From peeping Toms to overgrown trees: At war with the neighbours!

Following on from my article about dividing fences, this week I’ve decided to look into some other issues that shoot up, hang over your fence, and watch you from afar. I’m talking about neighbours, and no, I don’t mean Karl and Susan from Ramsay Street. They’re your best friends, your go to afterhours general store, or they’re a real thorn in your side (no pun intended). But what are the options when your neighbour sets up surveillance or when the twenty-foot eucalyptus has limbs stretching into your yard and dropping leaves in your gutters?

Let’s start with the easy one.

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‍What can you do about peeping Tom next door recording you in the shower?

‍Simple. Buy curtains. Unfortunately, there is a real gap in the law which governs neighbours or property owners from setting up surveillance. In 2015 there was a Parliamentary Inquiry which discussed a number of privacy issues, including the serious invasion of privacy between neighbours, but nothing ever eventuated on this issue. Whilst there are some legislative protections in place such as the Workplace Surveillance Act 2005 (NSW) and the Surveillance Devices Act 2007 (NSW), these aim towards surveillance in the workplace and covert operations in law enforcement amongst other things. But apart from that, recourse from your neighbour is limited to the following:

1. Seek an injunction to restrain your neighbour through a civil claim of “private nuisance” (although this can be a timely and costly process and you would need to prove that the neighbour knew about the nuisance, knew that it was interfering with your use and enjoyment of your property, and did not take reasonable steps to prevent it).
2. Seek an Apprehended Violence Order (although the individual would need to prove that they have reasonable grounds to fear of personal violence, intimidation or stalking by their neighbours which is sufficient to warrant the making of the order-which in most cases is highly unlikely).

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‍Now what about the over-hanging branches? There are a few potential avenues available for you. There is a handy piece of legislation conveniently known as the Trees (Disputes Between Neighbours) Act 2006. The Act sets out a clear process on how to seek a resolution from the Land and Environment Court. But before you consider embarking down this forestry of paperwork and applications, have a think about some of these options:

1. Talk to your neighbour – not all neighbours are tyrants. Have a chat to them and see if you can work out a sensible and cost-effective solution.
2. Mediation – There are Community Justice Centres which will facilitate mediation between you and your neighbour and help you achieve an outcome for both of you. They are free, informal and with a 74% success rate.
3. Abatement – This is the act of reducing a nuisance, or in this case pruning the neighbours overhanging branches yourself. Before you proceed, keep in mind the following:

• The neighbour is not obliged to contribute to the costs;
• The neighbour is the legal owner of the tree; and
• You may be liable for damages if the tree is damaged in the process.

‍WARNING: Before you remove or prune any tree you need to check with your Local Council as to whether or not a permit is required to carry out the work. In some cases, a development application may also be needed. There are some exemptions where neither is required, but you need to contact your Local Council for further information about these exemptions.

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‍Land and Environment Court (LEC):

‍Before heading off to the LEC, make sure you are clear about what it is your applying for and for what purposes:

1. Court orders relating to trees that cause or are likely to cause damage or injury; or
2. Court orders relating to high hedges that obstruct sunlight or views.

The Act makes it very clear that the LEC must be satisfied that an order is needed for one of the two purposes mentioned above and not just because you don’t like your neighbours twenty-foot eucalyptus.

There is also a criteria and other matters the LEC takes into consideration including:

• Any contribution of the trees to the local ecosystem and biodiversity.
• Any impact of the trees on soil stability, the water table or other natural features of the land or locality concerned.
• Whether the trees lose their leaves during certain times of the year and the portion of the year that the trees have less or no leaves.
• Whether the trees have any historical, cultural, social or scientific value.
• Any contribution of the trees to the natural landscape and scenic value of the land on which they are situated or the locality concerned.

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Lastly, I will leave you with this interesting comment from the Commissioners in the case of Barker v Kyriakides [2007] NSWLEC 292: “the dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree” – basically, clean up your neighbour’s mess!

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This is general advice only and please consult your legal professional before taking an axe to your neighbour’s trees (or your neighbour).

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Image by Екатерина Гусева from Pixabay