My neightbour’s trees are dropping leaves all over our lawn. What can we do about it?

I live next to neighbours who have a lot of trees on our common border.

Unfortunately, these trees overhang onto our side of the fence and drop an enormous amount of leaves.

What are my rights?

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    This is one of the most common problems between neighbours and often the source of a  lot of frustration.

    At common law, you are quite entitled to trim back the branches of the trees that are encroaching on your property and throw the branches back over the fence for your neighbour to deal with.

    However, you should be mindful of the fact that in some states of Australia , whether or not you are able to prune the branches back to the boundary or to sever the roots at the boundary, and under what conditions,  might depend on whether or not your local council has a Tree Preservation Order (TPO).

    If you are considering pruning branches or severing roots of a tree growing on your neighbour’s property, the first (and essential) step is to enquire whether your local council has a TPO. If your council does have a TPO, you need to find out its terms and whether any application needs to be made to the council for the branch pruning or root severing you wish to carry out.

    TPOs vary from council to council and may:

    require you to have the permission of the owner of the property where the tree is located before the council will give you permission to prune branches or sever roots;
    limit the extent of pruning that would be permitted as a proportion of the overall canopy of the tree; or
    require an arborist’s report concerning the stability of the tree if roots were to be severed.
    Note: these are just examples of the types of requirements that a council may have and are certainly not an exhaustive list.

    In many instances, councils will have a copy of their TPO available on their website and many councils also have explanatory material concerning tree management and about applications made under their TPO.

    Although it is possible that you may have residual rights at common law to undertake branch pruning or root severing where the tree intrudes into your property, in urban areas such rights have been severely constrained or eliminated by TPOs. So, it would be sensible to discuss your proposed activity with your council’s tree management officer and to consider whether you should seek professional legal advice before interfering with any branches or roots of your neighbour’s tree.

    Some trees are regarded as pest species and the TPO of a particular council may not apply to them. Trees that are exempted from the provisions of a TPO will be listed in the TPO.

    Even if a tree is not covered by a TPO because either the council does not have a TPO or the particular type of tree is exempt from the tree preservation order, before undertaking any branch pruning or root severing, it would be prudent to discuss your proposed activity with your council’s tree management officer. This is particularly important if you propose to cut any large roots of a tree as this may affect the tree’s stability and thus its safety. If extensive pruning is required it is a good idea to get it done by a professional arborist with appropriate WorkCover insurances.

    Legal Eagle Answered on 10 September 2015.
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