Tag Archives: neighbours

Common law and common sense about trees

Overhanging or invasive trees are a common cause of dispute in strata communities and otherwise. There are steps and measure you can take to avoid these disputes escalating out of control.

Read this week’s training note and Many thanks to TEYS lawyers for this article here are some tips on how not to go too far!
Each state and territory by now has its own legislation about tree disputes and if a dispute goes far enough, then these laws should be referenced. This note looks at the common law and some common sense on the topic.

  1. Tall tree near buildingThere are trees to avoid planting and places to avoid planting them. A rubber plant
    will find pipes and drains on the other side of the city if that’s how far it has to go
    for a drink. A by-law about what can be planted and where, is a good use of the
    by-law making powers of an owners corporation.
  2. You don’t need council approval to plant a tree but you might need approval to
    bring one down. Check for tree preservation orders in your local council before
    having a working bee with chainsaws at the ready. (Also check your insurance
    before letting the secretary rip with anything sharper than a pen).
  3. Local councils are responsible for trees on pavements, grass verges and nature
    strips, so don’t waste owners corporation money on these matters, exercise your
    right to complain to the authorities to get this work done.
  4. Branches and roots from a neighbour’s tree can be pruned and the material
    returned to the tree owner’s property, but again be careful of preservation orders
    before taking to the intruder. Also, it might be an idea to talk to the neighbour first
    before cutting down half the magnolia and hurling the cuttings into their pool.
  5. The common law of nuisance applies to physical land or buildings but does not
    include the right to sunlight or an unobstructed view. In some places, including
    Sydney, there is legislation about hedges blocking views so look for this if the Opera House is fading to green.

Thank you TEYS Lawyers.

Dividing Fences

Part 1 in Solving Neighbourhood Problems

With the exception of noise, dividing fences are the source of most neighbourhood disputes. State legislation covers the rules for working out who pays for the dividing fence and also what happens if there are disputes about where the boundary lies. These laws apply to owners corporations and bodies corporate.

Basic Principle

The Dividing Fences Act 1991 (NSW) 1 provides that adjoining owners are required to share equally the cost of a “sufficient dividing fence”. If there is a dispute about the standard of fencing, one neighbour must give the other a fencing notice and disputes are heard in the local court. Mediation by a community justice centre is likely to be cheaper and less stressful.

What is a “sufficient dividing fence”?

Fence of strata schemeIn deciding what is a sufficient dividing fence, the court will take into account the following:

  • The standard of the existing fence;
  • The purpose of the fence;
  • The way the land on either side of the fence is used;
  • The privacy or other concerns of each neighbour; and
  • The kind of dividing fence that is usual in the area.

The basic principles of this act are reflected in other state based dividing fences legislation including the Dividing Fences Act 1953 (QLD), Fences Act 1968 (VIC), Common Boundaries Act 1981 (ACT) – the main difference is the issue of crown liability for dividing fences.

Who Pays?

The general rule provides for neighbours to equally share the cost. However, if one neighbour wants a fence of a greater standard than a “sufficient dividing fence”, then that neighbour will have to pay for the additional cost involved.

Boundary Disputes

If there is a dispute about the boundary line, then the act provides for this to be determined by a registered surveyor.


Encroachments (where buildings cross the boundary) are covered by the Encroachment of Buildings Act 1922. These are complicated cases, which can involve applications to the Supreme Court.

Avoiding Disputes

To avoid disputes about fences and boundaries, an owners corporation or body corporate needs to act reasonably and should take care to keep notes and written correspondence about the essential elements of the fencing proposition. Certainly a
neighbour who goes ahead and constructs a fence without first consulting and coming to an agreement with the other neighbour, might not be able to recover half of the costs. The community justice centres in New South Wales provide an excellent service in providing assistance to parties without the necessity of involving lawyers.


Thank you to Teys lawyers for this article