The law about neighbours' rights and responsibilities for trees is covered by the common law of nuisance. Where the branch or root of a tree comes onto a neighbour's land, a nuisance situation exists. The law of nuisance may provide several remedies depending on whether the tree has caused, or is likely to cause, actual damage or loss. In most instances, and unless the tree is a significant tree, the neighbour can remove the encroaching roots or branches. This would usually be at their own cost, as the cost of removing the branch or roots cannot be claimed unless the work is necessary to minimise damage which is already occurring or is likely to occur. The neighbour cannot go onto the tree owner's land and cannot remove any part of the root or branch that is not on their property. The branches and roots are technically the property of the tree owner and can be placed back over the fence, taking care not to cause any damage.
If the intruding roots or branches have caused damage to the neighbour's property (for example, roots cracking pipes or branches damaging gutters or poisoning animals) the neighbour can ask the tree owner to pay the cost of repairs or compensation. If the tree owner is unwilling to pay, the neighbour can apply to the Minor Civil Actions division of the Magistrates Court for a court order that the owner pay. In some circumstances a court might order that the owner remove the root or branch or perhaps the whole tree. Legal advice should be sought.
Problems often arise when tree branches fall, causing damage. The owner's responsibility in these situations depend on whether the tree was overhanging the boundary. Where an overhanging tree or branch falls, the tree owner would be liable if the damage caused was reasonably foreseeable. To hold the owner responsible for a tree that was not previously overhanging the boundary or where the tree was overhanging public land such as a road it is necessary to show that the owner knew or should have known that the tree or branch was in a dangerous condition and that it might fall and cause damage.
A neighbour who is aware that a tree near the boundary is in a dangerous condition, or belongs to a species which is known to ‘drop’ branches, should draw this to the tree owner’s attention in writing and keep a copy of the letter. If damage occurs later, this will assist to establish that the tree owner was aware of the problem and failed to take reasonable and appropriate precautions. If, however, a strong, healthy tree blows down across the fence in a storm, this is considered to be an ‘act of God’ for which there is no liability. Nor is there liability for leaves, needles, nuts or twigs which are blown into the neighbour’s property by the wind unless, perhaps, they were known to be highly toxic and attractive to animals or children.
See also our booklet Trees and the Law available from our Publications page.
The Office of the Technical Regulator in South Australia has produced a useful pamphlet on Trees and powerlines. This includes information on clearance zones and responsibilities of owners and network operators as well as the trees that can be planted, the distance they need to be planted from the power lines, and information about applying for exemptions to plant other trees.
The Planning, Development and Infrastructure Act 2016 (SA) provides that any activity that damages a significant or regulated tree is development.
A regulated tree is:
OR
The Regulated and Significant Tree Overlay is outlined in the Planning and Design Code, and applies to metropolitan Adelaide, townships in the Adelaide Hills Council, and parts of the Mount Barker Council.
A significant tree is:
Note: the minimum trunk circumference requirements of a regulated tree and a significant tree reduced on 16 May 2024. Existing development applications and approvals are unaffected if the activity is undertaken within 12 months of the change [see Planning, Development and Infrastructure (General) (Regulated and Significant Trees) Amendment Regulations 2024 Schedule 1].
An individual tree may also be declared to be a significant tree by the Planning and Design Code [reg 3F(5)]. Part 10 of the Planning and Design Code currently lists specific significant trees in the Adelaide, Burnside, Prospect and Unley council areas.
Any activity that could damage these trees is prohibited without development approval. Section 3(1) of the Planning, Development and Infrastructure Act 2016 (SA) defines tree-damaging activity as:
In addition, excessive pruning can also meet the definition of tree-damaging activity. Under regulation 3F(6) of the Planning, Development and Infrastructure (General) Regulations 2017 (SA), pruning that does not remove more than 30% of the crown of the tree and is required to remove dead/diseased wood or branches posing a risk to buildings or persons is excluded from the definition, provided it is undertaken at least 5 years after the last prune of this kind.
There are heavy penalties for doing prohibited work on a significant or regulated tree without permission. If a tree-damaging activity needs to be done urgently to a regulated tree to protect a person or building (or in other circumstances prescribed in the regulations), a person may undertake the urgent work, taking care to cause the minimum amount of damage to the tree. The person undertaking the tree-damaging activity must notify the relevant authority by telephone or by email within 28 days of the activity commencing and approval must be applied for afterwards [s 136(2) and Planning, Development and Infrastructure (General) Regulations 2017 (SA) reg 63].
Exemptions
There are a number of exemptions listed in the Planning, Development and Infrastructure (General) Regulations 2017 (SA) which exclude certain trees from the provisions concerning regulated and significant trees.
Council approval is not required to remove a significant or regulated tree if it is:
Applications
A council may either approve an application, approve it subject to conditions or refuse it. No notice of applications will need to be given to neighbours unless the tree is on council land. The normal application fees apply for tree owners but there is no fee for an affected neighbour seeking approval to lop on their side of the boundary.
If approval has been given to remove a regulated or significant tree, the council may make it a condition that replacement trees are planted or that money is paid into an urban tree fund. An applicant has the right to appeal to the Environment, Resources and Development Court within 2 months of the council's decision.
The requirement to obtain approval under the Planning, Development and Infrastructure Act 2016 (SA) for a tree-damaging activity in relation to a regulated tree applies despite the fact that the activity may be permitted under the Native Vegetation Act 1991 (SA). See the Law Handbook chapter on Nature Conservation for further information on how the Native Vegetation Act 1991 (SA) applies in South Australia.
For more information on significant and regulated trees, including the current list of exempt species designated by the Minister, visit the PlanSA government web page on Significant and regulated trees.
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