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Tree on property boundary
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chesswood
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10/02/2017 - 9:32 pm
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A tree is causing damage to the back yard of my Sydney townhouse. By my geometry, 5% of the base of the tree is in our common property. 95% is in common property of the gated townhouses we back on to. When the dividing fence was built, the fencers cut the corner (presumably under instructions), isolating the troublesome tree on our side of the fence. 

Since late 2015, we've been trying to get the gated lot do something about the tree, namely get Council permission, cut it down, and grind out the damaging roots. The job won't be easy - there are power cables buried close to the tree and there's the adjacent fence to be considered.

They ignore all our letters/emails/phonecalls and all requests from Community Justice for mediation. Perhaps they think that trees beyond the fence aren't their concern.

What can I do to get some action? NCAT?

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Lady Penelope
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11/02/2017 - 10:28 am
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If the neighbouring OC is refusing to deal with your OC then perhaps your OC should consider taking independent action. See here for a detailed list of options and processes to go through: 

http://www.legalanswers.sl.nsw.....trees.html

NCAT may not be the most appropriate path for you to take. An extract from the above link states: The Trees (Disputes Between Neighbours) Act 2006, called the ‘Trees Act’, provides a much cheaper and simpler method for resolving some of the tree disputes between neighbours than the legal remedy that was previously available.

A Court Order from the Land and Environment Court may be required. The steps to achieving that Order are contained within the above link and also the Land and Environment link here: 

http://www.lec.justice.nsw.gov....._what.aspx

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Digby
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11/02/2017 - 1:41 pm
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Hi, 

If the tree falls and damages their property it could be a blessing for you. It is a costly process civil procedures to resolve some matters which may seem normal.

Assuming you have evidence of tree damage on your property for example entering waste drains,  effecting the structural foundations of your building, garden or foot path & fallen branchs

Endangered species, most councils would not approve of the removal unless you can prove the above.  

Keep copy of all communication to there OC.  Arranging discussion is one thing, how they react is another. 

Good Luck. 

Digby 

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chesswood
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11/02/2017 - 11:46 pm
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Proudsceptic's reply displays some knowledge of the law but s/he hasn't indicated how I'm supposed to get the neighbour to do anything. The strata manager (a good-sized company) has apparently been told to ignore anything from us about the tree. We don't have any of the committee phone numbers. I can write to the secretary of the OC at their street address. Or I can climb over the locked gate and go door-knocking. Any other suggestions?

As for the Trees (neighbourhood disputes) Act, it doesn't say anything about how to prove whose land the tree is on so presumably I'll need to hire a surveyor. The thousand or so that would cost would be a good start to the cost of cutting the tree down.

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Lady Penelope
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12/02/2017 - 12:00 pm
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chesswood - From my reading of the Act and my reading of the process you may not need a surveyor.

If you are confident of your claim that the tree is on the boundary and that the fence has been built around the tree and you provide photographs of the tree and the fence, plans of your Lot, etc then that will possibly be enough for your OC to bring a claim against your neighbour. During the Court deliberation process you will probably get a site visit to confirm the location of the tree and the boundary.

If your OC has done everything that it can to mediate this issue with no satisfactory result then you don't need to contact your neighbours again. Your OC does not need anything else from your neighbour to bring a claim against your neighbour in the Court - their refusal to deal with you is sufficient to prove that they are being unreasonable and unresponsive. The mediated outcome has clearly not worked so another course of action is needed.

Just go straight to the Dispute Resolution offered by the Land and Environment Court using the information that I have outlined in my previous comment. Include as much information as you can to back up your claim including: photos;  original survey plans of the Lot; timelines of actions taken including letters sent etc. Your strata manager may be able to assist. You may need to obtain the original plans from Council if your OC does not have them on record.

If the neighbours are to bear all or some of the cost of the tree removal then the Courts will make an Order to that effect. That should be the end of the matter.

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chesswood
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22/08/2017 - 9:09 am
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Things have moved on. We commissioned a boundary survey which disclosed that  the boundary cuts right through the middle of the tree. After a struggle with long-forgotten geometry and calculus, the tree's ownership at ground level is as follows: Gated Lot's OC 50%. Our OC 20%. Me 30%. Section 4 of the Trees (Neighbourhood Disputes) Act 2006 gives jurisdiction to the Land & Environment Court if the tree is based wholly or substantially on adjoining land. There's good case law for "adjoining" but the sticky bit is that Gated Lot's share is only 50% which isn't quite enough. I'll need to convince the court that I can aggregate the 50% and the 20% to make the tree substantially on adjoining land, i.e. on two pieces of adjoining land. Helpful staff at the court registry referred me to Brown and Anor. vs. Weaver 2007 LEC 238 but I can't find it on their website. It apparently discusses the meaning of "substantially".

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scotlandx
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22/08/2017 - 1:13 pm
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Here is a link to Brown & anor v Weaver (2007)

https://www.caselaw.nsw.gov.au/decision/549f8fcf3004262463aea04c

And here is a list of cases on the LEC website where tree removal was ordered.

http://www.lec.justice.nsw.gov.....roved.aspx

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