Resolving fencing and tree disputes

Boundary disputes between neighbours are among the most common legal issues in New South Wales. Whether it’s disagreements over fence repairs, tree damage, or privacy concerns, the law provides clear guidelines on how these matters should be handled. The recent Land and Environment Court decision in Mirzaee-Amirabad v Wang [2024] NSWLEC 1744 concerning neighbours in Oyster Bay, southern Sydney, highlights the balancing act between property rights, environmental considerations, and legal obligations when dealing with such disputes.

This case involved a disagreement over tree damage to a shared fence and the appropriate height and cost-sharing arrangements for a replacement fence. The Court’s decision provides valuable guidance for homeowners dealing with similar disputes and reinforces the importance of evidence, negotiation, and legal compliance when resolving property issues.

Factual Background

The Parties and the Dispute

• Sima Mirzaee-Amirabad (Applicant) and Jessica Wang (Respondent) were neighbours with properties separated by an ageing Colorbond fence.
• Several large trees on Ms Wang’s property had overhanging branches and extending roots, which the applicant argued were damaging the fence and posed a safety risk.
• The applicant sought:
  • Removal of the trees, citing risk of injury and further fence damage.
  • A new fence, arguing it should be 2.4 metres high for privacy.
  • A 50/50 cost-sharing arrangement for the fence replacement.
• The respondent opposed the removal of the trees, stating they provided shade, amenity, and environmental benefits.
• The respondent agreed to contribute to fence replacement costs but only for a standard 1.8-metre-high Colorbond fence.

The case was brought under Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) and the Dividing Fences Act 1991 (NSW), both of which regulate disputes related to trees and shared fences.

Key Legal Issues Considered by the Court

1. Were the Trees Causing Damage or a Safety Risk?

Under section 10(2) of the Trees (Disputes Between Neighbours) Act 2006, the Court can only make orders if it is satisfied that a tree has caused, is causing, or is likely to cause damage or injury.

Findings:

• Tree 1 (Silky Oak) – The Court found credible evidence that a fallen branch from this tree had damaged one panel of the fence.
• Tree 2 (Cheese Tree) – There was no evidence that this tree had caused damage or posed any risk.
• Tree roots – The applicant failed to provide proof that roots had damaged the fence. The Court found the fence’s instability was more likely due to poor footings and wind exposure rather than tree root growth.

The Court dismissed the request to remove the trees but ordered ongoing pruning and monitoring of Tree 1 by a qualified arborist.

2. What Was the Appropriate Height for the Replacement Fence?

The applicant wanted a 2.4-metre-high fence, arguing it was necessary for privacy. The respondent maintained that a standard 1.8-metre fence was sufficient and in line with local norms.

Under section 4 of the Dividing Fences Act 1991, a "sufficient dividing fence" is one that is commonly used in the area and meets privacy and security needs.

Findings:

• The Court rejected the request for a 2.4-metre fence, ruling that a 1.8-metre Colorbond fence was the standard in the locality.
• The applicant was permitted to build a taller fence, but any extra costs had to be borne solely by the applicant.

3. How Should the Fence Replacement Costs Be Shared?

Under section 7 of the Dividing Fences Act 1991, neighbours must equally share the cost of a standard fence, unless one party wants a higher-quality fence.

Findings:

• Both parties agreed the existing fence needed replacement.
• The Court ruled that each neighbour must pay 50% of the cost of a standard 1.8-metre fence.
• If the applicant chose to increase the fence height, they would have to cover the additional costs.
• To ensure fairness, the applicant was ordered to obtain three separate quotes, and the cheapest quote would be used as the cost baseline for cost-sharing.

4. Who Was Responsible for Organising the Fence Replacement?

To avoid further disputes and delays, the Court issued clear timelines and responsibilities:

• The applicant had 30 days to obtain and provide three quotes to the respondent.
• The applicant had 90 days to hire a contractor and complete the fence replacement.
• The respondent had 14 days to reimburse 50% of the cost after receiving an invoice.
• The respondent was required to allow reasonable access for fence construction.

These structured orders ensured accountability and compliance by both parties.

Court’s Final Orders

1. The application was upheld in part – Orders were made for tree maintenance but not tree removal.
2. Tree 1 (Silky Oak) must be pruned every five years by a qualified arborist.
3. Tree 2 (Cheese Tree) was not found to be problematic, and no orders were made for its removal.
4. The applicant must obtain three quotes for a standard 1.8-metre Colorbond fence.
5. Each party must pay 50% of the cost of a standard fence (any extra height costs to be covered by the applicant).
6. The applicant must organise and pay for the fence installation upfront.
7. The respondent must reimburse 50% of the cheapest quote within 14 days of receiving an invoice.

Key Takeaways for Homeowners

1. Evidence Is Crucial in Tree Disputes

• Courts require clear evidence that a tree has caused or is likely to cause damage before making orders.
• Independent arborist reports are highly recommended.

2. Standard Fencing Rules Apply

• The Dividing Fences Act 1991 prescribes cost-sharing for standard fences.
• If one party wants a higher or more expensive fence, they must cover the additional cost.

3. Court Orders Provide Clarity and Prevent Delays

• Structured deadlines prevent ongoing disputes.
• Courts ensure both parties contribute fairly to fence repairs and tree maintenance.

4. Neighbours Should Try to Resolve Issues Amicably

• Mediation and negotiation can often avoid costly legal proceedings.
• Seeking legal advice early can help clarify rights and obligations before disputes escalate.

Conclusion

The decision in Mirzaee-Amirabad v Wang highlights the legal principles governing tree damage and dividing fences in NSW. It reinforces that:

• Tree removal is a last resort, and ongoing pruning is often a better solution.
• Standard fences must be cost-shared, but additional height costs must be covered by the requesting party.
• Clear timelines and responsibilities help ensure disputes are resolved efficiently.

For homeowners facing similar disputes, understanding your legal rights and obligations under the Trees (Disputes Between Neighbours) Act 2006 and Dividing Fences Act 1991 can prevent costly and time-consuming litigation.