Executive summary: neighbourhood tree disputes
1 On 8 June 2017 the Commission initiated an inquiry on ways to provide just, effective and timely methods for resolving neighbourhood tree disputes on private land in Victoria.
2 The Commission’s key recommendation is to introduce a Neighbourhood Tree Disputes Act. This recommendation responds to community calls for better guidance from the law about how to resolve these disputes.
The scope of the problem
3 In an increasingly urbanised environment, people’s decisions about their land and trees can have a significant effect on their neighbours’ homes and lives. The Commission has heard that these disputes are common. Concerns about neighbourhood trees were the third most common enquiry to the Dispute Settlement Centre of Victoria from December 2011 to May 2017.
4 Most disputes relate to overhanging branches, encroaching roots and the presence of large trees, but other issues also exist.
5 Although tree disputes are common, few of them go to court or are resolved with legal assistance because legal action is expensive and outcomes are uncertain. People often contact multiple agencies for assistance and are frustrated when they cannot obtain clear advice about what they can or cannot do to resolve their dispute. As a consequence, tree disputes may remain unresolved. This is problematic because quick resolution is desirable. Tree disputes give rise to impassioned responses because they can be seen to challenge a person’s ownership and enjoyment of their land. They can cause significant distress and lead to or amplify poor relations between neighbours. Sometimes they escalate to trespass, criminal damage or other criminal behaviour.
6 While these disputes may appear straightforward, they are often complex. They have an emotional dimension and a range of factors prevent them from being resolved, including:
• different expectations about living near trees
• the breakdown in communication between neighbours
• incorrect assumptions about the causes of problems
• difficulties obtaining timely arboricultural advice
• a lack of knowledge about how trees grow and interact with built structures.
7 Tree disputes may have a greater impact on people who face physical or financial difficulties carrying out tree works, maintaining vegetation or negotiating with a neighbour.
The law is complex
8 The current methods for resolving these disputes—from informal negotiation to litigation—are unclear and confusing. The law is not stated in a single document, so it is hard to know what can and cannot be done to resolve concerns, and hard to negotiate a resolution.
9 Information to help people resolve their disputes is hard to find. Community members must piece together information published by different government and community agencies to work out a possible resolution process.
10 The community does not have a good understanding of which experts can assist them. In particular, there is a lack of understanding about the role and qualifications of arborists.
The law provides limited remedies
11 Legal action in relation to tree disputes in Victoria is currently based on the common law torts of negligence, nuisance and trespass. These torts do not allow much scope to obtain a remedy that will prevent damage or harm from occurring. Affected neighbours may have to wait for the damage or harm to occur before they can take legal action. This is reactive and counter-productive.
12 An affected neighbour who exercises their common law right to abate by pruning to a boundary line cannot recoup any costs from the tree owner. They may be left significantly out of pocket or unable to arrange any tree works because of the costs involved. The legal requirement to return abated vegetation can itself create disputes or make existing problems worse, particularly when neighbours throw vegetation back over the fence.
13 These disputes can be characterised as a competition of rights: the tree owner’s right to use and enjoy the land in any lawful manner, and the affected neighbour’s right to enjoy their land without unreasonable interference. However, they have another dimension. The need to retain and protect vegetation is increasingly important to our community because it improves the liveability of our urban environments.
14 Some councils receive as many enquiries about the loss of vegetation from a neighbour’s property as they do about a neighbour’s tree causing damage or harm to the affected neighbour’s property. The main remedies are court orders for an injunction or damages. These remedies ‘aim to rectify specific personal losses, but do not address the interests of the public at large in the aesthetic, historical, cultural or environmental values associated with trees’.
A new Neighbourhood Tree Disputes Act
15 The Commission recommends the introduction of a Neighbourhood Tree Disputes Act in Victoria, managed by the Victorian Civil and Administrative Tribunal (VCAT).
16 New South Wales, Queensland and Tasmania have enacted legislation to govern the resolution of tree disputes. The legislative schemes in New South Wales and Queensland appear to have had positive outcomes. The Tasmanian scheme only commenced in December 2017. The number of applications handled by the Land and Environment Court of New South Wales (NSWLEC) and the Queensland Civil and Administrative Tribunal (QCAT) each year is relatively low, and the Commission has been advised that matters can be resolved quickly and affordably. These schemes provide a good guide for Victoria.
17 A new Act is the best way to ensure the fast, cheap and effective resolution of these disputes. Community responses overwhelmingly support this option.
18 The aims of the new Act are to:
• provide a clear dispute resolution pathway that encourages people to resolve disputes informally between themselves
• enable disputes to be resolved efficiently and inexpensively
• establish clear decision-making principles to guide the community about how the law applies, and help the community resolve their own disputes
• provide practical and effective remedies
• balance competing rights and interests fairly and transparently and use evidence-based decision making
• interact simply with other laws without disrupting established policy wherever possible.
19 Supporting material should be created to help the community understand:
• how the new Act works in practice
• how to progress a matter through VCAT
• what professional assistance is available
• how to manage vegetation to prevent disputes arising.
Key features of the new Act
Cause of action
20 It is recommended that the new Act enable VCAT to make orders:
• to restrain or remedy damage to the affected neighbour’s land or property that is caused by a tree, or prevent damage that is likely to occur within the next 12 months
• to address existing harm to anyone on the affected neighbour’s land that is caused by a tree, or prevent harm that is likely to occur within the next 12 months.
21 The Commission has not considered a compensation scheme for harm suffered. Instead the focus in the new Act is on practical remedies related to tree management.
22 The Commission considers that the torts of trespass, negligence and nuisance should continue to be available in the courts because they can provide unique remedies in broader contexts that may be useful.
23 Interference caused by a tree that amounts to annoyance but does not cause actual property damage or harm should not be actionable under the new Act. Matters such as the dropping of leaf litter that creates a mess in a neighbour’s driveway are an ordinary part of community life in urban environments. Similarly, unless an affected neighbour could establish that an overhanging branch was causing damage or harm, the Act would not provide a remedy.
The scope of the Act
24 The Commission’s recommendations about the scope of the new Act include:
• ‘Tree’ should be defined broadly to include Australian flora and introduced trees, and all parts of a tree, as well as dead trees, trees that have been removed and plants that resemble a tree in form and size.
• The Act should apply to trees on residential land and to other designated land zones. The Act should also apply to land that has the substantial character of the zones designated in the Act. The exclusion of some farming and rural land and land that is used for commercial timber plantations is consistent with interstate Acts. The Commission recommends that the breadth of the zoning provisions is revisited when the Act is reviewed and that further consultation occur with farmers and users of agricultural land at that time.
• An affected neighbour’s land must adjoin a tree owner’s land with a common boundary, or be separated by a thoroughfare or other area specified in the Act.
• If a tree straddles a boundary line, an affected neighbour should be able to bring a claim regardless of how much of the tree is on the affected neighbour’s land.
• Legal action may be commenced by an affected neighbour who is the owner of the affected land, or an occupier where the owner has refused to take action. Action can only be brought against the owner of the land with the tree.
25 The Commission recommends that VCAT consider developing an application form based on those used in the NSWLEC and QCAT. The form should ask for extensive information from the parties upfront to help the decision maker determine the suitability of matters for alternative dispute resolution and to narrow the issues in dispute if the matter proceeds to a hearing.
26 Introducing a new Act and providing clarity in the law will assist the community to resolve their disputes informally outside VCAT. A new Act will also reduce the number of enquiries to the Dispute Settlement Centre of Victoria and help it to resolve those enquiries and mediate disputes.
27 Resolving disputes informally allows neighbours to come up with creative solutions and maximises the chances of preserving neighbourly relations. It is also cheaper than going to court.
28 The Commission makes recommendations to improve awareness about existing informal resolution options such as:
• neighbour-led negotiation
• free mediation via the Dispute Settlement Centre of Victoria.
29 The common law remedy of abatement should be modified by the new Act so that pruned tree branches and other material are not required to be returned to the tree owner. The Commission identified that this common law requirement can make disputes worse.
30 Some community responses favoured including responsibilities for tree owners in legislation. The Commission does not support the introduction of non-binding responsibilities for tree owners, or a requirement that parties have attempted to resolve the dispute informally before VCAT will make an order or the matter can proceed to a hearing, as occurs in some states.
31 The Commission provides its preliminary views about including a formal branch removal process in the new Act to address concerns about overhanging branches that do not result in damage or harm to people. This mechanism is included in legislation in Queensland and Tasmania. The Commission suggests that the usefulness of this process be considered when the Act is reviewed. At that time Government should consult with the Queensland and Tasmanian governments, dispute resolution centres and community legal centres about the effectiveness of this mechanism interstate and how it might work in Victoria.
VCAT to determine tree disputes
32 Tree disputes should be adjudicated in VCAT because its processes are most suited to the needs of the community. A VCAT framework will ensure that costs are kept to a minimum. It will be possible to use VCAT’s existing alternative dispute resolution programs, as well as its expertise in planning and environment matters and civil claims. VCAT is specifically designed for parties without legal representation and is less formal than a court.
The expertise of decision makers
33 The Commission recommends that Government consider appointing to VCAT expert members with extensive arboricultural experience to hear these disputes on site, as occurs in New South Wales. Alternatively, VCAT should consider the Queensland approach of using Tribunal-appointed independent tree assessors to conduct on-site inspections and provide reports to VCAT, with the cost shared by the parties.
34 The new Act should facilitate evidence-based, transparent and consistent decision making. This will require mandatory and comprehensive decision-making principles to help decision makers to balance competing rights and interests fairly and transparently. They will also help people to resolve their own disputes outside a formal VCAT hearing or in mediation.
35 Decision-making principles are a feature of comparable interstate legislation and some local council and planning laws in Victoria. It is recommended that the list of decision-making principles in the Act be comprehensive but also provide VCAT with the discretion to consider additional relevant matters. Principles should include:
• the broader benefits of the tree to the community
• the requirements of other laws
• whether anything other than the tree may have contributed to the damage or harm
• whether the tree existed first in time
• the location and health of the tree
• any steps taken by the affected neighbour or owner to resolve the dispute.
Expert evidence in VCAT
36 VCAT hearings should be informed by arboricultural evidence.
37 The Commission recommends minimum qualification standards for arborists and independent tree assessors who provide evidence to VCAT. Minimum qualification levels will help ensure trees are properly assessed in accordance with industry-approved risk assessment methods and will guide the community when hiring arborists.
38 VCAT should develop a specific Practice Note about the need to demonstrate a causal link, supported by expert evidence, between the tree and the harm (for example, a medical condition) that is the subject of the application.
39 Additional recommendations outline requirements for expert report writing.
Remedies and appeals
40 The Commission recommends that the Act should provide for timely, practical and effective remedies for tree disputes. These will provide guidance to the community about the likely outcomes if a matter proceeds to hearing.
41 Tree works conducted pursuant to orders should comply with Australian pruning standards and be carried out by a suitably qualified arborist as determined by VCAT.
42 While existing appeal mechanisms in VCAT are appropriate, the new Act should allow the parties to apply to VCAT to vary or revoke the original order where new circumstances are not accommodated in the original order. Trees are dynamic, living organisms and the facts relating to disputes can change over time. However, such applications should be limited to one per year to prevent vexatious applications and provide certainty to the parties.
43 The new Act should include a penalty for failure to comply with an order. To facilitate the practical resolution of a dispute, where an order is not complied with, the Commission recommends that a party be able to apply to VCAT for permission to enter the tree owner’s land and carry out the works themselves. Reasonable costs incurred as a result should be able to be recouped from the non-complying party as a debt in the relevant court and safeguards should apply for entry to the neighbour’s land.
Interaction with other laws
44 In the interests of adopting a straightforward, accessible and timely statutory scheme, the Commission wishes to avoid the involvement of multiple decision makers and multiple decision-making frameworks. To achieve this, orders made under the new Act should supersede some requirements under other laws, subject to safeguards.
45 These safeguards will ensure that VCAT can consider information that would have been considered under the other law. Other responsible authorities will be invited to participate in the hearing process. Additional safeguards are recommended for particular laws.
The need to obtain a planning permit to carry out works on a tree
46 The Commission recommends that the existing permit exemptions in the Victoria Planning Provisions under the Planning and Environment Act 1987 (Vic) be expanded to include orders under the new Act. This would mean an Order under the new Act would have effect despite any requirement to obtain a permit to remove, prune or destroy vegetation under overlay requirements or native vegetation provisions. If the requirements of the new Act were satisfied a party would not need to obtain a permit under these planning provisions before applying to VCAT for a remedy. Recommended safeguards aim to ensure minimal interruption to established policies.
47 Local laws made under the Local Government Act 1989 (Vic) often protect ‘significant’ trees and require the owner to obtain a permit to carry out works to the canopy or the root protection zone.
48 An affected neighbour is often unable to apply for a permit to conduct works on a protected tree because local laws generally only allow the tree owner (or someone with their written permission) to apply for a permit. Fulfilling this requirement would be impractical and place an unreasonable burden on applicants.
49 An order under the new Act should override local laws. Safeguards should extend to giving significant weight in the decision-making process to local laws and policies already in place.
The Heritage Act
50 Generally, a permit or permit exemption is required to carry out works to heritage-listed trees or heritage-listed places containing trees under the Heritage Act 2017 (Vic). Heritage laws will only allow the owner of a tree (or someone with their written permission) to apply for a permit or exemption. An affected neighbour may be unable to resolve their dispute if the tree is heritage-listed.
51 The Commission recommends amending the Heritage Act to provide that it is subject to any order made pursuant to the new Act where the tree has been assessed as posing an imminent danger to life or property. Because heritage-listed trees are important to Victoria, the Commission recommends interfering with existing laws only in emergencies. VCAT would need to consider the factors Heritage Victoria would have addressed in a permit decision, and any replanting requirements to maintain the heritage value of the landscape.
The Aboriginal Heritage Act
52 The Aboriginal Heritage Act 2006 (Vic) aims to protect Aboriginal cultural heritage. The Act requires a permit or a permit exemption to carry out works to protected vegetation, for example an Aboriginal scarred tree. Because ownership of Aboriginal cultural heritage is determined by traditional owners, the Act does not limit those who may apply for a permit or exemption. The Commission concludes that decisions about works to protected trees under this Act are best left to Registered Aboriginal Parties or Aboriginal Victoria.
The Fences Act
53 The Magistrates’ Court has jurisdiction to decide matters under the Fences Act 1968 (Vic). The Commission recommends that if a tree is causing damage to a fence, or forms part of a fence that is causing or is likely to cause damage or harm, VCAT should have the jurisdiction to make orders in relation to both the tree and the fence. It would be prudent in this situation for orders to be made about the tree and the fence at the same time by the same decision maker. The Commission recommends amending the Fences Act to provide VCAT with this jurisdiction.
The Catchment and Land Protection Act
54 The Catchment and Land Protection Act 1994 (Vic) places obligations on land owners to manage listed weeds. Directions can be issued under this Act to land owners to take measures to control or eradicate weeds.
55 The new Act should apply to recognised weeds that meet the definition of ‘tree’ in the Act and where the problem caused by the weed fits within the ambit of the proposed Act. To do otherwise would prevent a number of tree disputes from being resolved. VCAT should consider any past actions taken by the landowner under this Act when determining the scope of orders.
Other Acts and laws
56 This report provides the Commission’s views about the interaction of the new Act with other existing planning mechanisms and laws. Further consultation is required to determine the extent to which some of these laws might interact with the new Act.
New owners of land
57 The new Act should clearly outline the rights and obligations of new land owners about trees that have been or are the subject of a formal tree dispute. This will give the tree dispute finality, and the parties certainty, about how to manage the tree. It will also avoid duplication of legal proceedings. The new Act should:
• require relevant matters to be disclosed to potential purchasers before sale
• hold new owners responsible for complying with orders from the date of settlement
• state that only immediate new owners may benefit from orders
• avoid adding extra steps or complexity to the sale of land process.
58 The new Act should be reviewed after five years of operation to determine if it is achieving its objectives. The Commission identifies some particular matters for consideration by Government when the Act is reviewed.
59 The Commission’s preliminary views on some matters beyond the scope of this inquiry are provided at the conclusion of this report, as well as other issues that should be considered by the Government in designing the new Act, for example online dispute resolution.
Margaret Davies and Kynan Rogers, ‘Tale of a Tree’ (2014) 16 Flinders Law Journal 43, 52.