Autumn leaves – charming feature or nuisance?
Autumn can be a delightful time of year, bringing a crispness to the air, not to mention the beautiful and ever-changing colours of the leaves of our neighbours' deciduous trees. But what if the leaves block our gutters, turn our paths into a hazard, or generally appear unsightly? Can anything be done?
Actually, it can. The Property Law Act 2007, which came into force on 1 January 2008, makes explicit mention of leaves for the first time. Before launching into legal action as soon as the first leaves hit the ground, however, there are a few things to bear in mind.
The first is that the presence of trees in your neighbourhood is generally considered to be a good thing, and the Courts are specifically directed in s 336 of the Act to have regard to "the interests of the public in the maintenance of an aesthetically pleasing environment", among other things.
The second is that, under s 335(1)(b)(iv) of the Act, you need to prove:
(a) "undue interference with the use or enjoyment of [your] land by reason of the fall of leaves …", and
(b) that refusing to make an order would cause you undue hardship that would be greater than the hardship that would be caused to the tree owner/land occupier, and
(c) that any order would be fair and reasonable
These two things in combination mean that you should probably expect to have to deal with a reasonable amount of wind-blown leaves on your own.
If, however, your neighbour has a mini-forest of trees all along their side of the fence, and their leaves fall and accumulate daily on your property, blocking drains and covering your lawn, this is likely to be "undue".
The best "first course of action" should simply be to talk to your neighbour. Together, it is possible that you could come up with a solution that works for both of you and which avoids the need to apply under s 333(1)(b) of the Act for an order that the trees to be trimmed or removed.
In summary, while your neighbour is perfectly entitled to plant as many trees as they like, they are also responsible for ensuring that their trees and their leaves do not cause undue problems for anyone else. If everyone tries to be reasonable, it's likely you'll get the right solution in the end.
If you can't reach agreement between yourselves, your lawyer will be able to assist.
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This article is brought to you by Colette Mackenzie of Gibson Sheat Lawyers and its subsidiary The Conveyancing Company, specialists in property law, mortgage broking, refinancing, buying and selling residential or commercial property, and subdivision.
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