1.1 Many people have strong and valuable relationships with their neighbours. Living near neighbours can be beneficial, and can allow for sharing of resources, keeping an eye out for one another’s safety and wellbeing, and creating a sense of community. However, people living near each other can be affected by each other’s decisions and property.
1.2 Trees on private land are usually privately owned, but the benefits of living in a treed environment are shared. Neighbours may enjoy the increased shade, cooling properties, biodiversity and aesthetic value of a neighbour’s tree. Particular trees may be valued for the privacy they provide, or for their noise-reducing qualities. Properties in leafy suburbs have stronger property values than those without trees.
1.3 Sometimes, however, trees on private land and the way they are (or are not) maintained can cause disturbance to neighbours’ use and enjoyment of their own land. Neighbours need not directly interact with one another to have an impact on each other’s lives.
1.4 Common issues that may lead to disputes between neighbours about trees include:
• branches hanging over boundary lines
• roots causing damage to foundations, drainage and sewer pipelines
• the spread of weeds and creeping plants
• leaf litter causing damage or creating hazards (eg slippery pathways or clogged gutters)
• unsafe trees and branches creating hazards (eg poisonous fruit or leaves, or insecure branches)
• trees impeding a view and/or blocking sunlight, and/or affecting the neighbour’s ability to use solar panels.
1.5 These disputes can be generally characterised as a competition of rights, namely the tree owner’s right to use and enjoy the land in any lawful manner they see fit, and the affected neighbour’s right to enjoy their land without unreasonable interference.
1.6 Tree disputes, whether based on minor impositions, such as trees dropping leaf litter or branches beginning to grow over a property border, or more significant ones, such as damage to property or harm to people, can inspire passionate and uncompromising reactions.
1.7 The fact that tree disputes may affect people’s property rights, their home life and their interactions with neighbours exacerbates their impact.
1.8 Where a tree owner refuses to remedy the issue, neighbourhood tree disputes can escalate quickly, and can undermine a good neighbourly relationship.
1.9 Personal security and safety within a private home-space are important, and an ongoing dispute with a neighbour can threaten individuals’ enjoyment of this space.
1.10 The probability of this type of dispute escalating may be higher because of neighbours’ close proximity to one another, resulting in more encounters in their day-to-day lives.
1.11 Tree disputes can also escalate into further disputes, such as vandalism or other matters.
1.12 The need for clear rules and simple processes to resolve neighbourhood tree disputes has been recognised since the beginning of written law.
1.13 Early documentary evidence of this can be traced back to around 455 BC and the Laws of the Twelve Tables, often cited as the beginning of European law. Representing the written code of the Roman Republic, the laws were drawn up by a commission of ten (Decemviri), and recorded on twelve bronze tablets. Designed to apply across the entire society, regardless of class, the laws included these rules about trees’ impact on neighbours justifying legal action and attracting penalties:
If a tree from a neighbour’s farm has been felled by the wind over one’s farm, …
one rightfully can take legal action for that tree to be removed.
If an overhanging tree causes injury by its branches or its shade, let it be cut off
15 feet from the ground.
For each illegal cutdown of trees that belong to someone else the culprit shall pay
1.14 In Victoria, people usually begin by trying to resolve their disputes with neighbours informally. However, this is often not practicable or effective, particularly where neighbours disagree over who is responsible for taking action to mitigate risks or damage.
1.15 Neighbours involved in tree disputes may not have a clear sense of their rights and responsibilities, making informal dispute resolution difficult. The Dispute Settlement Centre of Victoria (DSCV), a unit of the Department of Justice and Regulation, deals with a large number of tree-related disputes. Its mediation services are often the first external assistance sought.
1.16 If mediation is unsuccessful, parties involved in tree disputes may choose to take their dispute to court. These disputes are currently governed by the common law, specifically the torts of nuisance and negligence. Common law rules in this area are often complex, difficult to define, and lack clear statements of rights and responsibilities.
1.17 The main remedies for tree disputes are court orders for an injunction and/or damages. These tortious 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’.
1.18 The options currently available for resolving disputes are either non-compulsory and non-binding (informal resolution, DSCV mediation and private mediation) or litigious and not very accessible (court-based legal action).
1.19 The Commission has been told by community members that the current mechanism for addressing tree disputes in Victoria is confusing, ineffective and costly.
1.20 Proposals and comments received in favour of reviewing the law call for the implementation of a statutory scheme that clearly sets out the rights and responsibilities of parties involved in tree disputes.
Defining a tree
1.21 Disputes between neighbours can arise over a wide variety of vegetation, including trees of different sizes, bushes, creepers and vines, overhanging branches, roots, products of trees (needles, leaf litter and pollen) and dead trees.
1.22 Although most people have a common understanding of what a tree is, there are very few definitions of ‘tree’ in Victorian legislation. Existing definitions include:
• The Forests Act 1958 (Vic) provides that a ‘tree or trees includes trees shrubs bushes seedlings saplings and reshoots whether alive or dead’.
• 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’.
1.23 At the local government level, trees are defined in different ways. For example, the Melbourne City Council’s definition includes ‘the trunk, branches, canopy and root system of [a] tree’. 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’.
1.24 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’. Further definitions are set out at [6.17]–[6.27].
1.25 For the purposes of this review, the Commission is seeking community views about disputes over trees and vegetation broadly. Other jurisdictions provide different definitions of what constitutes a tree, and the options for this in Victoria are discussed in Chapter 6.
The quantifiable economic benefit of trees is also increasingly well recognised. See, eg, the discussion in Greg M Moore, ‘The Importance and Value of Urban Forests as Climate Changes’ (2012) 129(5) The Victorian Naturalist 167.
Government of Queensland, What to Do if a Neighbour’s Tree is Affecting You <www.qld.gov.au/law/housing-and-neighbours/disputes-about-fences-trees-and-buildings/resolving-tree-and-fence-disputes/what-to-do-if-a-neighbours-tree-is-affecting-you/>; Dispute Settlement Centre of Victoria, Department of Justice and Regulation (Vic), Know Your Rights <www.disputes.vic.gov.au/know-your-rights-0>; Community law reform proposals received by the Commission between 2010 and 2016.
Gregory Moore, ‘Acts of Arborial Violence: Tree Vandals Deprive Us All’, The Conversation (online), 2 June 2015 <https://theconversation.com/acts-of-arborial-violence-tree-vandals-deprive-us-all-41342>; Dan Jervis-Bardy, ‘Vandals graffiti Unley home after owners gain approval to cut down river red gum tree’, The Advertiser (online), 26 July 2017 <www.adelaidenow.com.au>; Lynda Cheshire and Robin Fitzgerald, ‘From Private Nuisance to Criminal Behaviour: Neighbour Problems and Neighbourhood Context in an Australian City’ (2015) 30(3) Housing Studies 100, 101, 115–6.
Oliver Thatcher (ed), The Library of Original Sources, Vol. III: The Roman World (Milwaukee University Research Extension Co, 1901) 9–11.
Translations sourced from a number of sites (see footnotes 6–8). Tablets VII and VIII appear to have been used interchangeably.
Tablet VIII, 9: Allan Chester Johnson, Paul Robinson Coleman-Norton, and Frank Card Bourne, Ancient Roman Statutes (University of Texas Press, 1981). Reproduced in The Avalon Project, Documents in Law, History and Diplomacy (2008) Yale Law School Library <http://avalon.law.yale.edu/ancient/twelve_tables.asp>.
Tablet VIII, 5: The Romans EU, The 12 Tables <www.the-romans.eu/books/The-12-tables.php>.
Tablet III, 12: ibid.
Victoria Law Foundation, Neighbours, the Law and You (March 2015) Everyday Law <www.victorialawfoundation.org.au/publication/neighbours-the-law-and-you/read>.
Typically in the Magistrates’ Court: Magistrates’ Court Act 1989 (Vic) s 100. VCAT does not have jurisdiction to hear common law complaints.
Margaret Davies and Kynan Rogers, ‘Tale of a Tree’ (2014) 16 Flinders Law Journal 43, 52.
Information provided by the Dispute Settlement Centre of Victoria to the Commission on 18 May 2016; Community law reform proposals received between 2010 and 2016.
There is no definition of ‘tree’ in the Catchment and Land Protection Act 1994 (Vic); Conservation, Forests and Lands Act 1987 (Vic); Flora and Fauna Guarantee Act 1988 (Vic); Planning and Environment Act 1987 (Vic); Heritage Act 1995 (Vic); Aboriginal Heritage Act 2006 (Vic).
Forests Act 1958 (Vic) s 3.
Country Fire Authority Act 1958 (Vic) s 3.
Melbourne City Council, Activities Local Law 2009, 1.11.
Nillumbik Shire Council, Nillumbik Tree Management Guidelines, September 2015, 7 <www.nillumbik.vic.gov.au/Council/Council-property/Maintenance>. This definition is drawn from Standards Australia Pruning of Amenity Trees (AS 4373-2007) (Sydney, NSW: Standards Australia, 2007) .
Susan Butler (ed), Macquarie Dictionary (Macquarie Dictionary Publishers, 6th ed, 2013) ‘tree’.