Transcript of 'Old Law, New Law' episode 4: Neighbourhood Tree Disputes

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Victoria Thieberger: Our house is in Daylesford, so it’s a lovely rural area and on our fence line we have a beautiful old conifer, it was about 100 years old we think, just from the other trees on the property.   

The neighbours who share that fence line one day just cut it down and hauled all the pieces away. They didn’t mention it before hand, didn’t discuss anything. To me it’s just an act of vandalism for them to cut this down without any discussion or consultation beforehand. 

Nick: That was Victoria Thieberger, a Daylesford property owner who was involved in a dispute with her neighbour. She found there was no easy way to resolve the matter, or even to find out what the law says. 

Gemma: Problems like these are surprisingly common. The Dispute Settlement Centre of Victoria receives thousands of queries a year about tree problems, and it's one of the reasons the Victorian Law Reform Commission took on an enquiry into the law of neighbourhood tree disputes. Its report was launched late last year by the Attorney-General of Victoria, Jill Hennessy. 

Nick: Welcome to ‘Old Law, New Law’ a podcast by the Victorian Law Reform Commission. I’m Nick Gadd.

Gemma: And I’m Gemma Walsh. Today we are talking about the problems of neighbourhood tree disputes. 

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Gemma:  We’re joined by the VLRC Community Law Manager Natalie Lilford, and Emma Cashen who is the team leader of the Neighbourhood Tree disputes enquiry. So, Emma, what is a neighbourhood tree dispute? 

Emma: They are very varied. Most are about overhanging branches, encroaching tree roots under fences, and leaf litter and that may lead to concern over overflowing gutters, cracked paving, broken fences. People are annoyed about having to prune back a neighbour’s tree, and not being able to get that neighbour to contribute to the cost of that work. Disputes also can also arise over serious concerns about large trees close to fences and the danger of limbs dropping on property or people. Others want action taken in relation to trees that might trigger allergy problems. There are disputes about tree works carried out without consent and they can often involve trespass or poison so there is extreme  cases in the media of people coming home from a day out to find their tree chopped down and all the wood neatly stacked next to what use to be their tree in the back yard. As well as all these problem tree issues, as Victoria’s story shows, disputes can also arise about overzealous pruning of your trees by your neighbour. Some councils told us they receive an equal number of enquiries from people concerned about the loss of neighbouring vegetation. So, we’ve observed that the tree issues seem to affect a significant number of people in the community, they're common,  and importantly as our population gets bigger and our backyards shrink and our community places more emphasis on the environment and the urban forest, we think that perhaps these disputes might increase as well into the future. So, we think it’s a good time now to look at this issue and for reform. 

Nick: So, this was a community law reform project, that's one that the Commission chooses for itself not one that the Attorney General gives to the Commission. Natalie, can you explain how community law reform projects are chosen and why did the VLRC take on this one?

Natalie: Yeah, absolutely. So as you said these are different from the projects that are given to us by the Attorney, we have a power under our Act to self-select. We’ve got some criteria for choosing those projects that the Commission has agreed on. Generally speaking, the Community projects, we call them CLR projects, are smaller in scope and size than projects that come from the Attorney, and  some of the things that we look at when we’re deciding on our next project are the scope, how complex the area of law is, and whether the changes result from a project are relatively small and contained. How much community consultation will be needed? We look at the likely public benefit, how involved the community might be in the project, the prospects of success of the change we might recommend. For this trees project, as Emma just said, there is so many aspects of it that impact everyday life of people in the community and we really heard that from multiple sources: from professionals, arborists, from the Disputes Settlement Centre of Victoria. It might seem like a minor issue but as we'll discuss these can escalate really fast and they can impact anybody in the community, so it seemed to be a really appropriate project, relatively small but something that can affect anyone.  

Gemma: I remember when we were doing it, people would say, Well what is the VLRC doing at the moment? You'd mention Neighbourhood Tree disputes, and everyone had a story. What did some of our stakeholders tell you about the problems that they face?

Natalie: People talked about the fact that these disputes can be really draining and exhausting, being in conflict with a person who lives so close to you can have a significant impact on your home and on your life. You're reminded of the dispute when you pull  into your driveway or you're using your space in your garden. And anyone that’s been involved in a tree dispute they will probably tell you that they're hard to resolve, and one of those reasons is there is an emotional element, and people can be very attached to the trees or to their neighbours trees.

Gemma: Just to their garden or their sense of place …

Emma: Yes, they don’t like being challenged in what they're doing in their own property, so they get concerned about that. 

Natalie: Absolutely, the main thing that our recommendations have tried to address is that there is no clear dispute resolution pathway. There is information out there and there are laws that apply but it's not necessarily a clear path. People don’t necessarily have the tools to work together to resolve disputes. 

Gemma: So, if my neighbours' tree was in my opinion posing a threat to my property, maybe I thought it was going to fall down and my neighbour disagreed or didn’t want to engage with me about the problem. What really can I do about it? 

Emma: Well at the moment, it's a bit limited, which is why we have looked at it. The law's not in a single Act at the moment. You have to piece together different options from different sources and you have to look at legal principles that come from a number of  different sources as well. 

Gemma: Is it the same across all councils or is it …? 

Emma: And it's different, so councils themselves have their own laws; some councils will have local laws that might protect a tree. Some local laws protect trees that are significant, big old trees, also protect trees that have well established canopies.  so, if you're living in a leafy suburb for example there is a high chance that some of the trees in your suburb that might be causing a problem are protected by local laws. So that further complicates things and confuses people as well. So what you can do is first you try and resolve it with your neighbour. That is the first step and the common-sense step. That might not always be the best thing if you have a hostile neighbour for example that’s not going to work and it's also difficult because the law isn’t clear it's difficult to point to something to show your neighbour to motivate them to discuss the issue with you. Often, we are hearing that concerns are just simply ignored. 'Well, do what you like about it, I’m not interested.'

Gemma: There’s nothing you can do. 

Emma: You can go to court; I'll get to that in a minute, but that’s a big step.  In between that you can make an insurance claim if damage actually occurred from the tree you were talking about Gemma, you can exercise your legal right to cut that branch of the over hanging  tree branch to your fence line, and that’s called abatement.  It's a very old law and that currently also says you must then return those branches that you pruned back to your neighbour.  

Nick: You have to chuck them back over the fence? 

Emma: Legally yes, obviously that can further inflame disputes. 

Nick: It's quite an aggressive thing to do. 

Emma: Yes, it is, and no one likes vegetation unceremoniously dumped over their fence, most people in reality wouldn’t do that. They would discuss it with their neighbour, and they’d work out a solution. Technically the law says under abatement you have to give those branches back. You can contact the Dispute Settlement Centre of Victoria which Natalie mentioned earlier and they have free information services and free mediation services. So, if you can get your neighbour come along to DSCV with you, you can sit in a room and talk with a mediator and try to resolve your problem. If all else fails, your only options is to go off to court. Our research suggests few matters are actually taken to court at the moment and that's probably because court action is very expensive, and it can take a really long time.  

Gemma: Did you also speak to arborists? 

Natalie: We did, and I learnt a lot from the arborists we spoke to, largely that they a very passionate group of people. One of the things I learnt is that arborists are not just there to prune or trim or cut down trees. A lot of them are very skilled in managing the health and longevity of trees. One of the main messages they gave to us is that people have very different expectations around living with trees. What one person is able to tolerate or really enjoy, so they might appreciate a neighbours tree for their shade or their diversity, birds …all of those things.  Or another neighbour might feel as though as it's an unjustified risk that branches may drop into their garden or leaf litter may drop into their pool. So people's preferences are very different and that can underlie some disputes, and people's perceptions of what is risky and what isn’t are very different. A lot of the skilled arborists we spoke to saw themselves as having an educative role to explain those things to people. We heard also from arborists that people don’t necessarily understand what they do, and the different qualifications, and that people also often ask for help when it's too late. Some arborists told us they would come in when disputes were in full flight and sometimes, they would be asked to park around the corner or come over when the neighbour wasn’t home and do the work in secret. So, they, I think it is fair to say, received this project really positively, because they can see the front line of when disputes that go really badly. 

Nick: I guess many people, if they were faced with a tree dispute their first thought would be to go and ask the local council for help. Is that the right thing to do?  

Natalie: One of the things we learnt is  that all of the different local government area have different resources and different knowledge in this space. Obviously, in a very leafy area with big established trees, some of those councils have specific laws and specific members of staff who are there to help people with that, but in other council areas it's not the case.

Emma: The important thing to remember though is that councils won’t deal with disputes between residents on private land. That's not within the ambit of their role.

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Gemma: So, what has the VLRC recommended to try and fix this problem?

Emma: We are recommending a new dispute resolution pathway to be outlined in a new Act, a dedicated Act that will be administered by the Victorian Civil Administrative Tribunal. The aim of this Act is to address the shortcoming in the law at the moment, which is that as I explained earlier where law, you have to piece together principles from different common law. So, at the moment the law is based on Torts Law and it's about breaching a duty of care or trespass. It's further complicated by planning laws, environmental laws, heritage laws, local council laws that might protect significant trees.

Nick: So we're saying, get rid of all that and …

Emma: Get rid of all that and have a clear designated Act that people can just go to that's easy to find as and easy to use.

Nick: And what would it be called? 

Emma: The Neighbourhood Tree Disputes Act is what we suggested but that’s up to the government to come up with something they like. So, a third step in our new dispute resolution pathway is to encourage you to negotiate and work things out with your neighbour first. Ok. That’s the way most people try and resolve these disputes at the moment, and it makes sense, and it lets you come up with solutions that best suit circumstances between you and your neighbour it maximises  your chances of  keeping good relations with your neighbours and it's cheap. To help you with these informal negotiations we recommend a range of information be provided to the community. So, a new website that sets out new information, perhaps a sample letter that you can send to your neighbour that says 'I've got this problem, I’d like it fixed in this way, can we negotiate'. How to hire an arborist and what they might be able to help with their different qualification levels and perhaps some information to the community better manage vegetation to prevent these disputes arising in the first place. So, information about planning guidelines for suburban back yards. That might be information that is really simple,  like don’t plant an oak tree on the fence line or don’t plant a eucalypt that is going to end up massive on your fence line. All those things we think, the Commission thinks, should improve your changes of resolving your dispute with your neighbour. If you can’t resolve it then you go off to VCAT. VCAT is the Civil and Administrative Tribunal in Victoria. 

Nick: You’ve recommended that VCAT should be the place where neighbourhood tree disputes should be resolved if you can’t sort it out in other ways. Why VCAT? Nat?

Natalie: It's really about VCAT being a very accessible less formal flexible jurisdiction as opposed to going to the Supreme Court, which was the pathway that was available beforehand, and we recommended that's too expensive, too complicated and you really do need a lawyer to navigate those processes. VCAT by contrast is designed for people to turn up and to have a less formal discussion. 

Nick: So, under the Commission's recommendations if I go to VCAT with my neighbour to resolve the dispute, what kind of issues does the Commission recommend I will be able to sort out at VCAT? 

Emma: The new Act envisages two key causes of action, the first one is that you would be able to bring a claim to stop or remedy damage caused by a tree or damage to a neighbour's property or land that is likely to occur in the next twelve months.  

Nick: So, it can be damage that has happened in the past or damage that is likely to happen in the next twelve months. Is that right? 

Emma: Yes, damage that’s occurring now or damage that will occur in the future. So, it might be a tree dropped on the shed so it might be work to remedy the damage to the shed, those sorts of things. 

Nick: Or if I think something is likely to happen, I could raise that as well. 

 

Emma: Yes, that's right. If you're worried about a tree falling on your shed, you could bring an action in relation to that. The second type of claim is very similar, it relates to preventing harm to people. 

Nick: Will I be able to get compensation at VCAT?

Emma: No, the Commission hasn’t recommended a compensation scheme for personal injury.  You would have to go off to court to pursue that. The Act instead focuses on the practical steps you can take to address and prevent that harm from reoccurring. 

Nick: And how is VCAT going to make its decisions, who will they talk to in order to decided who’s right?

Emma: Well, we’ve recommended a number of key aspects to the VCAT process. The first is the use of expert evidence, so the obvious experts there would be arborists, so incorporating arborist evidence in the VCAT process. One of the other key steps is to have clear decision-making principles in the Act, they will guide the VCAT decision maker and also the parties to the dispute about the way the decision-maker will balance competing interests and ensure all the relevant information considered by that decision-maker. 

Natalie: What we’re proposing is not out of step with what's happening in other jurisdictions, there are Acts similar to this in other jurisdictions particularly in New South Wales, Queensland, a relatively new one in Tasmania …

Gemma: Are they quite new? 

Natalie: Yes, we obviously looked very closely at what's happening in other jurisdictions when we were designing a Victorian scheme. One of the important things to note is that the Commission was of the view that trees are a really  important part of our every day life and things that can be considered to normal aspects of living around trees should not necessarily be actionable. For example, just having leaves falling on your driveway is not necessarily something that should trigger all of the dispute resolutions elements under the Act. There needs to be a certain level of tolerance and resilience around normal things that can happen. General annoyance and discomfort that isn’t necessarily causing harm is an ordinary part of community life. 

Nick: The Victorian Law Reform Commission Report on Neighbourhood Tree Disputes was handed to the Attorney General Jill Hennessy last year. So, what happens to it now, Emma? 

Emma: Our work is done now, the Commission's work is finished, and it’s for government  to decide whether to implement our recommendations, and at the public launch of the report the Attorney General did indicate support for introducing legislation. The content and timing for that legislation will be for the government to decide. We will have to watch this space. 

Nick: Watch this space.

Gemma: Now that that’s been handed to the Attorney General what’s next for the Community Law Reform team? 

Natalie: Well we are always open to hearing from people their suggestions for new topics for law reform and if you look on our website, you’ll see there is an online webform that you can make suggestions and that can really be anything that you’ve identified that impacts your life and all suggestions are welcome. We hear from students, community groups, from lawyers, barristers, different organisations. We've recently had the Commission approve our next project which is looking at the question of whether people with  hearing or visual impairment can serve as jurors on Victorian juries. 

Gemma: At the moment they can’t? 

Natalie: At the moment there are a few laws that make it very difficult to serve on juries. One of the major things that you're not allowed to have an extra person in the jury room. So someone who’s for example needs an Auslan interpreter or a stenographer at the moment would not be able to access that support to become a juror. So we will be looking at the legal barriers are to that. 

Nick: If you want to know more about the law of Neighbourhood Tree Disputes please visit the Victorian Law Reform Commissions website where you’ll find the complete report along with a short summary version and other related documents. 

Gemma: Join us again next time for 'Old Law, New Law.'

 

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