Trees

What is a tree?

In the Trees (Disputes Between Neighbours) Act 2006 (NSW), a tree is defined as:

• any woody perennial plant
  
• any plant resembling a tree in form and size
  
• any other plant prescribed by the regulations.
  

The Trees (Disputes between Neighbours) Regulation 2019 (NSW) defines a tree to include:

• bamboo
• tiger grass
• giant clumping grass
• any plant that is a vine.
  

This definition applies to tree disputes relating to overhanging branches, tree roots, dropping leaves and trees causing damage to property or injury to others.

Is bamboo a tree?

Yes, the legal definition of a tree includes bamboo, tiger grass/giant clumping grass and any plant that is a vine. 

What is a hedge?

A hedge is defined as two or more trees over 2.5 metres high (above ground level) that are planted together to form a hedge.

Does the legislation apply to all trees in NSW?

The Trees (Disputes Between Neighbours) Act 2006 (NSW) only applies to trees situated on land within certain zones, including:

• residential
  
• rural-residential, except for disputes about high hedges that obstruct sunlight or views
  
• village
  
• township
  
• industrial, or
  
• business.
  

If you have a dispute about a tree that is not situated in one of these zones you may need to get legal advice from a private lawyer.

What can I do if I have an issue with a tree situated on council land?

Trees situated on council land are excluded from the Trees (Disputes Between Neighbours) Act 2006 (NSW). 

If you have a dispute about a tree on council land, you could contact your Local Council.

If you are unable to resolve the dispute, you should get legal advice from a private lawyer. 

Can I cut overhanging branches from my neighbour's property?

You may be able to cut overhanging branches of your neighbour's tree back to the boundary line, but you need to check with your Local Council first. Some Local Councils limit the amount of pruning you can do, or will not allow you to prune at all unless you get approval.

When you contact your Local Council, you will also need to check whether the tree is protected by a Tree Preservation Order. A Tree Preservation Order is an order that stops a tree from being cut, damaged or removed unless you have approval from the council.

If you cut overhanging branches you should be careful not to cause damage to the tree. You can be held legally responsible for damaging the tree.

You should return the branches you have pruned to your neighbour, unless you have an agreement about how you will dispose of them. Any cuttings or roots from your neighbour’s tree belong to them.

How can I access to my neighbour’s property to cut back overhanging branches?

If you want to cut back overhanging branches you should speak to your neighbour first. You should talk to them about any costs involved and negotiate an agreement. You should get this agreement in writing as this may help if there is a dispute at a later stage.

You need permission from your neighbour if you need access to their property to prune or undertake this work. If you can't get their permission, you may have other options, for example, you may be able to:

• try mediation at a Community Justice Centre
• apply for an order from the Local Court to enter your neighbour's property to carry out certain work. This is called a neighbouring land access order.

For more information on applying for a neighbouring land access order, see the Fences topic.

Does my neighbour ​​have an obligation to cut overhanging branches from their property?

Your neighbour does not have a legal obligation to cut overhanging branches from their property.

If you have a problem with overhanging branches, you can try talking to your neighbour about your concerns. If you need help negotiating with your neighbour, you can try Community Justice Centres for mediation.

In some circumstances, you might be able to prune the tree or apply for an order from the Land and Environment Court.

What do I do with the branches​ or roots I have pruned?

Any cuttings or roots from your neighbour's tree belong to your neighbour. This means that the cuttings or roots should be returned to your neighbour, but you should speak to your neighbour first to see if they want them back. You should also be careful about placing any cuttings or roots back on your neighbour's property, as you can be held responsible for any damage.

If you think your neighbour might have a problem with you returning the tree cuttings or roots, you should get legal advice from a private lawyer about what you can do.

Who has to pay for the​ cost of pruning overhanging tree branches?

There is no specific law that says the owner of the tree is responsible for any pruning costs in cutting the tree back to the boundary line.

If, however, your neighbour's tree branches have been causing damage to your property, you may take legal action against the owner of the tree. You should get legal advice from a private lawyer if you are in this situation.

What if I want to prune less than 10% of ​​​the tree?

You need to check with your Local Council before you cut back any overhanging branches from your neighbour's property. Although some Local Councils might allow you to cut back up to 10% of a tree, other councils will not let you cut back branches at all unless you get approval, particularly if the tree is covered by a Tree Preservation Order. 

Each Local Council has different requirements, so it is best to speak to them before taking any action. If you don't, you could be held responsible for any damage caused to the tree or face a penalty for not following the council's rules.

To find out how to contact your Local Council, see Find your Local Council on the Office of Local Government website.

What if my neighbour's tree roots​ are causing damage to my property?

If your neighbour's tree roots have caused damage to your property you should speak to your neighbour about your concerns to see if you can both agree on a solution.

If you need help negotiating with your neighbour, you can contact a Community Justice Centre for mediation.

You may be able to apply to the Land and Environment Court for a tree order, but you should get legal advice from a private lawyer about your situation. The Court will look at the likelihood of further damage in the ‘near future’ which is generally considered to be the next 12 months. 

If you have home building insurance, you could also speak to your insurer about any cover on your policy.

​Can I cut down ​trees on my property that are growing close to my house if I am concerned about bushfires?​

Yo​​u may be able to clear trees or vegetation on your property, without council approval, if you live in a 10/50 vegetation clearing entitlement area.

If the tree is on your neighbour's property, you can't cut it down without your neighbour's consent. If the vegetation on your neighbour's property is within 10 metres or 50 metres of your home, you can ask them to clear it. 

If your neighbour does agree to clear the tree or vegetation, they must check whether their property is in a clearing entitlement area.

You must still get approval to burn any vegetation.​

What​​ is a 10/50 vegetation clearing entitlement area?

If you live in an area close to the bush, there ​are certain areas that have been identified as 10/50 vegetation clearing entitlement areas. This means they may be affected by bushfires.

If you own a prop​erty in a 10/50 vegetation clearing entitlement area, you are allowed to:

• clear trees on your property that are within 10 metres of a home, without seeking approval
• clear underlying vegetation (other than trees) such as shrubs on your property within 50 metres of a home, without seeking approval.

You may only remove a tree if any part of the trunk that measures more than 30 centimetres around the trunk at a height of 1.3 metres above the ground, is within 10 metres of the external wall.

For more information and to check your property, see 10/50 vegetation clearing on the NSW Rural Fire Service website.

What if ​​my neighbour's tree is dropping leaves, flowers, seeds or fruit?

If your neighbour's tree is dropping leaves, flowers, seeds or fruit and this is causing a problem you should speak to your neighbour about your concerns to see if you can agree on a solution. If you need help negotiating with your neighbour, you can contact a Community Justice Centre for mediation.

Generally, the Land and Environment Court will not make an order about a tree that causes problems by dropping leaves, flowers, seeds or fruit. They will only make orders where a tree is causing or threatening to cause property damage or injury to people.

If damage is being caused by a tree dropping leaves, flowers, seeds or fruit you should get legal advice from a private lawyer.

What if the​​​ dropped leaves, flowers, seeds or fruit cause damage to my property?

If your neighbour's tree is dropping leaves, flowers, seeds or fruit and causing damage to your property, you should get legal advice. You may be able to claim compensation for the damage if your neighbour was negligent or has failed to take action that may have prevented the damage from occurring.

What if my​ neighbour's tree is causing damage to my property?

If your neighbour's tree is causing damage to your property, you should speak to them about your concerns. If you need help negotiating with your neighbour, you can contact a Community Justice Centre for mediation.

You may also be able to apply to the Land and Environment Court for a tree order if the tree:

• is located in a residential area, and
• has caused, is causing or may cause damage to your property.

The Land and Environment Court can order that the tree be cut back or removed, or that compensation be paid from one owner to another for the damage caused.

You should get legal advice from a private lawyer about your situation if you want to apply for a tree order in the Land and Environment Court.

If you have home building insurance, you could also speak to your insurer about any cover on your policy.

If you live in a property that is strata or company title, you should get legal advice from a private lawyer about your situation.

Do I have to pay​ for damage my tree has caused to my neighbour's property?

If there is no court order, you can negotiate with your neighbour about any costs for repairs, or compensation, for damage caused by a tree on your property.

If your neighbour takes action against you in the Land and Environment Court, they may ask the Court to make an order that you pay for the cost of any damage done to their property. It is up to the Court as to whether they make this order, and how much compensation they award. Your neighbour will usually have to show evidence of the damage and cost of repairs, for example, quotes to get the damage fixed.

If your neighbour is claiming compensation for damage caused by a tree on your property, you should get legal advice from a private lawyer.

A tree fell on my car. Who is responsible for the damage?

If your car is insured, you should contact your insurer and check your insurance policy. For more information, see Tree damage in a storm on the Insurance Law Service website. 

If your car isn’t insured, you may be able to make a claim on the owner of the tree. You will need supporting evidence to show that the owner of the tree knew about the condition of the tree and did not maintain it. You should get legal advice about your situation. 

What if my neighbour's tree h​​​as or will cause injuries?

If your neighbour's tree is at risk of causing injury you should speak to your neighbour about your concerns. If you need help negotiating with your neighbour, you can contact a Community Justice Centre for mediation.

You can also apply to the Land and Environment Court for a tree order if the tree:

• is located in a residential area, and
• has caused or may cause injury to people.

The Land and Environment Court can order that the tree be cut back or removed to prevent injuries to others.

If you want to apply for a tree order in the Land and Environment Court, you should get legal advice from a private lawyer about your situation.

What if my neighbour's hedge is blocking my views?

If your neighbour's hedge is blocking the views from your property you should speak to your neighbour about your concerns to see if you can agree on a solution. If you need help negotiating with your neighbour, you can contact a Community Justice Centre for mediation.

In some situations, you may be able to apply to the Land and Environment Court if:

• the hedge consists of two or more trees over 2.5 metres high (above ground level), and
• the trees are severely blocking a view from a dwelling (house) on your land.

In a case involving the removal of a hedge, the Court would balance the severity of the obstructed view against your neighbour’s need for privacy, wind protection, and other environmental factors such as wildlife habitat. 

Before applying to the Land and Environment Court for an order about your views being blocked by a hedge, you should get legal advice from a private lawyer.

What can I ​do about my neighbour's hedges block sunlight from my home?

If your neighbour's hedges are blocking sunlight from your home, you should speak to your neighbour about your concerns to see if you can agree on a solution. If you need help in negotiating with your neighbour, you can contact a Community Justice Centre for mediation.

In some situations, you may be able to apply to the Land and Environment Court if:

• the hedge consists of two or more trees over 2.5 metres high (above ground level), and
• the trees are severely blocking sunlight to a window of a dwelling (house) on your land.

In a case involving the removal of a hedge, the Court would balance the severity of the obstructed sunlight against your neighbour’s need for privacy, wind protection, and other environmental factors such as wildlife habitat.

Before applying to the Land and Environment Court, you should get legal advice from a private lawyer about your situation.

What is the process in the Land and Environment Court?

For a full guide see the Court’s Tree disputes - how to start an appeal process on the Land and Environment Court’s website:

1. check that you are eligible to lodge an appeal, this requires you to be an owner or occupier of land that adjoins the land on which the tree or hedge is situated
2. fill in the correct form
3. check and pay the correct fee under Class 2 of the court’s jurisdiction
4. file the application with a minimum of four copies of the application. You may lodge this –
   • in person - at the Court’s registry on Level 4, 225 Macquarie Street, Sydney, or any local court registry
   • by posting at least four copies and the filing fee to the court at GPO Box 3565, Sydney, NSW 2001
   • via email - treedisputefilings@justice.nsw.gov.au

Once filed, the preliminary hearing will usually be 4 to 6 weeks after the date of filing of the application.

1. serve the application – the applications must be filed at least 21 days before the preliminary hearing dates. This might include:
   • on your neighbour
   • on your local council
   • on the Heritage Council (if the tree relates to an Heritage Order)
   • on any other parties as directed by the court.
2. respondent appears – after being served, each person who wishes to participate will register to take part in the proceedings
3. prepare for preliminary hearing – see Tree disputes - preparing for preliminary hearing
4. attend preliminary hearing/first directions hearing – see Tree disputes – at the first directions hearing
5. attend final hearing – see Tree disputes – at the final hearing
6. orders are made – for more information see Orders and outcomes.

Do I have to negotiate with my ​neighbour before going to court?

If you want to apply to the Land and Environment Court for a tree order, the Court will want to know what attempts you and your neighbour have made to try and resolve the dispute. The Court can't make an order unless it is satisfied that you have made a reasonable effort to resolve the matter before applying for an order.

If you need help negotiating with your neighbour, you can contact a Community Justice Centre for mediation.

What if I can't afford​ the fee to apply to the Land and Environment Court?

If you can't afford the fee to apply to the Land and Environment Court, you can fill in a form called an Applicatio​n to Postpone, Waive or Remit Court Fees​. You will need to explain on the form why you can't afford the fee and include details of your income and expenses.

For more information and to get a copy of the form, see Fees on the Land and Environment Court website.

What happens if a ​​tree order is not complied with?

If you or your neighbour don't comply with an order made by the Land and Environment Court, you may have to pay a penalty of up to $110,000.

Your Local Council can also carry out the work, if they choose to, and recover the reasonable costs associated with such work. They can recover these costs from whoever was asked to do or pay for the work as specified in the Land and Environment Court order.

The Local Council can also register the order as a charge on land as this will help them to ensure they get paid for the work they have done.

If you or your neighbour have not complied with a tree order made by the Land and Environment Court, you should get legal advice from a private lawyer.

What if there is a Tree ​Preservation Order or Heritage Order over the problem tree?

If you have applied to the Land and Environment Court, the Local Council must be sent a copy of your application if the tree is covered by a Tree Preservation Order. The Heritage Council must also be sent a copy of your application if the tree is the subject of a Heritage Order. 

The relevant Local Council or Heritage Council may appear in any proceedings before the Land and Environment Court about the problem tree.

If this situation applies to you, you should get legal advice from a private lawyer.

What if the owner of the tree sells their property?

If the Land and Environment Court has made a tree order, this order will still apply to the new owner of the property. This means that the new owner will be required to carry out the work. The new owner must be given a copy of the order when they purchase the property.