When your neighbour’s overhanging tree is your problem

Rose Lawyers on 30 November 2017

When a neighbour extends an olive branch, it’s usually a sign of peace and harmony. But when the branch extends over your fence and casts a shadow over your fledgeling veggie patch, it’s a source of neighbourly annoyance.

Trees and plants tend to ignore the invisible lines that divide you with your neighbours. And when overhanging branches or encroaching roots start to become a big problem, they can start a dispute between neighbours.

Despite being a common source of tension between local residents, there are no specific State or local laws relating to disputes between neighbours about trees in Victoria. Disputes about trees are covered by common law – the law that has been developed by the Courts over time – as well as any local or Council rules.

So if a neighbour’s overhanging tree is a nuisance, it’s important to first understand the laws, regulations or Council local laws that may apply to your situation.

The first steps to take

Don’t grab the axe just yet. The first thing you will need to do is check whether the tree is protected or subject to an environmental overlay. You can contact your Council to find this out. If it is a protected tree or subject to an environmental overlay, you will need to obtain a permit from the Council to cut it back.

There can be heavy fines for the unauthorised removal, vandalism or destruction of significant or publicly-owned trees.

If there are is no environmental overlay, then the next step is to talk with your neighbour to resolve the issue. They may not even be aware that the tree is being a nuisance to you. Schedule a convenient time to have a face to face discussion with your neighbour about the issue.

Can you cut back your neighbour’s overhanging tree?

You have the right to trim or cut back any leaves, branches or roots overhanging the boundary line if the offending tree is not protected, or if you have obtained a permit from the Council.

This is the ‘right of abatement’, which means the reduction or removal of a nuisance. However, when trimming or cutting back, you must not cause unnecessary damage or kill the tree.

You are also entitled to return branches, leaves and roots to your neighbour, as technically they remain their property. Of course, it’s best to approach this with care and consideration by first letting your neighbour know about the waste.

Remember, you are not entitled to enter your neighbour’s property without their permission, even to trim or cut back branches that encroach on your property.

What happens if a neighbour’s tree falls on your property?

Another issue may be that the tree drops leaves, barks, sticks, flowers, fruit, seeds or sap as part of its normal lifecycle. Generally speaking, this is not usually considered a significant private nuisance.

However, sometimes large branches can fall and do damage to property, especially if the tree is in poor condition. If you believe that your neighbour’s tree is unsafe, you should ask your neighbour to have an arborist assess the tree’s health. This professional will assess the cultivation and management of the tree, shrub or plant, and choose whether to cut it back or remove it.

If the tree is found to be diseased or unstable, it must be removed. If your neighbour ignores the advice, they could be liable for injury or damages to your property.

What about Council trees?

Another issue may arise if the tree that is overhanging or has encroaching roots belongs to the Council.

As a property owner, you are still entitled to cut back or trim any part of the tree that encroaches on your property. However, the best thing would be to contact your Council who may send an arborist to assess and manage the tree.

neighbour tree support image

What else can I do about this issue?

There are cases where talking with your neighbour doesn’t resolve the issue. If you’ve taken reasonable steps to deal with the situation and it is serious, it’s possible to bring an action to the Court to force the neighbour to remove or cut back their overhanging tree.

This action is called a private nuisance. This means that another person’s act or omission substantially interferes with your use and enjoyment of your property. However, to be successful, you will need to show that the nuisance is significant and unreasonable.

In these cases, the Court will consider a number of issues, including:

  • The neighbourhood’s general environment.
  • How long the issue has been happening.
  • Whether the issue has been ongoing.
  • The impact on you and your property.
  • Whether the interference was there when you moved in.
  • What reasonable people would think of the interference.

The Court will also weigh up the inconvenience or impact of the interference on you against the cost and effect of having your neighbour modify or stop their activities. In this case, this would be the removal of branches or roots or the removal of the entire tree.

Note that going to Court can be an expensive, stressful and time-consuming option. Reaching an agreement between you and your neighbour privately will almost always be a better alternative.

Need more advice on serious neighbour disputes?

From trees, fences and noise, simple neighbourly issues can turn into big matters. When issues turn serious and other avenues have been exhausted, legal advice with a Melbourne expert may be the next step.

On your last limb? If you think you've exhausted your options, get a lawyer in Melbourne to review your neighbour dispute. Contact Rose Lawyers for a consultation.