act 2006 (NSW)
  1. 5.17 The NSW Act governs the resolution of tree disputes in New South Wales and gives jurisdiction to the NSWLEC to hear these disputes.
  2. 5.18 The NSW Act was enacted following the recommendations made by the New South Wales Law Reform Commission in its 1998 report, Neighbour and Neighbour Relations.14
  3. 5.19 The NSW Act aims to simplify the resolution of tree disputes with a framework that is more efficient and less costly than commencing actions in tort.15 The majority (58 per cent) of neighbours who seek resolution through the NSWLEC are self-represented.16
  4. 5.20 The NSW Act applies only to disputes over trees on adjoining private land that have caused damage, or are likely to cause damage or injury in the future.17 It allows an affected neighbour to bring an application seeking court orders ‘to remedy, restrain or prevent’ damage or injury.18 The NSW Act also allows an affected neighbour to bring legal action in relation to vegetation that severely obstructs sunlight or views.19
New South Wales Land and Environment Court process
  1. 5.21 The NSWLEC is a superior court with specialist jurisdiction. Its decision makers are judges and commissioners, led by a Chief Judge. Tree disputes are usually heard by commissioners, at least some of whom will have specialist knowledge in arboriculture.20
  2. 5.22 Before lodging an application with the NSWLEC, the affected neighbour must first give the opposing party at least 21 days’ notice of their intention to start legal action along with details about the specific orders they seek from the Court.21 The affected neighbour must also notify any other interested parties, such as the local council.22
  3. 5.23 The Court encourages the use of Alternative Dispute Resolution (ADR) such as mediation, conciliation or neutral evaluation to resolve disputes.23 The Court reports that ‘in 2011, 59 per cent of matters were resolved by ADR processes and negotiated settlement, without the need for a court hearing’.24 If ADR is unsuccessful or inappropriate, then the matter will proceed to a hearing.
  4. 5.24 Hearings comprise a preliminary hearing and a final hearing, the latter usually conducted on site.25 Further hearings may be arranged as needed.26 Decisions are handed down


    within three months of filing the application but urgent matters can be heard and determined within a shorter timeframe.27
  5. 5.25 The form that applicants must complete when commencing an action is relatively clear and straightforward, in recognition of the fact that most applicants appear in the Court without legal assistance. The applicant provides information about the nature and circumstances of the dispute, and whether they have made efforts to resolve it. The applicant also responds to matters the NSWLEC must take into consideration, such as the tree’s contribution to the local ecosystem; its historical, cultural and scientific significance; and its heritage value.28
  6. 5.26 Parties may engage their own experts to provide expert evidence. Experts owe a general duty to the Court and must agree to be bound by the code of conduct.29 The Court may direct experts to engage in joint conferencing and to produce a joint report.30
  7. 5.27 Before making any orders, the NSWLEC must be satisfied that the applicant has made a reasonable effort to reach an agreement with the tree owner and that the applicant has complied with the notice requirements.31
  8. 5.28 The Court may make orders to:
  • ‘remedy, restrain or prevent’ damage to property
  • prevent injury to any person, including removal or replacement of the tree
  • mandate payment for works or compensation.32
  1. 5.29 Parties can appeal decisions made by a commissioner on a question of law to a judge of the NSWLEC.33
  2. 5.30 If an order is not complied with, a person may face a maximum penalty of 1000 penalty units.34
Further resources for community members
  1. 5.31 The NSW Act is supported by various policy documents, as well as Regulations35 and an Annotated Act containing explanatory case law and examples.36 The NSWLEC publishes tree dispute principles from time to time to promote consistent decision making. These principles can be statements about a probable outcome, a chain of reasoning, or a list of appropriate matters to be considered.37 Tree dispute principles apply only to tree disputes concerning damage or harm (as opposed to those concerning obstructions to sunlight and views, which are also heard in the NSWLEC).38

 

Queensland

  1. 5.32 In Queensland, tree disputes are heard in the Queensland Civil and Administrative Tribunal (QCAT) under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (the Queensland Act). Key features of the statutory scheme in Queensland are discussed in more detail below, and under Option 2 in Chapter 6.
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld)
  1. 5.33 The Queensland Act governs the resolution of tree disputes, and sets out the rights and responsibilities of tree owners.39 It gives jurisdiction to QCAT to hear these disputes.
  2. 5.34 The genesis of the Queensland Act was a review conducted by the Queensland Department of Justice and Attorney-General between 2007 and 2010.40 The Department’s review centred on ‘finding more efficient ways of assisting neighbours to resolve disputes about … nuisance caused by trees on neighbouring properties’.41 The Queensland Law Reform Commission conducted a statutory review of the new Queensland Act in 2014.42
  3. 5.35 The Queensland Act only applies to trees on private adjoining land that:
  • cause serious damage or injury, or are likely to do so within 12 months
  • produce overhanging branches that are at least 50 centimetres long and a maximum of 2.5 metres above the ground
  • cause substantial, ongoing and unreasonable interference with a person’s use and enjoyment of their land.43
  1. 5.36 The Queensland Act sets out a three-stage process for resolving tree disputes:
  • informal resolution
  • abatement
  • formal resolution through QCAT.
  1. 5.37 At the first stage, neighbours are encouraged to resolve disputes informally.44 To assist with this and for clarity, the Queensland Act sets out the responsibilities of tree owners. They include ensuring that the tree does not cause serious injury to a person, serious damage to land or any property, or substantial, ongoing and unreasonable interference with a person’s use and enjoyment of their land.45 Neighbours can also seek free mediation services through a Dispute Resolution Centre.46
  2. 5.38 If neighbours cannot resolve disputes between themselves, then an affected neighbour may exercise their common law right of abatement where it would be effective, and where branches encroach to a specified extent.47 However, the Queensland Act has modified the common law right in the following ways:
  • The abatement scheme set out in the Act is only applicable to overhanging branches that are at least 50 centimetres long and a maximum of 2.5 metres above the ground.
  • An affected neighbour must give the tree owner notice of their intention to abate.
  • The cost of tree works is covered by the tree owner, or the affected neighbour can recoup the costs from the tree owner.
  • An affected neighbour exercising this right is no longer required to return the removed parts to the tree owner (but may choose to).48
  1. 5.39 If parties cannot resolve the tree dispute between themselves and abatement cannot be exercised or is ineffective, an affected neighbour can lodge an application with QCAT to bring legal action.49
Queensland Civil and Administrative Tribunal process
  1. 5.40 QCAT is a tribunal set up under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) that deals with minor civil disputes.50 It is led by the President, who is a judicial officer. Tribunal members who determine matters are legal experts or other specialists with knowledge relevant to the matter being heard.51 
  2. 5.41 At least 21 days before the date the application is to be heard, the affected neighbour must provide the tree owner with a copy of the application.52 The affected neighbour must also provide any other interested parties who may be affected by an order with a copy of the application.53
  3. 5.42 Where the dispute is over a minor issue, such as leaf litter or overhanging branches, QCAT may order parties to participate in mediation or compulsory conferencing, which provide an opportunity to resolve the matter without a QCAT determination.54
  4. 5.43 QCAT may also arrange a directions hearing at an early stage in certain situations before a hearing.55 Tree disputes usually take some weeks to finalise from the date the application is lodged but urgent matters can be heard more quickly. QCAT can also make interim orders and grant a stay of a decision.56
  5. 5.44 The Queensland application form is easy to navigate and complete without legal assistance. It asks the applicant to provide information about the dispute, and the type of orders they seek from QCAT.57 It also requires the applicant to respond to matters QCAT must take into consideration, such as whether the tree forms part of a dividing fence, any permission required from local authorities to carry out works, the tree’s ecological contribution, and its historical, cultural and scientific significance. A similarly detailed response form exists for the other party to complete. It requires them to explain what they agree or disagree with, their reasons for disagreement, and what orders they seek from the tribunal and why.58
  6. 5.45 Parties are able to engage their own experts to provide expert evidence. Alternatively, QCAT will appoint a qualified arborist to provide expert evidence.59
  7. 5.46 Experts engaged by parties owe a duty to assist QCAT, which overrides any obligation to the party that engages them. Experts from both parties must produce a joint report detailing matters in agreement and matters in contention following an ‘experts’ conclave’ convened by QCAT.
  8. 5.47 Before making any orders, QCAT must be satisfied that the affected neighbour has made a reasonable effort to reach an agreement with the tree owner and that they have taken all reasonable steps to resolve the issue under any other applicable law.60
  9. 5.48 QCAT can make orders depending on the circumstances of the dispute, including orders for:
  • the removal of a tree
  • annual maintenance work
  • a survey to be undertaken to clarify who owns the tree
  • authorisation of a person to enter the tree owner’s land to obtain a quote or to carry out work
  • compensation or repair costs relating to damage.61
  1. 5.49 QCAT can also make orders relating to the recovery of a minor debt where a party does not pay an amount previously agreed for carrying out work on a tree.62
  2. 5.50 An order made by QCAT for certain works to be carried out overrides any local laws to the contrary, such as, the need for consent of the local council or tree owner where the tree is under a vegetation protection order.63 However, QCAT cannot make an order for work on a tree that is prohibited by or contrary to other legislation.64
  3. 5.51 Parties can appeal decisions made by members on a question of law, a question of fact, or both to the Queensland Civil and Administrative Appeals Tribunal.65
  4. 5.52 If the tree owner fails to follow an order without reasonable excuse, they can be held liable for an offence with a maximum of 1000 penalty units.66 The Act also provides a ‘last resort’ enforcement mechanism that allows the local council to carry out QCAT orders where the tree owner fails to do so. However, this provision is not frequently used.67
Further resources for community members
  1. 5.53 The Queensland Act is supported by various policy documents and a searchable tree orders register made available online by the Queensland Government and QCAT to help parties resolve disputes.68

 

Tasmania

  1. 5.54 In Tasmania, tree disputes are heard in the Resource Management and Planning Appeal Tribunal (RMPAT) under the Neighbourhood Disputes About Plants Act 2017 (Tas) (the Tasmanian Act).
  2. 5.55 At the time of writing, the Tasmanian Act had only recently been enacted and no tree dispute had yet been brought before RMPAT.69 As a result, most of the information detailed below reflects RMPAT’s general practices and procedures. As tree disputes begin to be brought before RMPAT, it is probable that this category of dispute will attract its own unique practices and procedures as it has in NSWLEC and QCAT. Key features of the statutory scheme in Tasmania are discussed in more detail below.
Neighbourhood Disputes About Plants Act 2017 (Tas)
  1. 5.56 The Tasmanian Act governs the resolution of tree disputes and sets out the rights and responsibilities of landowners in respect to trees. Before the enactment of the Tasmanian Act, neighbours seeking legal relief for their tree dispute would have had to bring legal action in the Supreme Court of Tasmania. Now the Tasmanian Act allows people to take legal action in RMPAT.
  2. 5.57 The Tasmanian Act implements most of the recommendations resulting from the Tasmanian Law Reform Institute’s inquiry into Problem Trees and Hedges and is largely modelled on the Queensland Act.70
  3. 5.58 Like the Queensland Act, the Tasmanian Act also sets out three ways to resolve a tree dispute: informal resolution, abatement, and legal action in RMPAT.71
  4. 5.59 The rights and responsibilities set out in Part 2 of the Act ‘provide a clear set of rules … to help landowners and affected neighbours resolve any issues about a tree’72 without having to take legal action.
  5. 5.60 The Act also allows an affected neighbour to give the tree owner a written ‘notice about the land affected by the plant’ containing details about how their land is affected, how the problem can be resolved, and requesting a written response from the owner within the period specified in the notice. This period is to be not less than 14 days.73
  6. 5.61 The common law right to abate is preserved but there is no longer any need to return severed parts of the tree to the tree owner. There are further notice requirements for branches that are at least 50 centimetres long and 2.5 metres above the ground.74
  7. 5.62 If informal resolution and abatement do not assist in resolving the matter, an affected neighbour can bring legal action in the RMPAT where the tree has ‘caused, is causing, or is likely within the next 12 months to cause’:
  • serious injury to a person on the affected land
  • serious damage to land or property, or
  • substantial, ongoing and unreasonable interference with the use and enjoyment of the land.75
 
Resource Management and Planning Appeal Tribunal process
  1. 5.63 RMPAT is an independent tribunal that hears appeals relating to the management of natural and physical resources and planning.76 It is led by a chairperson required to be an Australian legal practitioner of not less than five years standing.77 Tribunal members who determine matters are appointed for their specialist knowledge in ‘planning, engineering, architecture, science, and environmental management’.78 The Tribunal is ordinarily constituted by three members but this number can be increased or reduced. Matters are
    usually heard by the chairperson or a member appointed for their legal knowledge and expertise.79
  2. 5.64 The affected neighbour must give the tree owner or any other interested party notice of the application, the grounds for their claim and the relief sought. RMPAT itself may also give such notice to anyone else it thinks will be affected by the requested relief.80
  3. 5.65 Under the Tasmanian Act RMPAT must consider whether the parties have attempted to resolve the matter themselves before a hearing begins.81 RMPAT’s own practice direction on ADR also requires RMPAT to consider whether the matter could be ‘settled expeditiously’ through ADR such as mediation, conciliation or early neutral evaluation.82
  4. 5.66 Mediation is the most common form of ADR used by RMPAT. Virtually all matters will be assessed for their suitability for mediation and only exceptional circumstances will justify no mediation.83 Mediation can occur before a hearing or during a hearing following an order to stay proceedings. Matters discussed in mediation remain confidential.84
  5. 5.67 Hearings are held in RMPAT’s main location in Hobart.85 Site inspections are conducted as part of the hearing process and this is ordinarily done without parties or their representatives present. However, ‘if the parties wish to specifically ensure that the Tribunal members have regard to certain matters on the subject site’ then they may arrange such a site inspection and notify RMPAT about it at least seven days before the hearing.86
  6. 5.68 RMPAT must deliver its decision in writing, which is usually done in ‘14 to 21 days from the conclusion of the hearing’.87
  7. 5.69 RMPAT has separate application forms for each type of matter it has jurisdiction to hear. An application form for tree disputes under the Tasmanian Act has not yet been published. However, the Tasmanian Act stipulates that the following details must be provided by the affected neighbour in their application:
  • information or evidence (which may be photographic) that is sufficient to identify the land affected by the tree; the type, scale and height of the tree; the tree’s location, and a copy of a certificate of title
  • detailed grounds on which the application is made
  • the general nature of the relief that is being sought and, if the relief requires the approval of a government body, then details about the type of approval required
  • details of the persons or bodies whom the affected neighbour intends to notify.88
  1. 5.70 RMPAT’s general practice direction on expert evidence states that expert witnesses owe a general duty to RMPAT and must follow an Expert Witness Code of Conduct (the Code of Conduct).89
  2. 5.71 Once engaged by a party, an expert witness must be given a copy of the Code of Conduct, and in their expert evidence must acknowledge and agree to be bound by it.90
  3. 5.72 RMPAT can make orders to reduce or prevent:
  • overhanging of branches
  • serious injury or damage
  • substantial, ongoing and unreasonable interference.
  1. 5.73 It can also make orders to remedy damage already caused.91
  2. 5.74 If an order is not complied with, then parties can bring proceedings in the Civil Division of the Magistrates’ Court.92
  3. 5.75 A party may appeal a decision of RMPAT on a question of law to the Supreme Court of Tasmania.93
Further resources for community members
  1. 5.76 It is intended that the scheme set out in the Tasmanian Act will be supported by various resources, such as guides and practice directions, and a database of orders that can be searched for a fee.94

International jurisdictions

  1. 5.77 Key features of the relevant law and practice in New Zealand, Singapore, Canada and the United States (US) governing tree disputes are discussed below. The approaches in each of these jurisdictions derived originally from the English common law but have, in modern times, developed independently of it. The law in Singapore largely mirrors the law in Victoria. New Zealand, some provinces of Canada and some states of the United States, however, have different approaches.

New Zealand

  1. 5.78 In New Zealand, neighbours may exercise their right to abate or take legal action under the Property Law Act 2007 (NZ).
  2. 5.79 The law underpinning the right to abate derives largely from English common law and is similar to the law in Victoria. An affected neighbour may abate by cutting back overhanging branches or encroaching roots up to the boundary line.95 A neighbour who abates is not entitled to recover costs from the tree owner.96 The option to abate may also be affected if the tree is protected by the Resource Management Act 1991.97
  3. 5.80 Where abatement is unavailable or is ineffective, neighbours are encouraged to communicate with each other and come to a resolution. If needed, neighbours can also engage mediators and arbitrators to resolve disputes.98
  4. 5.81 The New Zealand scheme differs from Victoria in that an affected neighbour can rely on the Property Law Act 2007 (NZ) instead of an action in tort.This Act allows an affected neighbour to seek orders in the District Court for the trimming or removal of a tree on the basis that it:
  • causes actual or potential risk to their life, health or property
  • unduly obstructs a view
  • causes undue interference with the use and enjoyment of the applicant’s land due to leaf litter, overhanging branches or by blocking sunlight.99
  1. 5.82 An affected neighbour can also seek an order for any costs they have incurred as a result of abating.
  2. 5.83 In making an order, the hardship that would be caused to the affected neighbour if the tree remains is balanced against the hardship that will be caused to the tree owner in complying with any orders made. The court will also consider factors such as ‘the public interest in maintaining an aesthetically pleasing environment; the importance of protecting public reserves containing trees; any historical, cultural or scientific significance that the tree has, and any likely effect that removing or trimming the tree would have on ground stability, the water table, or run-off’.100
  3. 5.84 If an order is not complied with, the affected neighbour can, with the tree owner or court’s permission, enter the tree owner’s land to carry out the works stipulated in the order themselves. They can also recover from the tree owner any expenses they incur.101

Singapore

  1. 5.85 In Singapore, neighbours may exercise their right to abate or take legal action against their neighbour in tort. The law underpinning the right to abate and tort law derives largely from English common law and is similar to the law in Victoria.102
  2. 5.86 An affected neighbour may cut back branches that protrude over their land by exercising their right to abate. However, the branches, including any fruit they bear, cannot be kept by the affected neighbour.
  3. 5.87 The affected neighbour’s ability to abate may be limited, however, by the Parks and Trees Act which seeks to preserve certain trees that fall within a ‘tree conservation area’.103
  4. 5.88 Where an affected neighbour cannot abate, then they may sue the tree owner for nuisance where the tree interferes with their use and enjoyment of the land, and where it causes damage.104 Claims are brought in the Magistrates’ Court.105
  5. 5.89 A distinctive feature of the Singaporean approach to neighbour disputes is the Community Disputes Resolution Act 2015, which allows neighbours to bring claims against each other in a Community Disputes Resolution Tribunal (CDRT). Disputes which can be brought to the tribunal include those based on unreasonable interference with the use and enjoyment of a neighbour’s place of residence.106
  6. 5.90 The Act was implemented to provide a ‘last resort for difficult disputes between neighbours’107 and aims to ‘facilitate the resolution of community disputes by providing for a statutory tort for community disputes and for the establishment of Community Disputes Resolution Tribunals to deal with such disputes’.108 Mediation is encouraged before parties seek legal recourse in the CDRT.109
  7. 5.91 The framework set out in the Community Disputes Resolution Act 2015 is an example of how Singapore has sought to streamline the resolution of neighbourly disputes. The Act sets out a list of actionable disputes such as those concerning excessive noise, littering, trespass, interference caused by animals, and interference with the neighbour’s moveable property.110 Although tree disputes are not explicitly mentioned in this list, the Act states that this list is not exhaustive.111

Canada

  1. 5.92 The law governing tree disputes in Canada also has its basis in English law.

Joint ownership

  1. 5.93 A distinctive feature of Canadian law is that legislation in some provinces allows trees to be jointly owned. For example, under the Forestry Act in the province of Ontario, a tree whose trunk grows between two separate parcels of land is called a ‘boundary tree’ and is jointly owned by the respective landowners as tenants in common irrespective of who planted the tree.112 Any action sought by one co-owner in respect of the tree, including its removal, must be consented to by the other co-owner.113 Any person who injures or destroys a boundary tree without the consent of the co-owners is guilty of an offence.114
  2. 5.94 A similar framework of joint ownership exists in Saskatchewan where these trees are called ‘straddle trees’.115 However, it differs from Ontario in that it places importance on how the straddle tree came to exist between properties.
  3. 5.95 A straddle tree planted with agreement between neighbours is ‘owned in common by them and each has a proprietary interest in the whole of the tree that may be protected by registration of a caveat’.116 However, ‘Where it is not determinable which [neighbour] planted the tree or permitted it to grow initially on [their] property, ownership in common will not be implied.’117 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.118

British Columbia Civil Resolution Tribunal

  1. 5.96 A distinctive approach to smaller-scale dispute resolution is found in the British Columbia Civil Resolution Tribunal (the CRT). The CRT uses online dispute resolution (ODR) to assist people in resolving small civil claims up to the value of $5000 Canadian.119
  2. 5.97 The CRT began operation in July 2016. All matters filed in the Provincial Court’s small claims jurisdiction after June 2017 are now dealt with in the CRT.
  3. 5.98 The CRT process can be divided into four main stages:
  4. 1) Solution Explorer: a self-driven tool providing information, problem diagnosis and self-help tools to help parties understand their rights and obligations, and to explore possible solutions before formal dispute resolution or hearings take place. This is free and available 24 hours a day.
  5. 2) Negotiations: the CRT provides tools and guidance for party-to-party negotiations, and will soon begin hosting an online platform, allowing parties to log in and negotiate by exchanging messages.
  6. 3) Case management: a CRT case manager can use a range of communication platforms and tools (phone, email, messaging) to facilitate negotiation between the parties. Agreements can then be referred to a Tribunal member to be converted into a binding order of the CRT.
  7. 4) Adjudication: if not yet resolved by the preceding steps, a matter can be transferred to hearing (usually on the papers) by a tribunal member with relevant specialist expertise. Decisions of the CRT are binding.120
  8. 5.99 Initially, the CRT dealt solely with strata disputes (between parties in an owners’ corporation), but it has expanded to provide information and dispute resolution tools in a range of dispute areas, including:
  • payment and quality of goods and services
  • personal property rights, including intellectual property and contracts
  • debts and payment plans
  • residential construction and renovations
  • some employment disputes
  • insurance disputes
  • personal injuries.
  1. 5.100 Although neighbourhood tree disputes are not currently heard by the CRT, this may be a suitable area for future expansion of the jurisdiction.

United States

  1. 5.101 The law in the United States concerning tree disputes also has its origins in English law but has now developed independently. An affected neighbour can use the remedy of self-help and trim overhanging branches or take legal action against a tree owner for nuisance or negligence. Tree disputes are determined by state courts, with each state developing its own common law and interpretation of statute.
  2. 5.102 In certain states, whether or not a tree owner is liable in nuisance or negligence depends on whether the tree grows naturally or artificially.121 On rural land, a tree owner is not liable for any damage or harm caused by a tree that grows naturally.122 The term ‘naturally’ refers to land that has ‘not been changed by any act of a human being’ and includes ‘the natural growth of trees, weeds, and other vegetation upon land not artificially made receptive to them’.123 On urban land, the distinction between naturally and artificially occurring trees is not regarded, and a tree owner may be liable ‘for harm caused to others outside of the land by a defect in the condition of a tree’.124
  3. 5.103 A distinctive feature of tree ownership in the United States is where a tree stands on the boundary line with its trunk on both properties. In this situation the neighbours own the tree as tenants in common if an ‘intention, acquiescence, or agreement’125 as to its joint ownership can be demonstrated.126
  4. 5.104 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 owners.127

Question

  1. 5 Are there any aspects of international jurisdictions’ approaches to resolving neighbourhood tree disputes that should be considered in Victoria?

 

Footnotes

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