In 2006 the Trees (Disputes Between Neighbours) Act came into force. We reported on that earth shattering event in our December 2006 newsletter.
With the passage of time disputes between neighbours have not completely disappeared and as a result the Act has been amended, last month, to provide the resolution of disputes about high hedges that block sunlight or views and to make further provision in relation to the enforcement of orders and the jurisdiction of the Land and Environment Court.
The Act when first introduced was intended to provide a simple, inexpensive and accessible process for resolving neighbour disputes about trees. The Act itself provided that it should be reviewed 2 years after its commencement to determine whether the policy objectives of the Act were valid and whether the terms of the Act remained appropriate for securing the objectives of the Act.
That review has led to the amendment. The Act as originally proposed affected trees which caused, were causing or were likely to cause damage to property or injury to a person. The Act has now been extended to cover trees that block sunlight and views.
The Minister when speaking to the House indicated that the scope for Applications would be limited to the most serious cases. Neighbours would not be able to make an application in relation to a single tree. There had to be two trees or more that formed a hedge. The trees had to rise to a height of at least 2.5metres. We are not sure what distance there has to be between the trees before one assumes that the intention is to form a hedge.
There will have to be extreme obstruction of sunlight or views to a window of a neighbour’s dwelling.
Because we live in a feel good type of society, the Court will not make an Order unless the neighbours have attempted to resolve their dispute without resorting to court action.
If a Court does have to deal with the issue there is a complex range of factors to be taken into account. The first of which no doubt is whether or not there was any intention to form a hedge. The Court has to take into account the contribution of trees to the natural landscape and the scenic value of the land or locality. The impact of trees on soil stability, the water table and other natural features of the land have to be taken into account. The contribution of the trees to privacy, landscaping, garden design, heritage values and protection from the sun, wind, noise, smells or smoke or the amenity of the land on which they are situated are all to be taken into account. All this of course means that you will need a horticultural degree to conduct your court case, or in the absence of a horticultural degree you will need to engage landscaping and arborial experts at huge costs to fight your court case.
The Act also appears only to cover trees that are planted. That implies some positive act by the land owner. Many of our plants of course self seed but hopefully not in hedges!
In 2009 there were 96 decisions of Commissioners in relation to trees. So far in 2010 there have been 32.
Look for an increase once the amendments to the Act come into place.