Tree and hedge disputes
The Court has jurisdiction, in Class 2, to resolve applications under the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act).
Practice and procedure
The Court has published a formal document that sets out the process and requirements for applications under the Trees Act. This is called the Practice Note – Class 2 Tree Applications (PDF , 245.3 KB). The Practice Note explains the steps that need to be undertaken before the preliminary hearing, at the preliminary hearing, before and at the final hearing, and the evidence that might be given at the final hearing.
The Court has also produced informal notes on the Trees Act which provide further information on preparing for and conducting the preliminary and the final hearings: see Trees disputes — understanding the law (DOC , 1004.0 KB).
Process for tree and hedge disputes
The process for dealing with disputes about trees and hedges in the NSW Land and Environment Court
Neighbours who disagree about how to deal with a tree that has become dangerous or damaging on one of their adjoining properties, or a hedge on one of their adjoining properties that is obstructing sunlight, may apply to the NSW Land and Environment Court for orders. These type of applications to the Court are allowed by the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act).
The Trees Act sets out a process to enable people to deal with disputes like these in a simple, inexpensive and accessible way. It also sets out:
- the definition of a tree or a hedge (for the purposes of the Trees Act)
- when an application can be made
- the matters the Court must consider
- the orders that the Court can make.
Tree disputes can be brought to the Court when:
- there is a dispute between neighbours about a tree on one of their properties
- the Trees Act applies to the tree concerned (that is, it meets the definition of a tree in s 3 of the Trees Act)
- the tree is on privately owned land in an urban zone to which the Trees Act applies (see s 4 of the Trees Act)
- the tree is on land adjoining the land of the neighbor who is affected by the tree
- the tree has caused, is causing or is likely in the near future to cause damage to the affected neighbour’s property, or be likely to cause injury to any person (see s 7 as well as s 3 and s 10 of Trees Act)
- the affected neighbour has a right to apply to the Court (according to the Trees Act — see Who can make an application for orders?).
Hedge disputes can be brought to the Court when:
- there is a dispute between neighbours about a hedge on one of their properties
- the Trees Act applies to the hedge concerned (that is, it meets the definition of a hedge in s 14A of the Trees Act)
- the hedge is on privately owned land in an urban zone to which the Trees Act applies (see s 4 and s 14A(2) of the Trees Act)
- the hedge is on land adjoining the land of the neighbor who is affected by the tree
- the hedge is severely obstructing sunlight to a window of a dwelling situated on the affected neighbour’s land or severely obstructing a view from the dwelling situated on the affected neighbour’s land (see s 14B as well as s 3, s 14 and s 14E of the Trees Act)
- the affected neighbour has a right to apply (according to the rules set out — see Who can make an application for orders?).
The Trees Act specifies who can apply to the Court for orders in relation to a tree and a hedge on adjoining land. For a tree dispute or a hedge dispute, the person making the application must be an owner or occupier of land that adjoins the land on which the tree or hedge is situated (see s 3, s 7 and s 14 B of the Trees Act).
There is no statutory time limit in the Trees Act within which applications under the Trees Act need to be made.
However, an application must be made at the right time to show the Court that the tree or hedge has become dangerous or is damaging or is an obstruction.
For example, trees must grow to the specified height of 2.5m in order to be a hedge under the Trees Act and those trees must cause a severe obstruction to sunlight to a window of or views from a dwelling on the applicant’s land.
An applicant may need to wait until such time that these criteria are met, in order for the application to be proper. There is a general time limit for making claims for compensation for damage to property under the Limitations Act 1969. This is six years from the date the cause of action first accrues to the applicant.
For links to useful Court information and documents, legislation and case studies relating to development appeals, see: Helpful materials.