The Limits of the Court's Jurisdiction Under the Trees (Disputes Between Neighbours) Act

Commissioner Judy Fakes has recently handed down a judgement which re-enforces the principle that the Land and Environment Court does not have jurisdiction to grant relief under the Trees (Disputes Between Neighbours) Act unless most of the trunk of the tree in question is growing on the "respondent's" property. See Frith & anor v Devile & anor, (2014) NSWLEC 1198:

http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=174349

Accordingly, in situations where the branches of a tree overhang a neighbouring property, but it cannot be proven through a survey that  most of the tree trunk is on the "respondent's" land, the Court is powerless to order that remedial action be taken with respect to the tree, or that compensation be paid for damages caused by falling branches from the tree.  

The Frith case arose from an application which sought the removal of an Ironbark tree that was growing on an embankment on the side of the respondents' driveway. Part of the canopy of the tree overhung the applicants' property. They alleged that falling branches from the tree had nearly caused injury to persons on their land, and had caused damage to the sarking of the roof of their home.

Following the lodging of the application seeking removal of the tree and the payment of compensation, the Court made directions requiring that a survey be conducted. Under section 4(3) of the Trees Act, the Act does not apply unless the tree that is the subject of an application is situated "wholly or principally on the land" of the property owners from whom a remedy is sought.  The Court has ruled that the location of a tree must be determined "at ground level" (in other words, based on where the trunk is situated) even where branches of the tree overhang the adjacent property.

In the Frith case, the survey that was carried out pursuant to the Court's directions found that more than half of the trunk of the Ironbark tree in question was located on a property that was next to the respondents' land. Because the majority of the tree was not on the respondents' land, Commissioner Fakes concluded that she did not have authority to order any remedial action with respect to the tree or payment of compensation for damage caused by falling branches from the tree. Therefore, the application was dismissed.

The decision in this case illustrates that in cases where trees a growing near a common boundary, prospective applicants would be prudent to commission surveys to confirm that most of the trunk of the offending tree is growing on the land owned by the prospective respondent (in any event, if they do not do so they may nonetheless required to do so before a hearing is held). In situations where it cannot be proven through a survey that the majority of the tree trunk is on the respondent's land, the application will fail, and the applicant will not only be denied a remedy but may even suffer a costs order.