Trees (Disputes Between Neighbours) Bill
The Hon. HENRY TSANG (Parliamentary Secretary) [10.00 p.m.], on behalf of the Hon. John Della Bosca: I move:
That this bill be now read a second time.
I seek leave to have my second reading speech incorporated in Hansard.
The Trees (Disputes Between Neighbours) Bill 2006 is designed to provide a simple, inexpensive and accessible process for the resolution of disputes about trees between neighbours.
The bill establishes a separate statutory scheme giving the Land and Environment Court jurisdiction to make orders to remedy, restrain or prevent damage to property or prevent injury to any person as a result of a tree on adjoining land.
Honourable members may be aware that there is some background to this matter. The issue of disputes about trees in the urban environment was originally considered by the New South Wales Law Reform Commission in its report entitled "Neighbour and Neighbour Relations", Report No. 88, published in 1998.
The Law Reform Commission's report concluded that the common law of nuisance and abatement, which currently governs disputes between private parties about trees, does not provide an adequate dispute resolution process for people living in closely settled communities.
The bill draws upon the work undertaken by the Law Reform Commission, but adopts a different approach to that contained in a number of the commission's recommendations. The proposed legislation also reflects changes to the planning laws and other legislation that have occurred since the publication of the commission's report.
An exposure draft of the bill was released earlier this year for public comment and a number of changes have been made to the bill as a result of submissions received during this process.
I will now outline the principal provisions of the bill.
The proposed legislation limits the application of the common law of nuisance. An application for an order where a tree on adjoining land is causing damage or poses a danger may only be brought in the Land and Environment Court.
As an award of compensation may be ordered under the legislation, the appropriate jurisdiction for matters under the legislation is a court.
The Land and Environment Court, which is a specialist environmental jurisdiction, is the most appropriate forum for such disputes. The court's judges and commissioners have extensive experience with trees and vegetation and are regularly required to address provisions of legislation covering native vegetation, national parks and wildlife as well considering local planning instruments.
Commissioners of the Court hold relevant qualifications and experience. The court has recently advertised for acting commissioners with qualifications in arboriculture, ecology, heritage and engineering, all of which may be relevant to a dispute involving a tree.
When dealing with applications under the proposed legislation commissioners will sit alone or with other commissioners with relevant expertise. The court may also engage arborists as court appointed experts in certain circumstances.
As is the case with conflicts about dividing fences, the great majority of tree disputes will occur in built up metropolitan areas. The legislation therefore applies to trees situated in areas with certain zonings, such as areas designated as residential, township, industrial and business under an environmental planning instrument. This approach will ensure that vegetation covered by legislation relating to national parks, catchments, land clearing, native vegetation and other such matters is not caught by the provisions of the bill.
Certain other trees will not be covered by the legislation. The Crown Lands Act 1989 provides that the Minister may refer any matter arising out of the administration of the Act to a local land board for inquiry and report. Accordingly, if the tree situated on Crown land is causing problems, the Minister may refer the matter to the local land board.
Where a matter has been referred to a local land board under either the Crown Lands Act or the Western Lands Act 1901, the Land and Environment Court must not make an order unless the process provided for under the Crown lands legislation has been completed.
Trees on council land are also exempt from the operation of the legislation but only in the short term. It is appreciated that some councils have limited resources and that many already spend considerable time and money dealing with tree disputes.
However, local government should expect to be covered by the scheme in two years time, when a review of the legislation will take place. Unless the review reveals compelling reasons in support of an ongoing exemption, it is anticipated that local government will then be included.
In terms of the more practical aspects of the legislation, the bill requires an applicant to give notice of an application to certain persons, including the tree owner and any relevant authority that would be entitled to appear in the proceedings. The court may waive the requirement to give notice.
The bill provides that a relevant authority, such as a council or the Heritage Council, has a right of appearance before the court in any proceedings where the consent or authorisation of the authority would, in the absence of the legislation, otherwise be required.
Where the court is satisfied that the tree which is the subject of the application has, is, or is likely to cause damage in the near future or poses a risk of injury to a person, the court has jurisdiction to make a range of orders. These orders are designed to remedy or prevent damage, or prevent injury to a person, and may involve the trimming or removal of the tree, installation of root barriers and other such action.
The court may make orders, including:
- payment of costs associated with such orders;
- payment of compensation for damage to property;
- replacement of a tree; and
- authorising entry onto land for the purpose of carrying out an order.
Failure to comply with an order of the court may result in a maximum penalty of $110,000. The level of penalty recognises that more than one tree may be involved.
When deciding to make an order under the proposed legislation, the court must consider a number or factors, including:
- whether interference with the tree would usually require any consent or authorisation under the Environmental Planning and Assessment Act 1979 or the Heritage Act 1977 and, if so, whether such consent or authorisation has been obtained;
- any environmental, historical, cultural, social or scientific value the tree may have;
- any contribution of the tree to the natural landscape and scenic value of the land on which it is situated or the locality concerned;
- any impact of the tree on soil stability, the water table or other natural features of the land or locality;
- factors that may have contributed to the damage (such as the neighbour's own tree roots);
- any steps the tree owner has taken to prevent damage to property or injury to a person; and
- such other matters as the court considers relevant.
The provisions that require the court to consider environmental factors prior to making an order are in recognition of the importance of urban trees as an environmental asset.
Urban trees play a proven environmental role in every urban society. They provide energy savings through lower cooling costs, reduce stormwater run-off, help reduce salinity and provide aesthetic and social benefits associated with being in proximity to nature.
The bill therefore recognises the environmental contribution of urban trees as a factor that the court must take into consideration in determining applications.
A number of submissions relating to the exposure draft bill raised concerns relating to trees blocking light and views.
The Government appreciates these issues are important to some members of the community. However, the Government is mindful that the proposed legislation pioneers new ground and at this stage does not consider it appropriate to address such concerns. They will be kept under review.
Other provisions in the bill give councils a discretion to carry out the work ordered by the court where the tree owner has not complied with the order. Where councils take such action they will be able to recoup reasonable costs associated with such work.
Orders made by the court relating to work to be carried out in relation to the tree that was the subject of the application will "run with the land". That is, where a person sells the land but has not carried out the orders and the applicant has given the new owner a copy of order, the purchaser of the property will be required to carry out the work.
The bill amends the Conveyancing (Sale of Land) Regulation 2005 to require a vendor to give a warranty regarding an application or order requiring work to be carried out in compliance with the Trees (Disputes Between Neighbours) Bill. The bill also amends the Environmental Planning and Assessment Act 1979 to provide for the inclusion of information regarding court orders made under the legislation on section 149 planning certificates.
The legislation will be commenced early in 2007 once the Land and Environment Court has established appropriate procedures.
I commend the bill to the House.
The Hon. GREG PEARCE [10.00 p.m.]: I lead for the Opposition in the debate on the Trees (Disputes Between Neighbours) Bill. The matters sought to be addressed by the bill are important. All honourable members know that disputes between neighbours can become very difficult to resolve. Unfortunately, trees have become one of the real hot spots when it comes to disputes between neighbours. The issue has a wide geographic spread. It is not just a matter that involves densely populated suburban areas, it also include semi-rural and other areas. The bill is a response to report No. 88 of 1998 by the Law Reform Commission, entitled "Neighbour and Neighbour Relations", which made various recommendations in an attempt to deal with the problems that are addressed by the bill.
The Law Reform Commission concluded that the existing common law approach, which is the current remedy for dealing with these types of disputes and was the subject of media fanfare and by the Government some time ago, is not the best way to deal with issues involved in neighbourhood disputes. I do not want to take up the time of the House repeating the arguments and analysis that can be obtained from a reading of the Legislation Review Committee's consideration of this bill or from the Law Reform Commission's report. Suffice it to say that this bill will enable proceedings to be brought before the Land and Environment Court to resolve disputes between neighbours relating to trees in urban areas.
The bill enables the owner of land to apply to the court for an order to restrain or prevent damage to the owner's property as a consequence of a tree situated on adjoining land. The bill applies only to land that is zoned residential and does not apply to rural residential, rural land, township or industrial land, and it does not apply to trees on land under council control. A number of exemptions will still be dealt with under the common law. There is no action in nuisance available as a result of damage caused by the tree to which the legislation will apply. Briefly stated, this bill provides for a new regime in the Land and Environment Court. In my former life as a solicitor, I spent some time practising in the Land and Environment Court. Even though the court has its system of commissioners and assessors who can examine matters, will that be the right forum for resolving the types of disputes sought to be addressed by the bill?
Given the limitations of the scope of the bill and the fact that it applies only to residential land, the issues of costs will come into consideration by parties as to whether they will seek an injunction in the Land and Environment Court. Therefore, it remains to be seen whether the new regime will be a useful solution to the problem. Another issue that was highlighted in the other place by the shadow Minister relates to the definition of "trees". The provisions of this bill could be interpreted as applying to hedges and other types of plant growth. There are some doubts about whether this legislation will produce a cost effective and rapid way of dealing with the types of disputes that all honourable members would be well aware of and whether it will open up all types of questions such as how neighbours deal with shade and visual definition between properties. The Opposition will not oppose the legislation, but it will be interested to observe the manner in which it operates. I am sure that other honourable members will have very interesting contributions to make to the debate tonight.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS [10.06 p.m.]: Under the Trees (Disputes Between Neighbours) Bill disputes between neighbours about trees in urban areas will be able to proceed, and hopefully be resolved, in the Land and Environment Court. It is good that the Land and Environment Court has been defined as the court that will deal with matters arising from this bill because it has special expertise in the area of resolving what sometimes amount to quite serious disputes between neighbours. The bill enables an owner of land to apply to the court for an order to remedy, restrain or prevent damage to the owner's property, or to prevent injury, as a consequence of a tree situated on adjoining land.
Disputes over trees encroaching onto adjacent properties are nothing new in Australian suburbia. In 1998 the New South Wales Law Reform Commission published report No. 88, entitled "Neighbour and Neighbour Relations". The commission's report concluded that the common law of nuisance and abatement, which currently governs disputes between private parties about trees, does not provide an adequate dispute resolution process for people living in closely settled communities. A new process for dispute resolution over trees between neighbours where a tree has caused damage to an adjacent property, or is likely to cause damage in the near future, will be established under this bill.
The court may make such orders as it thinks fit to remedy, restrain or prevent damage to property, or to prevent injury to any person, as a consequence of the tree concerned. Clause 10 also enables the court to make orders if a tree is likely to cause injury to any person and applies only to trees situated on land within residential, business and certain other urban zones under environmental planning instruments. It does not apply to trees situated on land that is vested in or managed by a local council. The Legislation Review Committee's report states that the issues it considered included:
Trespasses on personal rights and liberties [s 8A(1)(b)(i) LRA]
Restriction of action in nuisance: Proposed section 5
9. Proposed clause 5 provides that:
No action may be brought in nuisance as a result of damage caused by a tree to which this Act applies.
10. The common law of nuisance provides protection against physical damage to land or buildings. A remedy is available once damage or substantial interference has already occurred or where it is apparent that substantial damage or interference is a virtual certainty or is imminent. Nuisance also protects the less tangible interest of the enjoyment that a person normally derives from residing on land. An owner of land can either sue a neighbour for nuisance or apply for a Supreme Court order to stop the nuisance.
11. Traditionally, the common law of nuisance has been used to provide a remedy to a person who suffers damage or interference as a result of problems caused by neighbouring trees. Generally a person creates a nuisance on his or her own land, which then causes an interference with the rights of an adjoining landowner or occupier, for example, legal action has been successful where tree roots spread across a boundary and caused subsidence and damage to houses by drying out the soil on which the houses were built, and where overhanging branches caused fruit trees to be stunted.
12. The problems associated with bringing an action in nuisance for damage caused by a tree are outlined in the NSW Law Reform Commission's report:
Submissions argue that the rights of a person suffering from a neighbour's nuisance tree are hard to enforce. Many say that they had approached their neighbours about the nuisance tree, but to no avail. Other problems identified include that going to the Supreme Court to enforce rights is too expensive for most people, it can take a number of years to enforce a right, and councils generally will not help and have only limited powers. The report continues:
13. The bill provides a new system for dealing with damage to property or person caused by trees in urban areas, which is designed to mitigate problems identified by the NSW Law Reform Commission with bringing an action in nuisance.
14. While proposed section 5 provides that no action that may be brought in nuisance in relation to neighbouring trees to which the bill applies, it does not limit other common law actions ie. abatement and negligence.
This bill is a valuable adjunct to neighbourly harmony. I have been advocating for some time for some legislative framework in which we can consider the causes of disputes and sensible and realistic resolutions to those disputes. This bill is a step in the direction the Government should take more often.
Reverend the Hon. Dr GORDON MOYES [10.10 p.m.]: The Christian Democratic Party supports the Trees (Disputes Between Neighbours) Bill. The object of the bill is to enable proceedings to be initiated in the Land and Environment Court to resolve disputes between neighbours about trees in urban areas. Specifically, the bill enables an owner of land to apply to the court for an order to remedy, restrain or prevent damage to the owner's property, or to prevent injury, as a consequence of a tree situated on adjoining land. In his article in the Sydney Morning Herald entitled "A View to Kill For" in May 2006 Larry Wright explored the insidious phenomenon of tree poisoning within some of Sydney's wealthiest suburbs. The title of the article aptly describes the raison d'etre behind this practice_most, if not all trees within these areas are killed for an enhancement of the view. In most cases where a tree blocks a view of the harbour, the value of houses in the area affected can increase exponentially. The article quotes a real estate agent saying:
A view is a lovely thing to have but it can also increase a home's value by 40-60 per cent. Home owners and developers know the chances of being caught are pretty much zero and even if they are [caught], they'll only cop a tiny fine so they eliminate the trees blocking their view. Their property, which yesterday was worth a million, is suddenly worth $1.8 million.
Members keen to understand the spread of this problem and how the practice of tree poisoning occurs ought to read this article. It clearly and effectively describes the dark practice of tree killing across Sydney's most affluent suburbs. The manner in which trees are killed varies, including ringbarking and bark stripping. In many cases, poison is applied to the root area. For example, tree poisoners almost always work under cover of darkness. Typically they drill a number of two-centimetre diameter, 15-centimetre-deep holes diagonally down in the trunk. They then pour in weedkiller like Roundup, which contains the poison glyphosate, and plug the holes with cork, epoxy or cement. Once the poison has invaded the tree, it stops the root system taking water, starving the flow of nutrients and minerals. The roots and foliage wither and the trunk decays. Usually by the time a person has wondered what is happening to this tree is it already too late. Eventually the tree dies. If the poisoning can be detected very early, flushing the tree and surrounding soil with a hose and the water may flush out the poison and if you are lucky you will save it.
This description paints a sad picture—a slow and crippling death for plants that provide shade for the weary and fresh air for all to enjoy. Lamentably, this action is typical where greedy neighbours are involved, where lip-service is paid to respecting the tree owner's privacy. Obviously, though, tree killing is not relegated solely to areas of affluence, where the principal motivation for killing a tree is to derive a financial benefit. It could also occur in places where a tree has been the source of trouble through encroaching on a neighbour's property, such as the roots raising and breaking the concrete path next door or even cracking the brick walls of the house. Where trees are killed on private property, what action may be currently taken against tree vandals? In most cases, the identity of the tree vandal is not too difficult to surmise.
Who benefits from the death or removal of a tree? Obviously, it is the person on whose view the tree encroaches. However, unless a person has solid evidence against this person, legal action will be taken at peril. A citizen can initiate civil action against such a person, but because the burden of proof lies with the plaintiff, a simple suspicion though reasonable does not suffice to discharge the onus of proof. Where unsubstantiated claims are made against a person, grounds for defamation action can exist. Thus, where tree killing occurs at night, there is little chance that the offender will be caught and made accountable.
Tree disputes have often led to neighbours being at loggerheads. This area of contention led to the New South Wales Law Reform Commission considering the current state of the law, with a view to proposing recommendations. In report No. 88, entitled "Neighbour and Neighbour Relations", published in 1998, the commission indicated that the common law of nuisance and abatement, which currently governs disputes between private parties about trees, does not provide an adequate dispute resolution process for people living in closely settled communities. The commission made seven recommendations in total, one being that legislation can be enacted providing a new simple, inexpensive and accessible process in Local Courts, similar to the model under the Dividing Fences Act 1991 for the resolution of disputes between neighbours about trees.
Given that much of the responsibility for resolving tree disputes lies with local government, it is of importance to note what action the peak representative Local Government and Shires Associations have recommended. In 2005 the associations provided that the Environmental Planning and Assessment Act be amended so that the illegal removal of a tree results in sufficient penalties through the Land and Environment Court and the Local Court, including an appropriate minimum penalty. Further, the associations urged the State Government to review relevant legislation in order to redress anomalies and inconsistencies between the type and level of penalties levied for the removal of or injury to trees on public property and those on private property.
As indicated in the second reading speech, the instant bill draws upon the work undertaken by the Law Reform Commission, but takes a different approach to that contained in a number of the commission's recommendations. One example of different approach is that jurisdiction for resolving tree disputes will be given, under this bill, to the Land and Environment Court, rather than the Local Courts. It could also be said that aspects of the Local Government and Shires Associations' views have been heeded with the introduction of this bill. The Land and Environment Court is the appropriate forum for resolving disputes about trees.
Given that the court has judges and commissioners with extensive experience relating to issues dealing with national parks and wildlife, native vegetation, threatened and endangered species, it makes sense that this jurisdiction is given responsibility for arbitration of this area. It has been reported that the court has recently advertised for acting commissioners with qualifications in arboriculture, ecology, heritage and engineering, all of which may be relevant to a dispute involving a tree. Under the bill, the Land and Environment Court will be able to make orders to remedy, restrain or prevent damage to property or prevent injury to any person as a result of a tree on adjoining land. Failure to comply with such an order may result in a maximum penalty of $110,000 with compensation and costs.
One important aspect of this bill is that it will only apply where certain urban areas are concerned. Clause 4 indicates that the proposed Act applies only in relation to trees situated on land within residential, business and certain other urban zones under environmental planning instruments made under the Environmental Planning and Assessment Act 1979. Tree disputes arising within a rural context will need to be facilitated by the relevant council. The bill provides that the Act is to be reviewed to determine whether the policy objectives of the Act remain valid, whether the terms of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives. I am glad this review is being taken. I hope that the measures in this bill will be referred to as a last measure. Neighbours should take the time to deal face to face with each other rather than take each other to court. Community justice centres provide an excellent platform for the resolution of such disputes, where amicable conversation fails. The Christian Democratic Party commends the bill to the House.
Ms SYLVIA HALE [10.20 p.m.]: The Greens support the Trees (Disputes Between Neighbours) Bill. I foreshadow that I will move a number of amendments in Committee but they do not substantially change the intent of the bill. In urban communities, trees play an important role in the health of the biological ecosystem. They provide habitat for wildlife and create a more hospitable setting for many species, including our own. Not least of a tree's charms is its ability to reduce air temperature in summer. The roots bring water up from the ground, which is aspirated through the leaves, creating a cooling effect on the surrounding air. We need to preserve and grow our urban forests. I note that in this instance the Government has been consultative by releasing an exposure draft of the bill earlier this year for public comment and that a number of changes have been made to the bill as a result of submissions received during that process. If only the Government could follow that process more often.
The object of the bill is to enable the bringing of proceedings in the Land and Environment Court to resolve disputes between neighbours about trees in urban areas. The bill enables an owner of land to apply to the court for an order to remedy, restrain or prevent damage to the owner's property, or to prevent injury, as a consequence of a tree situated on adjoining land. The bill comes out of an eight-year-old report by the New South Wales Law Reform Commission entitled "Neighbour and Neighbour Relations", which was published in 1998. The Law Reform Commission's report concluded that the common law of nuisance and abatement, which currently governs disputes between private parties about trees, does not provide an adequate dispute resolution process for people living in closely settled communities.
Therefore, the Government intends to make the Land and Environment Court the adjudicating court in tree disputes. With regard to the expertise of the court, the Greens can see why the Land and Environment Court has been chosen: it often deals with environmental impact statements and land disputes. In addition, the court has recently advertised for acting commissioners with qualifications in arboriculture, ecology, heritage and engineering, all of which may be relevant to a dispute involving a tree. The court may also engage arborists as court-appointed experts in certain circumstances. There should be some quality assurance measures incorporated to ensure that the arboriculturists used are of an acceptable standard. Given the nature of the risk, it may be easier for a less competent person to condemn a tree to eliminate any risk, including to themselves from legal action.
It is extremely important that the courts are informed by expert arborists, because there is actually little factual basis for the majority of disputes arising from a perception of risk. The statistics do not reflect a high level of risk in reality. People are not being injured or killed by neighbours' trees, and in New South Wales only one death has been caused by a tree in an owner's property in the past 10 years. A large number of disputes are baseless in reality. However, it is likely that there will be pressure to remove trees in order to resolve a disagreement rather than to address any quantifiable risk. A consistent approach to risk assessment would also provide a basis for evaluating the relative benefits of different responses to conflictive situations. Trees are valuable community assets and it should not be automatically assumed that any degree of risk, no matter how small, or any damage to neighbouring property automatically warrants their removal. It is relevant to note that ageing structures are more susceptible to tree damage.
Currently there is no methodology of quantifying the degree of risk presented by a tree being used in New South Wales. In the United Kingdom one methodology, known as quantified tree risk assessment, derives an index to determine whether a risk is acceptable. Although there is still an element of subjectivity, users of the methodology are certified. With professional guidance in assessing risk there would be, furthermore, an improved likelihood that any prescribed tree work will be referred to properly qualified arborists-tree surgeons, thereby reducing the risk that court-prescribed management actions themselves will cause future safety problems.
The Greens are, however, pleased to see that within suggested section 12, which deals with matters to be considered by the court, amongst other considerations the court is to consider whether the tree has any historical, cultural, social or scientific value; any contribution of the tree to the local ecosystem and biodiversity; any contribution of the tree to the natural landscape and scenic value of the land on which it is situated or the locality concerned; the intrinsic value of the tree to public amenity; and any impact of the tree on soil stability, the water table or other natural features of the land or locality concerned. Further, if the applicant alleges that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant's property, or injure someone, the court must consider, as stated in the bill, "anything, other than the tree, that has contributed, or is contributing, to any such damage or likelihood of damage, including any act or omission by the applicant and the impact of any trees owned by the applicant".
So the court will not be able to easily order that the tree be removed without considering all those factors. If the tree is genuinely posing a danger, it can be trimmed or removed but the court would need to have expert advice from a tree expert prior to ordering that the tree be trimmed or removed. The court can also order that a tree be replaced and allowed to grow to maturity, which will ensure that where a tree must be removed no-one interferes with a replacement tree. The Greens believe the considerations required are very sensible, as, unfortunately, there are some people who really hate trees. Although some people call environmentalists "tree huggers", I would much prefer to be a tree hugger than a pathological tree hater. Some people seem to have a horror of falling leaves and falling bark, believe tree roots strangle their plumbing, and generally want to live in an overconcreted and overly neat world where nature, if any, is tightly marshalled into a lawn or confined to a pot.
The court needs to protect trees from such people, who may unreasonably claim that a tree is dangerous and should be removed just because they dislike a neighbour's tree overhanging their property. The Land and Environment Court is not exactly inexpensive. But the legislation does say that the applicant and landowner must have tried to come to an agreement prior to any hearing. I assume this would involve any prior negotiations directly between the parties, or via their lawyers, or within a community justice centre, which is inexpensive and mediated by a qualified person. If no agreement is reached, one party may apply to the Land and Environment Court. That would probably most likely occur if a tree had caused damage or injury already and no settlement or compensation agreement had been reached.
A number of lands containing trees are exempted from the bill. Council-owned land is exempted. Therefore private occupants of land adjoining a council reserve may not have remedy against their council should they have a dispute about a tree affecting their property. However, according to the Minister, this will most likely change following a review of the Act in two years time. Section 4 (2) (b) provides that the Act does not apply to trees situated on any land of the kind prescribed by the regulations. The Attorney General or the Minister for Planning will have the power to exempt any land by regulation. We are used to the Minister for Planning awarding himself exceptional powers, and this would seem to be just another example of Minister Sartor exercising his power to make exemptions for one piece of land and not another. Perhaps this is to cover the Government where a tree on land owned by the Roads and Traffic Authority, the Sydney Ports Authority, or another government corporation or authority is the subject of a dispute with a neighbouring landowner.
Although Crown lands are exempted, where a tree situated on Crown land is causing problems the Minister may refer the matter to the local land board. Where a matter has been referred to a local land board under either the Crown Lands Act or the Western Lands Act 1901, the Land and Environment Court must not make an order unless the process provided for under the Crown lands legislation has been completed. Other parties can be included in the proceedings. The bill provides that a relevant authority, such as a council or the Heritage Council, has a right to appear before the court in any proceedings where the consent or authorisation of the authority would, in the absence of the legislation, otherwise be required.
One suspicion arises that the bill may be paving the way for the potential, after future review, for people to have the Land and Environment Court order the removal of trees on the basis of view. This, of course, would be strongly supported by developers and the real estate sector. Some people who buy expensive apartments overlooking water seem to think they have a right to a view and that a council should not plant trees that obstruct their multimillion-dollar vistas. In that respect the exemption of the council from this legislation may prevent claims being made against a council, although I note that there is no basis for any action based on loss of view. The only grounds are when a tree is causing or is likely to cause damage or injury. The Minister commented in his second reading speech:
A number of submissions relating to the exposure draft bill raised concerns relating to trees blocking light and views. The Government appreciates these issues are important to some members of the community. However, the Government is mindful that the proposed legislation pioneers new ground and at this stage does not consider it appropriate to address such concerns of trees blocking light and views. They will be kept under review.
Under this legislation councils will have the discretion to carry out the work ordered by the court where a tree owner has not complied with the order. Councils that take such action will be able to recoup reasonable costs associated with such work. What happens if a council fails to undertake the work? How can a court order be enforced? How does a council recover costs from, for example, a very low-income homeowner or mortgage defaulter? I ask the Minister to address these concerns in his reply. The Greens have a number of amendments to the bill but in general we support it.
Reverend the Hon. FRED NILE [10.30 p.m.]: The Christian Democratic Party supports the Trees (Disputes Between Neighbours) Bill. I add my support for the bill, which perhaps should be called the bill to promote peace and harmony between neighbours with troublesome trees. The bill enables the bringing of proceedings in the Land and Environment Court to resolve disputes between neighbours about trees in urban areas. In particular, it enables an owner of land to apply to the court for an order to remedy, restrain or prevent damage to the owner's property, or to prevent injury as a consequence of a tree that is situated on adjoining land.
The roots of large trees that are grown in suburban areas can move under pathways, pavements and walls, and they can affect the footpaths of next-door neighbours as well. These trees must be brought under control. They should not be poisoned by residents who want to protect their view of a river or the ocean. As we have seen in the media, in the middle of the night people poison the trees so they do not block their view. Some councils erect banners where the trees once were, to block the view. The best remedy would be to plant more trees. There is always controversy about trees, and questions have been raised about action that has been taken by government agencies and councils in relation to them.
Sydney City Council removed trees from the Domain, alleging that the trees were diseased and needed to be destroyed. I inspected some of the trees after they were cut down. They looked quite healthy. There was no sign of disease in the trunks of the trees. Perhaps the roots were diseased, but the trees themselves appeared to be healthy. How do we control public authorities that sometimes are quick to remove trees that they consider cause a problem, such as tree branches falling on pedestrians? In such cases councils could be sued for damages. They may consider that the safest option is to remove the trees. That is an extreme policy. The Government should also supervise councils in relation to the protection of trees in their community. The Christian Democratic Party is pleased to support the bill.
Mr IAN COHEN [10.33 p.m.]: I support the position taken by Ms Sylvia Hale, who led for the Greens, on the Trees (Disputes Between Neighbours) Bill. Trees in urban settings have multi- functions, such as aesthetic appeal, and shade and home to native birds and animals. One has only to look out at the Domain and the Royal Botanic Gardens to see the bats on the wing and the many possums that have an avid audience of tourists at night. On many occasions when I walk through the parks I stop and look at the amount of wildlife that is attracted to the native species. It is not unusual to see a magnificent display of bats at sunset. I know they create problems with their numbers and roosting, and that they impact on trees in the botanic gardens. However, they bring nature to the city and add to the quality of life of people in the city. Wherever we go it is important to recognise parklands and trees on private property.
I am also interested to note the number of sacred ibis that are in the city area. I understand that many councils take exception to them. The sacred ibis were once considered fragile, but they are quite adept at living in an urban environment. Whilst some councils are intent on controlling the numbers of sacred ibis, I ask the House and those concerned with controlling bird numbers to recognise that we are in a drought and that many of the birds are moving to the city as a refuge. Hopefully, as the climactic conditions change they will spread further afield. I have seen birds of prey hovering over Hyde Park, waiting for an unaware possum or perhaps a city rat to come into their sight. Trees can enhance the quality of life of people in city areas. Urban parklands are the lungs of the city aesthetically and realistically, and provide many services to humans.
Disputes about trees do arise. Ms Sylvia Hale and other speakers have referred to this issue. The disputes are often about matters of inconvenience, such as leaves in gutters, but sometimes the trees are causing a real nuisance or damaging neighbouring properties. The bill deals with this issue in a constructive manner. I am concerned about the degree of tree vandalism in many areas, particularly in coastal areas where trees are seen to inhibit the million-dollar views held dear by owners, developers and real estate agents. Views mean money. I have seen trees poisoned on the Glebe waterfront and at the south end of Bondi. Waverley Council has intelligently placed signs that clearly indicate that trees have been poisoned in the area. I understand that the signs, which carry a warning to people to report tree vandalism, remain in place until new trees have grown. Cargo containers, which are obviously difficult to move, are also used. I believe the way for councils to constructively and intelligently address this problem is to permanently erect a large sign or banner acknowledging that tree vandalism has taken place. The sign stays in place until more trees have grown to the point of maturity, when they take the place of the original trees. That is a long-term project.
This plan has been adopted in my area of Byron shire. At Clarks Beach I saw that trees had been poisoned. Together with other members of the local community, I convinced the council to erect a large sign, which has been in place for several years, while other trees were planted, took root and began to grow. It is often obvious who has perpetuated the crime of poisoning the trees, but little can be done against the individual poisoner because it is usually done surreptitiously at night. The erection of signs can resolve this problem. Every vandalised tree should be replaced by a large sign until new trees are allowed to develop. All along the coast we have a major problem with unregulated tree clearing. I commend the bill, which addresses such issues and other problems. Tree vandalism is a significant problem, particularly with the rise in value of coastal real estate and the pushing of views as an asset rather than a setting for trees. The wide open vista is treasured by particular landowners but it is not the best ecological solution to a balanced life on the coast. I support the bill and acknowledge the great importance of trees in the urban environment.
The Hon. HENRY TSANG (Parliamentary Secretary) [10.39 p.m.], in reply: I thank all honourable members who contributed to debate on the bill and I commend it to the House.
Motion agreed to.
Bill read a second time.
Consideration in Committee ordered to stand as an order of the day.