Frequently Asked Questions: Trees

Generally, you can cut it back whenever you want unless it’s protected by an environmental overlay. Your local council can tell you if it is and if so, you’ll need a permit.

Firstly, check with your local council, to see whether the tree is protected or subject to an environmental overlay. If it is, you need a permit to cut it back. If it’s not protected, or you have a permit, you can cut back any leaves, branches or roots overhanging the boundary line. This is known as the right of abatement, and is done at your cost, unless otherwise agreed. Unless you agree otherwise, you must return the branches & leaves to your neighbour as they remain their property.

It’s best to engage your neighbour along the way. Take the opportunity to explain the laws. Tell them your plans and where you’ll put the cut branches. This should hopefully prevent disagreements down the track and may even give you a better result in the long run.

Yes, and you may find they’re perfectly happy to share the costs. They may even be able to propose a solution that saves you both time and money.

Not unless you bring about an action of private nuisance (External link), which means that someone’s act or omission substantially interferes with your use and enjoyment of your property. 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.

Using common sense, the court will also weigh the inconvenience or impact of the interference on you against the cost and effect of having your neighbour modify or stop their activities.

It’s important to recognise that living in a neighbourhood means that occasionally there will be competing interests or activities from people nearby. The court takes a pragmatic look at these, recognising that some noise, annoyance, inconvenience and discomfort are likely to occur wherever people live.

Trees in Victoria are only covered under general property and common law. The courts have shown reluctance to create new obligations for tree owners as this would substantially change the existing rules we have in Victoria.

It’s likely your neighbour is liable for the damages. Refer to the Fences Act[1] for the general obligations on people to pay for damaging a boundary fence. Other damage like roots cracking pipes, foundations or pathways is usually covered under property law.

It’s always going to be better to try to negotiate a solution first. Going to court is very expensive and can take a long time, so reaching a private agreement will avoid a lot of hassle. 

It’s a good idea to get together 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
• a quote for the costs of removal or repair.

Remember, if you were to attempt mediation or if you decided to go to court, you’d need most or all of this anyway. Plus, it’s not unreasonable for the other party to want it.

Common sense and court law acknowledge that trees drop leaves, bark, sticks, flowers, fruit and sap as part of their normal life cycle and that this doesn’t justify excessive tree pruning or removal. In other words, this isn’t usually considered a private nuisance.

In this instance, have a chat with your neighbour about whether they’d be willing to work with you to maintain the tree, or cut back any part of it that encroaches on your property yourself.

In Victoria, there are no specific rules or regulations that can force a property owner not to plant big trees and this is usually something for neighbours to negotiate and agree upon themselves. If you’re still not happy and are considering bringing a private nuisance (External link) action, you’d be best to get independent legal advice first.

Call your local council to check if the tree is protected. If the tree is protected, the council may send an arborist to look at the tree and make a decision on what to do next.