Tree on property boundary

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  • 10/02/2017 at 9:32 pm #10887
    chesswood
    Flatchatter

      A tree is causing damage to the back yard of my Sydney townhouse. By my geometry, 5% of the base of the tree is in our common property. 95% is in common property of the gated townhouses we back on to. When the dividing fence was built, the fencers cut the corner (presumably under instructions), isolating the troublesome tree on our side of the fence. 

      Since late 2015, we’ve been trying to get the gated lot do something about the tree, namely get Council permission, cut it down, and grind out the damaging roots. The job won’t be easy – there are power cables buried close to the tree and there’s the adjacent fence to be considered.

      They ignore all our letters/emails/phonecalls and all requests from Community Justice for mediation. Perhaps they think that trees beyond the fence aren’t their concern.

      What can I do to get some action? NCAT?

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    • 11/02/2017 at 10:28 am #26393
      Lady Penelope
      Strataguru

        If the neighbouring OC is refusing to deal with your OC then perhaps your OC should consider taking independent action. See here for a detailed list of options and processes to go through: 

        https://www.legalanswers.sl.nsw.gov.au/guides/neighbours/trees.html

        NCAT may not be the most appropriate path for you to take. An extract from the above link states: The Trees (Disputes Between Neighbours) Act 2006, called the ‘Trees Act’, provides a much cheaper and simpler method for resolving some of the tree disputes between neighbours than the legal remedy that was previously available.

        A Court Order from the Land and Environment Court may be required. The steps to achieving that Order are contained within the above link and also the Land and Environment link here: 

        https://www.lec.justice.nsw.gov.au/Pages/types_of_disputes/class_2/Trees-hedge-disputes-process/treedisputes_what.aspx

        11/02/2017 at 1:41 pm #26394
        Digby
        Flatchatter

          Hi, 

          If the tree falls and damages their property it could be a blessing for you. It is a costly process civil procedures to resolve some matters which may seem normal.

          Assuming you have evidence of tree damage on your property for example entering waste drains,  effecting the structural foundations of your building, garden or foot path & fallen branchs

          Endangered species, most councils would not approve of the removal unless you can prove the above.  

          Keep copy of all communication to there OC.  Arranging discussion is one thing, how they react is another. 

          Good Luck. 

          Digby 

          11/02/2017 at 11:46 pm #26397
          chesswood
          Flatchatter
          Chat-starter

            Proudsceptic’s reply displays some knowledge of the law but s/he hasn’t indicated how I’m supposed to get the neighbour to do anything. The strata manager (a good-sized company) has apparently been told to ignore anything from us about the tree. We don’t have any of the committee phone numbers. I can write to the secretary of the OC at their street address. Or I can climb over the locked gate and go door-knocking. Any other suggestions?

            As for the Trees (neighbourhood disputes) Act, it doesn’t say anything about how to prove whose land the tree is on so presumably I’ll need to hire a surveyor. The thousand or so that would cost would be a good start to the cost of cutting the tree down.

            12/02/2017 at 12:00 pm #26398
            Lady Penelope
            Strataguru

              chesswood – From my reading of the Act and my reading of the process you may not need a surveyor.

              If you are confident of your claim that the tree is on the boundary and that the fence has been built around the tree and you provide photographs of the tree and the fence, plans of your Lot, etc then that will possibly be enough for your OC to bring a claim against your neighbour. During the Court deliberation process you will probably get a site visit to confirm the location of the tree and the boundary.

              If your OC has done everything that it can to mediate this issue with no satisfactory result then you don’t need to contact your neighbours again. Your OC does not need anything else from your neighbour to bring a claim against your neighbour in the Court – their refusal to deal with you is sufficient to prove that they are being unreasonable and unresponsive. The mediated outcome has clearly not worked so another course of action is needed.

              Just go straight to the Dispute Resolution offered by the Land and Environment Court using the information that I have outlined in my previous comment. Include as much information as you can to back up your claim including: photos;  original survey plans of the Lot; timelines of actions taken including letters sent etc. Your strata manager may be able to assist. You may need to obtain the original plans from Council if your OC does not have them on record.

              If the neighbours are to bear all or some of the cost of the tree removal then the Courts will make an Order to that effect. That should be the end of the matter.

              22/08/2017 at 9:09 am #27960
              chesswood
              Flatchatter
              Chat-starter

                Things have moved on. We commissioned a boundary survey which disclosed that  the boundary cuts right through the middle of the tree. After a struggle with long-forgotten geometry and calculus, the tree’s ownership at ground level is as follows: Gated Lot’s OC 50%. Our OC 20%. Me 30%. Section 4 of the Trees (Neighbourhood Disputes) Act 2006 gives jurisdiction to the Land & Environment Court if the tree is based wholly or substantially on adjoining land. There’s good case law for “adjoining” but the sticky bit is that Gated Lot’s share is only 50% which isn’t quite enough. I’ll need to convince the court that I can aggregate the 50% and the 20% to make the tree substantially on adjoining land, i.e. on two pieces of adjoining land. Helpful staff at the court registry referred me to Brown and Anor. vs. Weaver 2007 LEC 238 but I can’t find it on their website. It apparently discusses the meaning of “substantially”.

                22/08/2017 at 1:13 pm #27962
                scotlandx
                Strataguru

                  Here is a link to Brown & anor v Weaver (2007)

                  https://www.caselaw.nsw.gov.au/decision/549f8fcf3004262463aea04c

                  And here is a list of cases on the LEC website where tree removal was ordered.

                  https://www.lec.justice.nsw.gov.au/Pages/types_of_disputes/class_2/Trees-hedge-disputes-process/Treedisputes-helpfulmaterials/damage_to_property_or_injury_to_persons/tree_removal_approved.aspx

                  28/02/2018 at 1:53 pm #29290
                  chesswood
                  Flatchatter
                  Chat-starter

                    We gave up on the Land & Environment Court – they don’t seem to have heard of Strata Title land but that’s another story. I persuaded our OC to take Gated Lot’s OC to the NSW NCAT under section 233. I was pleasantly surprised when Gated Lot turned up for hearings. I got Gated Lot to join our OC in applying for Council permission to remove the tree. The only sticky bit is that Gated Lot don’t want to contribute even 50% of the costs.

                    I reckon that the tree removal costs are borne by the owner of the land. This tree’s 50% each way so 50% of the costs should be met by Gated Lot. I’d like to see them pay more because they stuffed us around for over a year but perhaps I can’t get that. Under what circs can they avoid paying 50%?

                    28/02/2018 at 3:05 pm #29292
                    Jimmy-T
                    Keymaster

                      If as you say the other party is required to pay half the cost of the tree removal, the OC should just get on with it and then send them half the bill.

                      The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
                      29/03/2018 at 2:06 pm #29485
                      chesswood
                      Flatchatter
                      Chat-starter

                        The tree’s gone at last (after 27 months no less). There’s overwhelming precedent that the owner of the land which the tree’s base is on should pay for its removal even if someone else instigated the request to remove it.

                         

                        How can I apply that principle to my case with the tree 50-50 on two properties?

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