1. Introduction to neighbourhood tree disputes
1.1 This report arises from the Victorian Law Reform Commission’s community law reform project on neighbourhood tree disputes. It follows public consultation on the issues and a consultation paper published in December 2017.
1.2 Section 5(1)(b) of the Victorian Law Reform Commission Act 2000 (Vic) states that one of the Commission’s functions is to examine and make recommendations to the Attorney-General on issues that are of general community concern but are relatively minor. The term ‘relatively minor’ means limited in size and scope and not requiring the significant deployment of Commission resources.
1.3 The impetus for this work often comes from community suggestions about how to improve Victorian law. In undertaking community law reform projects, the Commission aims to provide workable solutions to gaps or inadequacies in the law so that reform delivers real benefits to the community.
1.4 The Commission’s priority for this review has been the effective and efficient resolution of disputes between neighbours about trees on private land (‘tree disputes’).
1.5 The Commission recommends the introduction of a dedicated Act to govern the resolution of neighbourhood tree disputes in Victoria. The Commission recommends that the new Act be administered by the Victorian Civil and Administrative Tribunal (VCAT).
Origins of the project
1.6 This project responds to enquiries and suggestions from the community. The Commission was told that it is common for tree disputes to arise about encroaching roots, overhanging branches, leaf litter and concerns about trees causing damage to property or harm to people. Neighbourhood tree disputes can create significant disharmony between neighbours and can be difficult to resolve. Recouping costs associated with tree works was also raised as a difficult issue.
1.7 The Dispute Settlement Centre of Victoria (DSCV) offers a free statewide dispute resolution service for neighbourhood disputes in Victoria that includes mediation. Concerns about neighbourhood trees were the third most common enquiry to DSCV from December 2011 to May 2017. DSCV suggested that the community found the existing common law remedies hard to access and confusing.
1.8 Given the volume and frequency of neighbourhood tree disputes, the Commission determined that a review of the current law governing the resolution of these disputes was timely.
1.9 In June 2017 the Commission initiated the Neighbourhood Tree Disputes inquiry. To confine the project within the parameters of a community law reform project, the terms of reference exclude consideration of disputes about trees on public land or disputes about trees that block sunlight and views.
1.10 This inquiry remains larger in scope than most community law reform projects. This is because even a small neighbourhood tree dispute can present a range of complex and multifaceted law reform issues.
1.11 The terms of reference for the inquiry are on page xii.
The Commission’s process
1.12 The Commission Chair, the Hon. Philip Cummins AM established a Division which he chaired. The Division members were Liana Buchanan, Dr Ian Hardingham QC, Professor Bernadette McSherry, Alison O’Brien PSM, and Gemma Varley PSM.
1.13 The Chair died in February 2019. Bruce Gardner PSM has chaired the final stages of this inquiry.
1.14 The Commission has been greatly assisted by community contributions in consultations and in submissions.
1.15 In December 2017 a consultation paper was published identifying the current law and outlining common types of tree disputes. It put forward a range of options for reform. The consultation paper invited members of the community who had been affected by the law or had a view about what the law should be to make a submission.
1.16 Thirty-eight submissions were received, the majority of which are available on the Commission’s website. A list of all stakeholders who made submissions is at Appendix A. Submissions were received from a broad cross-section of interested parties including arborists, academics, legal practitioners, private home owners, local councils, industry bodies and associations, and the Magistrates’ Court of Victoria.
1.17 Confidential submissions have not been published on the Commission’s website. These confidential submissions have informed the Commission’s thinking. However, in accordance with the Commission’s submission policy, they have not been referred to in this report unless permission has been sought from the author. Where this has occurred, no identifying information has been provided in citations.
1.18 In the course of this inquiry, the Commission undertook 16 formal consultations with individuals and groups who have particular experience or knowledge of tree disputes.
1.19 Consultations were undertaken in inner metropolitan and outer Melbourne. Responses were also received from regional Victoria. Commission staff spoke with members of the public, arborists, four local councils, an academic, and representatives from government agencies and departments. Consultation meetings were also held with VCAT, the Land and Environment Court of New South Wales (NSWLEC) and the Queensland Civil and Administrative Tribunal (QCAT).
1.20 A list of individuals and organisations the Commission consulted with is at Appendix B.
1.21 An online survey was conducted with members of the community, particularly those who might not have had the time to make a formal submission. The survey contained 15 questions about people’s experiences of trying to resolve tree disputes with their neighbours and how to improve the law to help them to do this better. The survey received 124 responses. The Commission has treated those submissions anonymously for the purposes of this report. See Appendix C for the survey.
Interstate reviews and tree dispute Acts
1.22 Reviews by other law reform bodies and interstate government agencies were of great assistance to the Commission. Following these reviews, New South Wales, Queensland and Tasmania introduced legislation to govern the resolution of tree disputes:
• the Trees (Disputes Between Neighbours) Act 2006 (NSW)
• the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld)
• the Neighbourhood Disputes About Plants Act 2017 (Tas).
1.23 The Acts have modernised and simplified the law to better assist the community in these states. Subsequent statutory reviews on the effectiveness of the new Acts in New South Wales and Queensland have also been of assistance. These reviews and reforms are discussed in more detail in Chapter 3.
1.24 While it is helpful and appropriate to review and consider approaches to tree disputes in other jurisdictions, these reforms must be considered in their legislative, financial and social contexts. They have been a helpful guide for the Commission where suited to local Victorian circumstances.
Structure of the report
1.25 This report is divided into 13 chapters.
1.26 Chapter 2 considers the prevalence of neighbourhood tree disputes in Victoria. It examines the common features of neighbourhood tree disputes as well as the impact they have on neighbours. It concludes by exploring some of the factors that contribute to these disputes.
1.27 Chapter 3 describes the current law that applies to the resolution of these disputes and identifies some of its limitations.
1.28 Chapter 4 considers the need for change in more detail. It briefly examines dispute resolution pathways that have been introduced in other jurisdictions. Community responses to the preliminary reform ideas presented in the consultation paper are also examined. It concludes by recommending the introduction of a new Act in Victoria to regulate neighbourhood tree disputes and identifying the public policy principles that should underpin it.
1.29 Chapter 5 considers the scope of the new Act. It explores what types of vegetation and land should come within its scope. It also considers the types of conduct that will be actionable, who can bring an application and who should be notified of an application that is made.
1.30 Chapter 6 examines the importance of informal resolution of tree disputes and how to improve and facilitate this.
1.31 Chapter 7 explores the recommendation that VCAT should adjudicate disputes under the new Act. It examines the way dedicated tree dispute Acts operate interstate and identifies the type of jurisdiction that should be granted to VCAT. It also considers VCAT’s processes for managing those disputes.
1.32 Chapter 8 considers the decision-making principles to be included in the new Act to guide VCAT decision makers and the community about the application of the law. It also examines the role of experts in the decision-making process.
1.33 Chapter 9 explores the types of orders that should be available under the new Act and how orders should be enforced and appealed.
1.34 Chapter 10 looks at the complex issue of how a new Act should interact with existing laws and regulations that already protect trees or limit action in relation to trees on private land in Victoria.
1.35 Chapter 11 recommends steps to better notify purchasers of land and new owners about the existence of VCAT applications or orders made under the new Act.
1.36 Chapter 12 contains recommendations for providing the community with clear and helpful information about how to resolve tree disputes. It also explores possible ways to prevent these disputes from arising.
1.37 Chapter 13 concludes this report and suggests other issues that should be considered by the Victorian Government in designing a new Act, for example the suitability of online dispute resolution for tree disputes. Preliminary views on some matters beyond the scope of the inquiry are also provided. The report concludes with the recommendation that the operation of the new Act should be reviewed after five years to determine whether the Act is achieving its objectives. The Commission identifies some matters for Government consideration when the Act is reviewed.
The Commission received five enquiries on this issue from 2010–2016.
Information provided by the Dispute Settlement Centre of Victoria (DSCV) as part of a data request from the Commission, August 2017 and clarification of data provided in May 2019. This is discussed in Ch 2.
Information provided by DSCV as part of a data request from the Commission, August 2017.
The views expressed in the submissions are those of the individuals or organisations who submit them and their publication does not imply any acceptance of, or agreement with, these views by the Commission. The Commission’s Submissions’ Policy is available on its website: Victorian Law Reform Commission, Submissions Policy (Web Page, 5 March 2019) <https://www.lawreform.vic.gov.au/about-us/policies/submissions-policy>.
New South Wales Law Reform Commission, Neighbour and Neighbour Relations (Report No 88, 1998); Department of Justice and Attorney-General (Qld), Review of Neighbourly Relations: Trees (Discussion Paper, July 2008); Tasmania Law Reform Institute, Problem Trees and Hedges: Access to Sunlight and Views (Report No 21, January 2016).
Department of Justice and Attorney-General (NSW), Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (Report, 2009); Queensland Law Reform Commission, Review of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Report No 72, December 2015).