Neighbour Disputes
25 February 2022 in Property Dispute Lawyers | 6 min read | skip to FAQsThis article discusses the neighbour disputes of trees and hedges, nuisance, trespass and boundaries. We look at the relevant legislation and the legal options to solve these disputes.
Types of Neighbour Disputes
Trees and Hedges as a source of Neighbour Disputes
Trees and hedges are a very common cause of disputes between neighbours. Neighbours can unfortunately sometimes use trees as a means of antagonising their neighbour. Common causes for tree and hedges disputes include circumstances where a neighbour’s tree or hedges:
- Obstruct a neighbours view or sunlight to a window of a dwelling or any view from a dwelling
- Causes property damage: or
- Threaten people’s safety.
The Trees (Disputes between Neighbours Act) 2006 (NSW) provides that where trees or hedges cause any of these problems, the effected neighbour may apply to the court for an order to have the trees trimmed or removed to remedy the obstruction. This has proved to be a very useful piece of legislation. The property dispute lawyers at BSM Sydney Lawyer have used this legal argument many times and have resolved the neighbour dispute with minimal cost to our clients. Prior to this Act, neighbourhood disputes relating to trees were resolved under common law principles of trespass, negligence and nuisance. They were previously more difficult and protracted.
Trees and Hedges
- In the first instance, it is useful for neighbours to engage in informal discussion. Sometimes informing a neighbour that there is legislation in place that protects the rights of neighbours is enough for the offending tree or hedge to be removed or trimmed.
- A formal letter from a property disputes lawyer is useful if the neighbour fails to comply with an informal discussion. This usually states the neighbour’s legal rights and obligations with reference to the legislation and provides a time limit for action regarding the tree or hedge.
- If this fails to resolve the dispute, the lawyer can engage in formal negotiation on your behalf with the neighbour and or their solicitor.
- If the dispute escalates, other forms of alternative dispute resolution such as mediation and conciliation can be attempted.
- The final course of action is to formally apply to the court for an order to have the trees or hedges trimmed or removed to remedy the obstruction, property damage or threat to people’s safety.
The lawyers at Brander Smith McKnight are highly experienced negotiators and advocates. We pride ourselves on settling the vast majority of neighbourhood disputes with either an inexpensive legal letter or through negotiation on your behalf.
Nuisance
Nuisance in relation to neighbourhood disputes refers to when there is an interference with the use and enjoyment of land. For example, a nuisance may occur where someone has caused persistent and excessive noise that impacts a neighbour. A claim of nuisance requires consideration of various factors and can be resolved either in or outside of court. Some legal remedies available in a nuisance claim include damages, abatement and injunctions.
Trespass
Trespass in the context of neighbourhood property disputes refers to the interference with another persons’ property without any legal justification. For example, trespass may occur where a person is using part of of a neighbour’s property as a thoroughfare. Some legal remedies that may be available in a trespass claim include damages and injunctions. In addition, there are various statutory penalties that apply when people trespass upon other people’s land.
Boundaries
Property disputes also arise between neighbours regarding boundaries between land. For example, a boundary dispute regarding the fencing between the properties of neighbours. Boundary disputes in NSW can be resolved in a variety of ways including making a boundary dispute application to the NSW Land Registry Services and by contacting the relevant local and state authorities. They can also be resolve through an alternative dispute resolution method such as negotiation, mediation and conciliation.
How can a Property Dispute Lawyer Help?
If you are involved in a property dispute with a neighbour, there are several ways that a property dispute lawyer can help:
Legal Advice for Neighbour Disputes
The experienced property dispute lawyers at BSM Sydney Lawyers can advise you of your legal rights and obligations, referencing the various pieces of legislation relevant to the dispute.
- Dividing Fences Act 1991 (NSW)
- Conveyancing Act 1919 (NSW)
- Real Property Act 1900 (NSW)
- Encroachment of Buildings Act 1992 (NSW)
- Inclosed Lands Protection Act 1901 (NSW)
- Access to Neighbouring Land Act 2000 (NSW)
- Trees (Disputes between Neighbours) Act 2006 (NSW)
Dispute Resolution Options to avoid Court for Neighbour Disputes
This can save you time, money and stress when resolving a neighbourhood property dispute. The experienced lawyers at Brander Smith McKnight will explain the available options, their respective advantages and disadvantages and advocate on your behalf.
- Informal Agreement. The simple method of directly contacting the neighbour can be an efficient way of resolving the dispute. This doesn’t require legal input.
- Contacting the Relevant Authorities. Disputes involving noise or rubbish can sometimes be resolved by contacting the relevant local council or police. This doesn’t require legal input. It may solve an immediate problem.
- Mediation. Mediation is an alternative dispute resolution option where an independent mediator helps disputing parties settle their dispute among themselves. This is done by the mediator facilitating discussion between the parties with the aim of achieving a mutually beneficial solution. Mediation is confidential and mediators do not take sides or make decision in relation to your dispute. It is not legally binding. Legal representatives may be used to help prepare and to represent the parties.
- Conciliation. This is another dispute resolution technique using an independent and impartial person called a conciliator. The conciliator can suggest options for resolving the dispute, provide relevant information and encourage the pursuit of an agreement. Your property dispute lawyer can help you prepare for and can represent you during conciliation. They can also explain alternatives if an agreement is not reached during conciliation.
- Arbitration. Arbitration is another alternative dispute resolution technique which allows disputing parties to have their dispute decided by an independent, neutral decision maker, called an arbitrator. In arbitration, the disputing parties put forward arguments and evidence that the arbitrator will assess and make a decision on. The process is private, subject to the parties’ agreement and can be confidential. It is the most formal alternative to litigation. The decision made by the arbitrator, called an award, is legally binding and enforceable. Your property disputes lawyer can help you prepare for and represent you during this process.
Litigation
Litigation is the process of resolving a dispute in court. During litigation, both parties to the dispute will argue their case before a judge or magistrate, usually represented by a lawyer. The magistrate (in the Local and District Courts) or judge (in the Supreme Court) will determine how to resolve the dispute based on the evidence and the arguments of both parties. The property dispute lawyers at Brander Smith McKnight law firm Sydney are expert litigators and will prepare your legal case and advocate effectively and persuasively for you in court.
How can BSM Sydney Lawyers assist you?
We have a very strong team of lawyers with over 30 years of experience in property disputes. We are proud to say that we resolve the vast majority of property disputes without the need for litigation, saving you time and money in legal fees. The property dispute lawyers at Brander Smith McKnight law firm Sydney are highly experienced negotiators and advocates. We pride ourselves on settling the vast majority of neighbourhood disputes with either an inexpensive legal letter or via negotiation. If litigation is required our lawyers have outstanding advocacy experience in all tribunals and courts, including NCAT and the Local, District and Supreme courts. The property dispute lawyers at BSM Sydney Lawyers offer a free 20-minute consultation to discuss your individual case.
FAQs
What is Abatement?
Abatement refers to the removal or reduction of the source of a property dispute. It is a simple remedy to common neighbourhood property disputes such as disputes relating to nuisance.
What is an Easement?
Easements are registered interests on land that grant specific rights to parties who do not own the land to use it for a particular purpose. A common example of an easement is where a landowner has the right to access their property through the use of a shared driveway. An easement may also exist where part of a person’s property is used commonly as a thoroughfare for pedestrians. A property and conveyancing lawyer can identify whether any easements exist in relation to a property and also help you dispute the existence of an easement. For more information, see our article on Easements.
What is a caveat?
In the context of property, it applies to where someone holds an interest in land and that interest can be documented and registered to be legally protected. Caveats apply to Torrens Title land.
What is the difference between public and private nuisance?
Private nuisance refers to unlawful and unreasonable interferences with another person’s land. Whereas public nuisance refers to an unlawful act that generally threatens the public’s life, health, property morals or comfort.
What is the Trees (Disputes between Neighbours) Act 2006 (NSW)?
This piece of legislation largely governs the resolution of disputes between neighbours relating to trees. For example, where trees damage a property, cause injury or obstruct a neighbour’s view. The property disputes lawyers at BSM Lawyer Sydney have extensive experience with this legislation as neighbours using trees or hedges to block their neighbour’s views or sunlight is unfortunately quite common. We have had a 100% success rate using this piece of legislation. In general, most offending neighbours agree to remove or trim the trees with a formal letter stating our client’s legislative rights. If this fails, negotiation by our experienced lawyers settles the matter.
BSM Lawyer Sydney has offices conveniently located in Sydney CBD, Sutherland, Parramatta, Shellharbour and Wollongong.
About the Author
Elizabeth DonoghueBachelor of Laws with First Class Honours I Bachelor of Business I Graduate Diploma of Legal Practice I Admitted to the Supreme Court of NSW & the High Court of Australia
View profileElizabeth holds a Bachelor of Business and a Bachelor of Laws with First Class Honours from the University of Wollongong. Elizabeth achieved outstanding results across both of her university degrees and was recognised with the Dean's Merit Award for academic excellence. She has a Graduate Diploma of Legal Practice from the College of Law and is admitted to practice as a legal practitioner in the Supreme Court of NSW and the High Court of Australia. Elizabeth works in construction and property dispute law. She is known for her passion for law, strong organisational and communication skills, meticulous attention to detail and proactive approach to her work. Elizabeth has extensive knowledge and experience of legislation relating to property disputes. She has worked on several matters that required practical application of the Dividing Fences Act and the Retaining Wall Act to resolve neighbour disputes.
