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Until the introduction of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) on 2 February 2007 all disputes concerning trees unable to be resolved by the relevant parties and the local government authority would be adjudicated in the Local Court. Prior to the introduction of the Trees Act, if a party wished to prune, lop or remove a tree the usual procedure would be to make an application to the local council. Most councils incorporated into their planning instruments (usually called local environmental plans) the relevant Councils Tree Preservation Order (TPO). If council approved an application there was usually a provision requiring the applicant to obtain the neighbour’s consent to carry out the relevant work on the tree. If the neighbour refused consent there was little one could do to lawfully enforce the consent.
With the introduction of the Trees Act, a person has the option to approach the council seeking orders under the council’s TPO. If a Council refuses the application or the neighbours are unco-operative, a party may approach the Land & Environment Court pursuant to the Trees Act to commence proceedings. It is becoming a common feature for applicants to have such matters resolved in the L&E Court, because a council’s decision relating to work to be carried out on a tree can often be ambiguous, time delaying and not fully determinative, whereas, an application in the L&E Court will bring the dispute to a final resolution, one way or another. All tree applications are notified to the local Council, thus providing them the opportunity to be heard.
The Trees Act applies to trees, as defined in the Act, on all land except Crown lands. So, if a tree located on Council land is perceived to be a problem, the L&E Court does not have jurisdiction to deal with that particular tree.
The procedure adopted by the L&E Court is simple, cost effective and determinative. Lawyers are the exception to the rule in appearing at court. The court has recognized, as an administrative function, filing fees should be kept low, consequently the fee is similar to that of the local court.
The conduct of proceedings in the L&E Court is informal. In fact, the court has developed a set of Standard Directions to promote the efficient and cheap resolution of the proceedings, and the Directions are easily understood. An expert arborist report is usually obtained to substantiate a party’s case. Other documentary evidence such as photographs, additional statements and evidence of an “injury” in the form of an allergy or similar medical condition must be filed in the court and served on the respondent.
As a general rule, all tree applications are heard by a Commissioner who is, more often than not, assisted by an Assistant Commissioner. The Assistant Commissioners are experts in their field e.g. arborists, horticulturists and the like. Many are drawn from tertiary institutions where they teach horticulture and the like.
In summary, the Trees Act now provides a ready, effective and relatively cheap resolution, to tree problems. In addition, the L&E Court utilizes its specialist knowledge to resolve tree disputes between neighbours.
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