Tree branches overhanging Neighbour land

Discussion in 'Legal Issues' started by iwantahouse, 15th Jun, 2021.

Join Australia's most dynamic and respected property investment community
  1. iwantahouse

    iwantahouse Well-Known Member

    Joined:
    19th May, 2019
    Posts:
    142
    Location:
    Adelaide
    Hi guys,

    I have a big gum tree in my backyard that I love (I'm serious!)

    My neighbour at the back of my property has been telling me to trim the branches overhanging his side and my response has always been to let him to access my property and trim the branches himself.

    I received a letter from him last week claiming that a branch damaged his gutter in one of his sheds and sent me a quote for repairs.

    I have asked my insurance company and the Legal services commission of South Australia and they both said that it is not my duty to trim overhanging branches. Legal services said that the neighbour can choose to exercise the right to abatement and cut or hire somebody to cut the branches.

    Somehow I'm still not 100% convinced and I feel I need more reassurance...

    I would like to agree on a solution with the neighbour but I didn't like the way he approached us, so we are not that interested in an agreed solution.

    Tree is healthy and I honestly like it, I also like the lorikeets that come and visit daily.

    Pic of the culprit, in red the branch overhanging:

    [​IMG]
     
  2. boganfromlogan

    boganfromlogan Well-Known Member

    Joined:
    10th Jan, 2017
    Posts:
    3,332
    Location:
    Brisbane
    Nice tree. As gums are known to drop branches it would make sense to reduce risk to neighbour.

    So maybe try to get that outcome?

    Neighbours can easily do something to a tree. So one that is trimmed is better than one under threat by neighbor.
     
    iwantahouse likes this.
  3. Paul@PAS

    Paul@PAS Tax, Accounting + SMSF + All things Property Tax Business Plus Member

    Joined:
    18th Jun, 2015
    Posts:
    23,319
    Location:
    Sydney
    Thats not a overhanging limb from how I see it. What a few leaves ? A few twigs ? What a manbaby. He is a tree hater and will only be happy if its a stump. Its looks healthy. And the branches arent heavy old wood.

    Neigbour will struggle to have the common law of nuisance applied to that tree. Dont allow them access as they can sue if they are injured. Nothing to do with your insurance company until it hits your house. He can claim any damage on HIS insurance as storm damage perhaps. Check if he has council approval for his shed ? - He will go quiet.

    Under SA law maintenance pruning of less than 30% of a tree crown is not controlled where the pruning is required to remove dead or diseased wood, or to remove branches that pose a risk to buildings or areas frequently used by people. Refer to Australian Standard 4373-1996 'Pruning of Amenity Trees'.
    Is a shed a building ?
     
    Last edited: 15th Jun, 2021
    Joynz, Stoffo and iwantahouse like this.
  4. Firefly99

    Firefly99 Well-Known Member

    Joined:
    24th Jul, 2020
    Posts:
    1,727
    Location:
    Qld
    No useful advice but that’s a very nice tree.
     
    Tillie, Joynz, Shazz@ and 1 other person like this.
  5. iwantahouse

    iwantahouse Well-Known Member

    Joined:
    19th May, 2019
    Posts:
    142
    Location:
    Adelaide
    Thanks bogan, I would try to negotiate, thing is that we didn't like his approach. The day we got the keys after settlement he was on top of his shed blowing and just asked us to trim the tree, bragging about he living all his life there and knowing the tree. Big difference with our next door neighbour which came to us to say hello and congratulate us. I actually cut a tree that was on top of my neighbour's carport from my side without him asking me to do it.


    Thanks Paul, the branch in question is actually trespassing the fence line, and now after what you wrote, I went to recheck it is only trespassing on top of the shed that is on the fence line. I always thought that shed looked suspicious, it has like a chimney and a whirlwind on top. His house not only has a shed along the my back and my neighbour's back fence but also full shed along his side of the house which is the fence to the back fence of 3 houses!

    I wasn't planning on giving him access to my property, just a hired arborist from his side to to he job if he wanted to.

    This is one of the sheds in question at the back..... and look a the properties on his side....

    [​IMG]
     
  6. Stoffo

    Stoffo Well-Known Member

    Joined:
    14th Jul, 2016
    Posts:
    5,301
    Location:
    In the Tweed
    Tell him he is entitled to trim back the tree to his boundary in line with council guidelines :p
    That means not trimming more than allowed (unbalancing the tree) and makes him responsible for disposal of trimmings.
    He just sounds like a sooky nancy boy who doesn't like the few leaf falling on his side o_O
     
    iwantahouse and Joynz like this.
  7. Paul@PAS

    Paul@PAS Tax, Accounting + SMSF + All things Property Tax Business Plus Member

    Joined:
    18th Jun, 2015
    Posts:
    23,319
    Location:
    Sydney
    A tree cant trespass. A branch can overhang a property boundary. If its not a nuisance perhaps he is. I would give him zero pemissions as you are liable for illegal pruning and trimming not him.

    I would offer him a challenge ...Start with "I was considering application to council to prune what from the ground seems very light healthy limbs that pose no hazard (their rules) but they wanted information about any neigbouring buildings or structures adjacent to the tree that could pose a hazard . They said something about checking their building approvals against this."...You may never hear from him again. His shed appears to encoach a boundary (zero setback) and exceed height limits.
     
    iwantahouse likes this.
  8. Lacrim

    Lacrim Well-Known Member

    Joined:
    25th Jul, 2015
    Posts:
    6,175
    Location:
    Australia
    Whatever the outcome, I wouldn't like a tree that size overhanging my property.

    Towering gumtrees and the like that shed litter all year long don't belong in small suburban blocks. I love trees but there are certain species that are appropriate (in a space like that) and ones that aren't.

    A Tuckeroo or Magnolia would have been more suitable in that spot for all concerned. But each to their own.
     
    craigc, Heinz57 and iwantahouse like this.
  9. iwantahouse

    iwantahouse Well-Known Member

    Joined:
    19th May, 2019
    Posts:
    142
    Location:
    Adelaide
    I agree with you Lacrim, we also like trees and we are aware that they don't belong in suburban blocks. The tree was already there when we bought the house and after 18 months living here and they shed litter like crazy but at the same time we enjoy the wildlife it brings to our property. So in some way we have started to appreciate it more than when we moved.
     
  10. Stoffo

    Stoffo Well-Known Member

    Joined:
    14th Jul, 2016
    Posts:
    5,301
    Location:
    In the Tweed
    I wouldn't call the OP's block small, but do agree.

    Many councils won't allow you to remove established tree's when subdividing or applying to build either, sometimes you have to work around these things.

    Gumtree's are everywhere around me, when left with no choice but to remove some of the dangerous or dead one's the council recommended replacements often grow to 75-100+ft :eek:
    I have gone on to replace them with various grafted gums with a growth height of 6-10 meters ;), still plenty of birds, bugs, shade (lemon scented is my favorite :D).
     
    iwantahouse likes this.
  11. iwantahouse

    iwantahouse Well-Known Member

    Joined:
    19th May, 2019
    Posts:
    142
    Location:
    Adelaide
    Interesting, I didn't know you could propose to council to replace it for gumtrees not that tall like the one I have. When you replaced them, where did you go to buy the replacements? Nursery? How tall were they when you got them?

    No that I'm thinking on doing this now, but who knows in the future.
     
  12. Stoffo

    Stoffo Well-Known Member

    Joined:
    14th Jul, 2016
    Posts:
    5,301
    Location:
    In the Tweed
    I actually obtained the label for their preferred tree and put it on the tree I planted (I planted several) so if/when they checked they might think the tree was tagged correctly, as a 2ft tall gum they all look similar :D
     
  13. iwantahouse

    iwantahouse Well-Known Member

    Joined:
    19th May, 2019
    Posts:
    142
    Location:
    Adelaide
    Well this is an update of the situation with our back neighbour:

    I followed @Paul@PFI suggestion to mention about the council checking for illegal structures and that I wasn't planning on pruning the tree anytime soon.

    He just replied to me that his insurance was going to cover the damages. It seems he didn't make the claim as he has been doing the work himself.....
     
    wylie likes this.