Your neighbors have rights and responsibilities for their trees, this is covered by the common law of nuisance in Adelaide. A nuisance situation exists if a tree’s branches or roots intrude upon a neighbor’s property. The neighbor has the right to remove the encroaching branches and roots at their own expense, as long as the tree is not a significant tree. However, the neighbor cannot trespass onto the tree owner’s land in order to remove a part of the branch or root that is not located on their property.
Technically, the tree’s roots and branches belong to the tree owner. So, they can be placed over the fence into the tree owner’s Adelaide based property, as long as it does not cause any damage. Unless the work is necessary in order to minimize damage which has already happened or is likely to occur, the tree owner is not responsible for the cost or removing the roots or branches.
The neighbor can request that the tree owner pays for the cost of any repairs and pay compensation if the intruding branches or roots cause damage to the neighbor’s home or property. Some common types of damage caused by roots and branches are cracked pipes, poisoning animals (stick to native trees and this won’t be an issue) or damaging gutters. The neighbor can apply to the Magistrates Court’s Civil Action division in Adelaide if the tree owner is unwilling to compensate the neighbor fo the damage. In some cases, the court has ordered the owner to remove the branches and roots, and sometimes they may ask for the whole tree to be removed.
Falling tree branches can cause damage. If the tree was overhanging its boundaries, then the owner is responsible for the damage. Where the tree or branch falls will determine the tree owner’s liability, which is based on whether the damage was foreseeable. If the tree did not overhang the boundaries or the tree was overhanging onto public land such as a roadway, then you may need to show that the owner knew or should have recognized the dangerous condition (such as a tree dying from a lack of water) that led to the branch falling and causing damage. If the owner understood the danger, they can be held responsible for the tree.
If the neighbor is aware that there were branches overhanging and causing a dangerous condition, or that a tree species is known to drop branches, they should immediately point this information out to the tree owner, in writing. The neighbor should retain a copy of their correspondence. The owner of the tree should then take the correct course of action including advising the Council in Adelaide of tree removal before taking an action. If damage occurs, this letter will help establish the tree owner was aware of the issue and failed to take steps or use precaution to protect other people and their property from damage by the tree.
If the tree is healthy and it is blown onto a neighbor’s property, crashing into the fence, during a storm, this is an “act of God”. There is no liability. There is also no liability for needles, twigs, nuts and leaves blown onto neighboring property by the wind. The only time that these items may become an issue is if they are toxic and attractive to children or animals.