Dear Jason and ors;
In Lemmon v Webb [1894] 3 Ch 1 the Court of Appeal held that an overhanging tree, if it causes interference with the enjoyment of land by the neighbour (and interference seems to always be assumed in such cases), amounts to a nuisance (not a trespass) and the nuisance may be abated by the neighbour cutting back the branches to the limit of his property, without giving prior notice to the owner of the tree (the issue in the case). (The decision was affirmed without addition of any new reasoning by the House of Lords in [1895] AC 1.)
One would think that there might be a rule that abatement of a nuisance may only be carried out where it is "proportionate" to the harm or something similar. But I am not aware of such a rule existing. I see in Clerk & Lindsell (19th ed) 31-25 (c) that the closest rule seems to be that the abatement must cause "as little damage as possible" (citing Lagan Navigation Co v Lambeg Bleaching Co [1927] AC 226, 241, 246.) But apparently, since a landowner has a right not to have their land interfered with by tree branches, they are entitled to exercise the right even if it kills the tree, if there is no other way. Perhaps one could argue that in some cases it would be possible for the harm to be removed by the owner of the tree "tying back" the protruding branches, and that a reasonable abatement would involve giving the owner a chance to do this beforehand. But since Lemmon holds that no notice is required to be given by the lopper first, then it would be hard for the owner of the tree to complain if the lopping was done.
I cannot resist noting (though it is irrelevant to colleagues outside NSW) that the common law right to trim overhanging branches is now in some doubt in this State due to the enactment of the Trees (Disputes between Neighbours) Act 2006 (NSW)- see my note in (2007) 81 ALJ 291. There is an extensive review of the common law of nuisance and trees, and how it has been changed by the new Act, in the judgment of Preston CJ in the NSW Land and Environment Court in Robson v Leischke [2008] NSWLEC 152 http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWLEC/2008/152.html . Unfortunately for present purposes there is no comment on how the issue raised by Jason would have been treated at common law.
Under the NSW Act, however, s 12 requires the LEC, if it were asked to make an order authorising the removal of branches, to take into account a wide range of considerations, many of which relate to the value of the tree itself (eg its "historical, cultural, social or scientific value" and its "intrinsic value to public amenity"), so I imagine under such a "dendrophilic" regime the Court would be very reluctant to authorise lopping if the tree would be killed.
Regards
Neil F
Neil Foster
Senior Lecturer, LLB Program Convenor
Newcastle Law School
Faculty of Business & Law
MC158, McMullin Building
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931
>>> Jason Neyers <
jneyers@uwo.ca> 26/05/09 3:55 >>>
Dear Colleagues:
As I understand the common law, a person is entitled to trim over-hanging branches that encroach unto his or her property and must return the severed branches to the tree's owner if requested. What is the position if the trimming, even if done by an expert, would invariably kill the tree? Are there any cases dealing with this issue or any interesting discussions of this issue? I would appreciate any assistance that you might provide.
All the best,
--
Jason Neyers
Associate Professor of Law &
Cassels Brock LLP Faculty Fellow in Contract Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435