When you have an issue with a neighbour’s tree or shrub, it’s important to:
- understand your rights and obligations under law in Victoria
- try to reach an agreement with your neighbours
- understand your options if you can’t agree with them.
Tree laws in Victoria – Your rights and obligations
In Victoria, trees are covered by general property law and ‘common law’, which is law the courts have developed over time.
This means that generally, a tree owner doesn’t have a legal obligation to maintain their tree unless it’s causing damage or nuisance. Trees can also be covered by council rules. Check with your council to see if the tree causing the problem is protected. Your council won’t help resolve a dispute or cut back your tree for you unless it’s on council land.
Cutting back trees that cross your boundary line
You have the right to cut back any branches, leaves, or roots that cross your property boundary line at your own cost. This is known as the ‘right of abatement’.
If you rent your home, contact your property manager if you have an issue with a neighbour’s tree. Acting without permission from your rental provider could be a breach of your rental agreement.
Before you cut back your neighbour’s tree you should:
- talk to your neighbour about the maintenance you want to do
- ask your local council if the tree is protected, as you may need a permit to cut it back
- get advice on how to cut back branches without harming the tree or shrub
- agree with your neighbour on how you will return their cuttings.
And remember:
- you’re liable for any damage you cause to your neighbour’s tree
- you need your neighbour’s consent before entering their land to perform maintenance.
Trees that block out light or views
In Victoria, there are no rules or regulations that can force a property owner not to plant big trees. This is something for neighbours to negotiate and agree on themselves.
If you can’t reach an agreement with your neighbour about managing a tree that blocks light or views, mediation might be a good idea. Mediation gives you and your neighbour an opportunity to speak with each other and come to an agreement about the maintenance of the tree.
If mediation isn’t an option or your neighbour does not want to mediate, you can consider going to court. We recommend getting independent legal advice first.
If a tree located on a nature strip or in a parkland is overhanging or causing damage to your property
Call your local council to check if the tree is protected. If it is protected, the council may send an arborist to look at the tree and decide on what to do next.
If the tree isn’t protected, you may cut back the parts of the tree that overhang your boundary line.
Paying for maintenance and damage caused by trees
Tree owners are not obliged to pay for tree maintenance but they may decide to do so to reduce risk of damage to someone else's property.
You can maintain branches that cross your boundary line but you need to do this at your own cost.
If you want your neighbour to pay for any tree maintenance, you’ll need to show it’s damaging your property or it’s found to be causing a ‘private nuisance’ at court.
Damage caused by overhanging branches, foliage and roots
If your neighbour’s tree has damaged your property, it is possible that your neighbour is liable for the damage.
It’s a good idea to see if the damage is covered by insurance. If not, try and negotiate an agreement with your neighbour. Going to court can be expensive and take a long time.
Gather as much information as possible so you can have an informed discussion with your neighbour. This could include:
- an arborist’s report showing that the tree caused the damage
- photos of the damage
- quotes for the costs of repairs, maintenance or removal.
Talking to your neighbour about a tree or shrub
The easiest and quickest way to solve a tree dispute is by having an informal chat with your neighbour about the problem. The best outcome would be to agree on a maintenance plan together.
If you don’t know your neighbour well, try putting a note in their letterbox first to start the conversation. Introduce yourself and ask if you can arrange a time to talk to them about your issue.
In the conversation it’s important to:
- be clear about your concerns
- listen to and acknowledge your neighbour's point of view
- share any relevant quotes or reports you have requested from an arborist. This will help to give you an idea of maintenance costs to discuss
- stay calm, even if you think your neighbour is being unreasonable.
Ask yourself:
- ‘Do I have a good understanding of what’s important to them?’
- ‘Have I been clear about what’s important to me?’
- ‘Have I listened to them and tried to come up with a solution?’
- ‘What am I willing to negotiate over?’
- ‘Is there a different way to resolve this?’
If you and your neighbour still can’t agree, you can take it to your local Magistrates’ Court (External link). A magistrate will decide:
- whether the tree issue is a private nuisance
- who contributes what to the costs.
A private nuisance can only be decided at court
A private nuisance is when your use and enjoyment of your land is affected by another person’s act or omission.
You need to apply to court for a private nuisance claim, so get legal advice first.
If you do proceed, you need to show the nuisance is significant and unreasonable.
When deciding on your matter the court will consider:
- your neighbourhood’s general environment
- where the interference took, or is taking place
- what’s causing it
- how long it’s been happening and if it’s ongoing
- the impact on you
- if the interference was there when you moved in
- how useful or necessary the activity causing the interference is
- what reasonable people would think of the interference.
Keep in mind that trees drop leaves, bark, sticks, flowers, fruit and sap as part of their normal life cycle. This isn’t usually considered a private nuisance. The court will use common sense to inform their decision.
It’s important to recognise that living in a neighbourhood means that at times there will be competing interests or activities from people nearby. The court takes a pragmatic look at these and recognises that some noise, annoyance, inconvenience and discomfort are likely to occur wherever people live.
The Magistrate’s role is to decide on the points of law about your tree issue only. Because the Magistrate may not address everything that’s important to you, you might not end up with the outcome that you want. This is why you’re much better off finding a solution with your neighbour.
To find out more
For independent legal advice talk to the Federation of Community Legal Centres (External link) or the Law Institute of Victoria (External link)
