Common problems in neighbourhoods

15 Aug 2016 - 16:20 | Version 9 |

Contributed by IppeiOkazaki and current to 1 May 2016

Disputes between neighbours can arise over all sorts of issues, ranging from the exact position of boundaries to noisy children. They can involve the owners and tenants of houses, flats, home units, factories and businesses. Fortunately, most disputes between neighbours don't wind up in court, but are instead tackled and resolved through polite but direct discussion. A person upset by the behaviour of a neighbour should:
  • discuss the issue early before becoming angry
  • be direct in their discussion so there is no misunderstanding
  • discuss the issue politely because neighbours still have to live next-door or very close to one another.

Neighbours' rights

Some disputes occur between neighbours because one disagrees with something the other is doing on their own land, even if it involves no actual crossing of the boundary.

Privacy

As far as the law applies to neighbours, there is generally no right to privacy. A householder who feels their privacy is being violated should consider investing in a higher fence, a tree or hedge, curtains or soundproofing. Many alterations, such as fencing or soundproofing, need to be approved by the local council or building authority (see Fences and Building ).

Use of land

Sometimes one neighbour objects to the way another neighbour uses or proposes to use their land. Common complaints concern the type, size or colour of buildings. These objections often arise because a neighbour believes the building is or will:
  • be out of character with or different from others in the area and that it may lower the land values
  • be too tall, block the sun, obstruct the view or, even though it is on the other side of the boundary, be too close
  • damage their property during construction
  • cause parking problems.

Where there is no private agreement, a letter of complaint could be lodged with the Building Advisory Services Branch at the Department of Lands, Planning and the Environment (see Contact points). If unsuccessful, a complainant could take legal action but should seek legal advice before doing so because this area of law is quite complex. A complainant should also weigh up the costs of an action against any benefit they may receive.

In some situations, a person's action or proposed action is contrary to an existing private right held by the adjoining owner. These rights usually arise by agreement, such as one made between previous owners, in the form of easements and covenants which appear on the land title documents. For example, if there is an agreement between a number of landowners not to put up a certain type of fence, one adjoining owner will have a private right against another.

Another agreement may ensure open access to light and air and thus prevent building on a certain part of a block of land.

All land owners enjoy easements of support. An owner or occupier cannot do something on their land that will remove the support for a wall on their neighbour's land - see the Law of Property Act 2000 (NT).

If these types of private rights are infringed, a person may seek compensation or a court order to stop the offending activity.

The Planning Act 1999 (NT) also allows a person to complain to the Development Consent Authority if a neighbour puts their property to a use not permitted by the relevant zoning laws. Those seeking to make a complaint should contact the Authority (see Contact points).

Where a neighbour continues to use their land in a particular way, even though that use does not have the approval of the Development Consent Authority, and no action has been taken to prevent the illegal use, a complaint can be made to the Ombudsman. All complaints about local councils or government departments should be referred to the Ombudsman (see Complaints against government administration ).

Community Justice Centre - a way to work it out

The Community Justice Centre (CJC) provides mediation services to the community to help people resolve their own disputes without potentially costly legal action. The service is free, confidential, voluntary, timely and easy to use. The NT Community Justice Centre is legislated for within the Community Justice Centre Act 2005 (NT).

Mediation is a way of helping people settle a dispute without having to go to Court and commonly used in the following types of disputes from escalation:
  • neighbourhood nuisance (noise, trees, fences, pets, drainage)
  • between members of a club, committee or incorporated Associations
  • antisocial behaviour and visitors

Attending mediation allows parties in dispute to have a say in the outcome and come up with their own solutions to the problem. It provides a way of settling a dispute without legal action, which can be time consuming, and expensive. This means savings in time, legal fees, court costs and sustainable outcomes for you and the whole community. It also frees the Court system to concentrate on problems that require determination by an outside party.

For more information please contact the Community Justice Centre on 1800 000 473, email cjc@nt.gov.au or visit in person at Level 1 Zone B Nichols Place corner of Cavenagh and Bennett Street, Darwin 0800.

(See also Alternative dispute resolution)

Boundaries

The law covering boundaries is found in the Licensed Surveyors Act 1983 (NT).

A dispute regarding the position of a boundary can usually be resolved by a licensed surveyor. A surveyor marks a boundary on the ground or existing structures, using the land title documents as a guide. Once land is surveyed, any person who moves or removes a survey peg commits an offence, and is liable to a fine of up to $11,000. See Section 62 of the Licensed Surveyors Act 1983 (NT).

If a river or creek runs between adjoining properties, the centre of the creek is usually the boundary and so subject to change if the creek gradually cuts a new course. The true boundary of a property is set out in its land title. Generally, an incorrectly positioned dividing fence has no effect on ownership rights to the land.

Many problems or disputes between neighbours occur because people, animals or objects cross the boundary between adjoining properties.

Entry of people

In most circumstances the owner or tenant of land has the right to refuse permission to anyone wishing to enter the land. The person with the right to deny access to land is referred to as the occupier.

Though some entrants to a person's land are allowed, a person entering land against the occupier's will can be stopped and, in some cases, may be required to pay compensation.

A person given permission by the owner to come onto land is referred to as an invitee. Normally, permission can be withdrawn at any time, after which, the person is obliged to leave immediately or be considered a trespasser.

In some situations, permission to enter can be implied. For example, there is implied permission, known as licence, to enter land to knock on a front door or deliver goods. If building or repairing a fence, a neighbour and their workers have an implied right of entry for that purpose (see Fences ).

There is no implied permission to enter a neighbour's land to retrieve an object that has crossed the boundary, such as a ball, a kite or an animal. Express permission must be obtained by calling out, telephoning or knocking on the door (see Entry of objects ).

Easements

A right of way across private property is called an easement. For example, an easement would be said to exist if, in a rural area, a block has no public road access and is hemmed in on all sides by other landowners. A road through one of these private properties may be recorded as an easement. If a new road is built through another adjoining property, and both owners agree, the previous easement may be ended. A neighbour who has a right of way is limited to simply crossing the land; no other use of the land is permitted. An easement is recorded on the certificate of title held at the Land Titles Office, and can usually only be ended by the agreement of both adjoining landowners.

Trespass to premises

The offence of trespass to premises is created by the Trespass Act 1987 (NT). The offence covers unauthorised entry to buildings, caravans, dwelling places, gardens, yards, vehicles, vessels or aircraft. A person who enters an unlocked house may be charged with both trespassing and breaking and entering, depending on the circumstances.

The Trespass Act 1987 (NT) allows an occupier of enclosed premises to regulate access to their property. An occupier or a member of the police force can direct a person to leave a place, and warn a person who has entered to stay away. The trespasser can be shown the way out or, if they refuse to leave, forcibly removed by the occupier, but not with greater force than is reasonably necessary. Too much force could constitute an assault, allowing the trespasser to sue the occupier. An occupier should avoid the risk of legal action by calling the police if a trespasser refuses to leave.

Before a successful prosecution can occur, a person who has come onto the premises at an earlier time must be notified not to return to the property they have been asked to leave. If a notice is ignored, an offence is committed. Signs such as 'No Trespassing' or 'Trespassers will be Prosecuted' do not on their own constitute a sufficient warning. A warning must be verbal or written and given to an individual after they first trespass - see Section 9 of the Trespass Act 1987 (NT).

If a person continues to trespass or returns after a direction to leave or warning to stay off, the police are required to give another warning. If that warning is ignored, the trespasser can be arrested - see Section 10 of the Trespass Act 1987 (NT).

Any person who enters land without permission or who refuses to leave after the original permission is withdrawn is usually a trespasser. A person is not a trespasser if they accidentally fall or are pushed onto someone's land.

The maximum penalty for trespass is a $2200 fine and six months imprisonment - see Section 5 of the Trespass Act 1987 (NT). In addition an occupier may sue a trespasser for compensation for any damage they cause. However, such action is rarely taken because, usually, the little damage caused by trespass rarely warrants the time and expense of such legal action.

If a person repeatedly trespasses or seems likely to do so, the occupier can seek from the Supreme Court an order called an injunction, which prevents them from doing it again. The procedure is expensive and complex and probably should only be used if the trespass is of significant proportions, such as if army tanks were to come through a property. Only in urgent cases, when the repeated trespass is serious, can an injunction be obtained quickly. An urgently obtained injunction is referred to as an interim injunction. In less serious situations, where action could be considered a breach of the peace, a bond to keep the peace may be appropriate.

In some circumstances, police and certain others are empowered to enter land without the occupier's permission (see Criminal proceedings ).

Trespass to prohibited land

The Trespass Act 1987 (NT) also creates the offence of trespass to prohibited land. Prohibited land includes Crown land, land occupied by the NT or Federal Government, or land occupied by a statutory corporation, such as Telstra. Prohibited land must display a notice written in English, explaining that trespassing is prohibited.

Trespass occurs when a person enters prohibited land without authorisation, justification or excuse. Not seeing a notice or not wilfully trespassing can be used as defence. A hunter who trespasses when in pursuit of game might use such a defence. The maximum penalty for this offence is a $2200 fine - see Section 6 of the Trespass Act 1987 (NT).

Entry of objects

In most cases, a person who wants to put an object on someone else's land must gain the occupier's permission. Normally, permission can be withdrawn at any time and the person who owns or controls the rejected object must remove it as soon as reasonably possible. Failure to do so constitutes a trespass, which is normally dealt with by civil action in the Local Court.

A person who has left an object on someone's land with permission may, under the law, have an implied permission to retrieve it. Of course, damage should not be caused in retrieving the object. If a dispute arises, the person retrieving the goods should leave and obtain legal advice.

The entry without permission of an object onto, under or over a person's land (aircraft usually have implied permission) may be considered:
  • unintentional and not meant to cause damage; a ball accidentally tossed over a fence would be an example
  • intentional and meant to cause damage; a stone or ball thrown at a neighbour's house would be an example and would constitute trespass
  • unintentional but causing continual damage; water from pipes, smoke and ashes from a fire would be examples and might constitute nuisance
  • caused by carelessness or negligence; an old tree falling or unsecured roof tiles would be examples.

In these situations the occupier may:
  • return the object, which would be the appropriate action where no damage is done and the object is not likely to enter frequently
  • keep the object where damage has been done, and request compensation for the damage from the neighbour (the object must not be destroyed and must be returned when compensation is paid)
  • sue the person who committed the trespass to obtain compensation, a pointless action if little or no damage has been done
  • obtain a court order injunction forbidding further trespass (see Trespass to premises).

A person who has accidentally thrown a ball or some other piece of property into their neighbour's yard should get the neighbour's permission before they retrieve it. If the neighbour refuses to give permission, the person should seek legal advice. It may be cheaper to buy a new ball than to take the legal action necessary to recover it.

Entry of animals

The rules about animals entering premises without the occupier's authority are the same as the rules governing objects (see above). For the purposes of trespass, the definition of animals includes birds, reptiles, fish and insects. A person who has a problem with an animal continually coming onto their property, such as a cat, should make a complaint to the local council.

A person who has had their animal killed by another person may be able to take civil action against that person, making a claim for the value of the animal (see Injuring and killing dogs ). However, such legal action can be time consuming and expensive. It may be better to try to resolve the issue through mediation (see Alternative dispute resolution ).

Permission must be obtained before an animal can be left on another person's property. Once permission is withdrawn, the animal must be removed immediately or its owner can be sued for trespass.

Water

Water flowing naturally from one person's land to a neighbour's land, for example due to rain, flood or gradient, does not generally justify legal action. However, a person who causes water to flow onto a neighbour's land with or without permission may be liable for any resulting damage.

If the flow of water occurs without the occupier's permission and is caused directly or indirectly by the neighbour's activities, the occupier may have a legal right to sue the neighbour to prevent recurrence and to seek compensation for any damage.

Some situations that give good cause to sue include:
  • where the flow is intentional, such as when a neighbour deliberately directs a hose onto the adjacent owner's land.
  • where the flow occurs as a result of another activity, for example, through a fixed garden sprinkler, overflowing drains and downpipes, running taps, modification of normal water courses or the cementing of large areas. In cases where the flow is accidental and not caused by carelessness, such as overflow from a trench, hole, dam or tank, the affected occupier has no right to sue unless the neighbour was negligent - water can be deliberately stored for a worthwhile purpose in the ordinary use of land.
  • where the flow is caused by negligence and causes damage to the occupier's premises - carelessness in the construction of a tank or dam would be an example.

Problems can also arise where neighbours share a creek, lake or other waterways and one person's activities pollute the water. A complaint should be made to the local council that has power to control water pollution (see Pollution ).

Fences

The law governing the construction and repair of dividing fences is contained in the Fences Act 1972 (NT). Often neighbours come to agreement over the construction of or repairs to dividing fences. However, neighbours can't always agree. If you can't talk about the problem directly with your neighbour it can help to get a mediator to assist. A mediator will not decide who is right or wrong and they cannot impose a decision on you like a court can but will support both parties work on an agreed outcome before escalation. For more information about mediation, contact the Community Justice Centre on 1800 000 473.

If you are unable to reach an agreement with your neighbour the Fences Act 1972 (NT) sets out the formal procedures that need to be followed when a person wants to force their neighbour to help pay for a dividing fence.

Under the Fences Act 1972 (NT) an 'owner' is considered to be the owner of the land or an occupier who has the owner's permission to erect or maintain fences on the land. A mortgagee, such as a bank, is not an owner - see Section 5 of the Fences Act 1972 (NT).

A 'fence' is defined as a structure of posts and boards, palings, rails, galvanised iron, metal or wire, or a wall, ditch or embankment or a combination of any of these enclosing or bounding land. The definition includes any foundation, foundation wall or support reasonably necessary for the support and maintenance of a building, but does not include a wall that is part of a building - see Section 5 of the Fences Act 1972 (NT).

A 'dividing fence' is a fence dividing the land of adjoining owners. Normally, a dividing fence should be erected on the boundary, although a fence is still considered to be a dividing fence when it does not lie exactly along the boundary. An owner can put up a fence inside their boundary without the consent of their neighbour. However, if the fence is built close and parallel to the boundary, future problems might result if a neighbour makes use of the resulting extra strip of land.

A dividing fence is not legally necessary if neither owner wants one. However, if either owner wants a dividing fence, both are legally obliged to contribute to its construction.

Avoiding problems

Neighbours can often avoid disputes over fences by discussing the issue before taking action. Verbal agreements are a good start, but these should be formalised in writing because they can be hard to prove should problems arise.

If you can't talk about the problem with your neighbour it can help to get a mediator to assist. A mediator will not decide who is right or wrong and they cannot impose a decision on you like a court can but will support both parties work on an agreed outcome before escalation. For more information about mediation, contact the Community Justice Centre on 1800 000 473.

A written agreement is good but, where such an agreement does not resolve the problem or where no agreement can be reached, the formal procedures in the Fences Act 1972 (NT) should be followed (see The formal procedures ).

A new fence where no fence exists

Where no fence exists between adjoining properties, and one owner wants a fence erected, both neighbours are liable for the costs of construction. Ideally the two neighbours should get together to make decisions about materials, budget, contractors and so on. If you can't talk about the problem directly with your neighbour it can help to get a mediator to assist. A mediator will not decide who is right or wrong and they cannot impose a decision on you like a court can but will support both parties work on an agreed outcome before escalation. For more information about mediation, contact the Community Justice Centre on 1800 000 473. A written agreement setting down the details should then be made. If no agreement can be reached, the party seeking to erect the fence should then follow the formal procedures set out below.

Where one owner is prepared to pay the full cost of erecting a new fence, the adjoining owner's permission is not required. However, the new fence must not cause any nuisance, and a neighbour not happy with it can seek a court order to have it removed and replaced by a more standard variety at the cost of the owner who constructed it.

Replacing an existing fence

If the cost of repairs is equal to or more than the cost of replacing the fence completely, a replacement fence would be appropriate.

Repairs

Where one owner is prepared to pay the full cost of repairing a fence, the adjoining owner's permission is not required.

Unless otherwise agreed by the parties, one owner can't demand a contribution if they repair a fence with a method or materials that makes it different from the original. To determine whether a fence is different from the original, a court would consider the materials used, the height of the fence and width (if applicable), as well as the general look. For example, it would be difficult for the fence repairer to claim a contribution for inserting a brick section in the middle of a mesh fence.

Where damage to a fence is caused intentionally or negligently, for example, when one neighbour drives a car into it or allows a tree limb to fall on it, that neighbour must repair the damage or restore the fence.

Fences that adjoin Crown land

Where a property adjoins Crown land, the Crown bears no responsibility for the costs of constructing or maintaining a dividing fence. If the Crown land is sold to a private owner after a fence has been built, the person who paid for its construction has a right to recover from the new owner half of its value as assessed at the date of the sale of the Crown land.

Every person engaged in the construction or repair of a fence may at all reasonable times enter the land adjoining the fence for that purpose. This includes land within the meaning of the Aboriginal Land Act 1978 (NT), even where a person entering that land for repairs does not hold a permit under the Fences Act 1972 (NT). Any unreasonable damage to vegetation that occurs in the process may be made the subject of a civil claim for damages.

Fence construction must comply with the relevant building codes so prior to construction the Building Advisory Services Branch at the Department of Infrastructure, Planning and Environment should be contacted to determine whether any kind of approval is required (see Building ).

Fences that adjoin flats or units or government housing

As already stated, both neighbours are responsible for a dividing fence. Where a property borders a block of flats, the relevant neighbour is the body corporate. A person should approach either the managing agents or the secretary of the body corporate.

Where the property borders government housing, whether flats or a house, the appropriate body is the NT Government Department of Housing (see Contact points). In this situation, it is advisable to liaise with the tenant to find out the appropriate person to contact in the department.

The formal procedures

The formal procedures for organising payment for the erection or repair of an adjoining fence are outlined in the Fences Act 1972 (NT). The procedure begins by giving proper notice to neighbours by sending them a letter outlining the intention to put up a new fence or make repairs.

A letter must contain details about:
  • the proposed work, such as the type of fence intended for erection or that part of the fence requiring repair
  • the estimated cost
  • the proposal for carrying out the work
  • the contribution expected from each party.

These notices must be served; that is, delivered in person or by post to the owner(s) of the adjoining land. A copy of all notices served on neighbours should be kept.

If neighbours are on friendly terms, there is no reason why initial discussions can't take place before a formal notice is sent. If neighbours haven't discussed the issue, a formal notice can prompt them into getting together and discussing the matter. If they can't agree about the construction of a new fence, it may be necessary to take the matter to the Local Court for a decision (see Getting a court order ).

If repairs to an existing fence are needed, and no agreement has been reached a month after the notice has been served, the party seeking the repairs can carry them out and recover from their neighbour half of the costs as a debt (see Debts ).

Where a fence is damaged or destroyed by natural processes, fire or accident, the fence can be repaired immediately, without the need for a Notice to Repair, and the party who paid for the repairs is entitled to recover half the cost from the neighbour.

Where a neighbour has damaged a fence intentionally or negligently, repairs must be done within one month. If they're not, the other neighbour may repair the damage or restore the fence and recover all reasonable costs from the negligent party (see Debts ).

Getting a court order

If neighbours have not reached agreement about the construction of a proposed fence or the repair of an existing one within one month after a notice has been served, either owner may apply to the Local Court for an order. The court decides:
  • whether the construction or repair of the fence is reasonably required and what repairs are appropriate
  • whether an existing fence should be demolished and a new fence constructed
  • what part of the fence is to be constructed or repaired by each of the owners
  • the time within which the fence is to be constructed or repaired
  • which line the fence should follow
  • in what proportion the cost of the construction or repairs should be divided
  • the amount of compensation to be paid by one owner to the other if any loss of land is involved
  • the kind of fence to be constructed or the nature of the repairs, taking into account the kind of fence usually erected in that location and neighbourhood and whether it is usual to erect a fence in that location
  • any other relevant matter.

Generally, a court divides the cost of construction or repair equally between the parties, but in special circumstances may order costs be divided disproportionately.

A court can still make an order allowing a fence to be constructed if the other neighbour can't be located.

Where a party to an agreement or a court order fails to pay in the time allowed in the agreement or order or within six months, whichever is longer, the other party can take action to recover the money owed (see Debts ).

Noise

Noise frequently causes neighbourhood disputes. Typically, neighbours argue over loud music, air-conditioners, lawn mowers, manufacturing machinery, unattended burglar alarms, parties and barking dogs (see Dogs and other animals ). A person upset by a neighbour's noise should first try talking to the neighbour, requesting they stop or reduce the noise or restrict it to certain hours of the day.

Home noise in residential areas, such as music from a hi-fi unit or the growling of a lawn mower, is permitted so long as the level and duration of the noise is not unreasonable.If you can't talk about the problem directly with your neighbour it can help to get a mediator to assist. A mediator will not decide who is right or wrong and they cannot impose a decision on you like a court can but will support both parties work on an agreed outcome before escalation. For more information about mediation, contact the Community Justice Centre on 1800 000 473

If neighbours can't agree on arrangements, a complaint to police might be appropriate. If the police consider the noise to be 'undue', they can direct the neighbour to stop making it. A neighbour who doesn't comply within ten minutes is guilty of an offence and liable to be fined up to $2000 see Section 53B of the Summary Offences Act 1995 (NT).

For those who don't want to complain to police:
  • If feel you can't talk about the problem directly with your neighbour it can help to get a mediator to assist. A mediator will not decide who is right or wrong and they cannot impose a decision on you like a court can but will support both parties work on an agreed outcome before escalation. For more information about mediation, contact the Community Justice Centre on 1800 000 473.
  • apply to the Local Court for a noise abatement order under Section 53D of the Summary Offences Act 1995 (NT). A Noise Abatement form, available from the court, must be completed and a copy served on the neighbour, thereby summoning them to court. A $25 filing fee applies, and this includes service costs.

At court a person can represent themselves or hire a lawyer (see Representing yourself and Dealing with lawyers). If the court finds the complaint justified, it can order the neighbour to stop or reduce the noise, or regulate the hours the noise can be made. A fine of $2000 can be levied for a breach of the order. To prove undue noise, a person should keep a record of the time, type and level of the noise.

Noise is included in the definitions of contaminant and pollution in the Waste Management and Pollution Control Act 1998 (NT), therefore the Act applies generally to the regulation of noise. In particular, the Waste Management and Pollution Control Act 1998 (NT) creates the offence of causing an environmental nuisance. An environmental nuisance is defined as noise, smoke, dust, fumes or odour that has as an adverse effect on the enjoyment of an area. Depending on the source of the noise a complaint may be made to the Waste Management Operations Group in the Office of Environment in the Department of Department of Natural Resources, Environment and the Arts, or the Pollution Response Line (1800 064 567). A maximum penalty of $5000 applies or the local council. Heavy industry noise should be referred to the former while barking dogs would be referred to the latter if the council has dog by-laws. (see Pollution).

A civil claim for nuisance may also be made against the neighbour if the noise unreasonably and substantially interferes with the complainant's use and enjoyment of their home. An example would be a person who was continually causing substantial noise in a work shed in the early hours of the morning. A rooster might also qualify. The court would need proof that the noise was a nuisance, and would consider when the noise occurred, how loud it was and how it affected the complainant. A court could order the neighbour to stop the noise and to pay compensation to the complainant.

Air pollution

Disputes often arise between neighbours over smoke from chimneys or incinerators, burning off in backyards, hot air from air-conditioner exhausts, smells caused by animals and birds, chemical smells from industrial premises and so on. The local council or Environmental Defenders Office (see Contact points) are the appropriate bodies to contact for information and advice about the rules that regulate these activities, and what can be done if there is a problem (see Pollution ).

Trees

Except for laws that prohibit the growing of certain plants, such as cannabis (marijuana), and those that control some species regarded as pests, there is no legislation specific to trees or shrubs. If you can't talk about the problem directly with your neighbour it can help to get a mediator to assist. A mediator will not decide who is right or wrong and they cannot impose a decision on you like a court can but will support both parties to work on an agreed outcome before escalation. For more information about mediation, contact the Community Justice Centre on 1800 000 473.

The laws about neighbours' rights and responsibilities with regard to trees are found in common law cases about trespassing and nuisance causing trees and negligent tree owners.

A tree branch or root that intrudes in, on or over a neighbour's land is trespassing, and the neighbour has the right to remove the offending limbs at their own cost. The neighbour doesn't have the right to enter the owner's land and can't remove any part of the root or branch that is not on, in or over their property. Branches and roots are technically the property of the tree owner and should, with care, be returned. The cost of having the branch or roots removed can't be claimed unless the neighbour agrees or a court orders these costs be paid by them.

For a tree or part of it to be considered a nuisance, it must be shown to cause an ongoing, unreasonable interference with a neighbour's enjoyment of their property. If this occurs, the neighbour can remove any trespassing limb or ask a court to order the owner to remove the root, branch or, in some circumstances, the whole tree. If the intruding roots or branches have caused damage to the neighbour's property by, for example, cracking underground pipes, 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 and the damage done is under $25,000, the neighbour can take the matter to the NT Civil Appeals Tribunal (NTCAT) as a small claim. If the damage is over $25,000, an ordinary claim can be lodged in the Local Court (see Debts ).

To prove a tree owner negligent, the neighbour would have to show all of the following:
  • that damage occurred
  • that a reasonable person could foresee that damage was likely
  • that reasonable care was not taken to avoid it.

Negligence in this context means that damage caused to a neighbour or their property by falling trees or branches is rarely actionable. A neighbour seeking to take action would have to prove that the tree or branch was in a dangerous condition and could fall and cause damage. The neighbour would probably need to show that the danger had previously been drawn to the owner's attention and they had failed to take action. An opinion from an expert about the tree's condition might assist a person's case.

Tree owners neither own nor have responsibility for leaves falling on their neighbour's land, unless the leaves cause damage or injury and have fallen from overhanging branches. Some leaves are, for example, poisonous to animals.

Potentially dangerous or unhealthy situations

Sometimes a neighbour does or has something on their land that would be dangerous or damaging if it were to cross the boundary. The presence of this something may constitute a potential or actual nuisance. Examples might be a tree threatening to fall or a wall in a dangerous state of disrepair.

Some neighbours use or accumulate objects on their land. Fire, explosives, flammable substances, substances that can give off harmful gases, stored water and electricity are common examples. If such a thing would not be on a property in the ordinary use of the land and it crosses a boundary, the person may be liable for any damage, even if the object is not inherently dangerous and they aren't the owner. If a person becomes aware that dangerous objects are on a neighbour's land, they should discuss the problem with the neighbour and ask them to remove them. If that proves to be ineffective, they should contact their local council or the Environmental Defender's Office (see Contact points) to obtain further advice.

A person who stores an object for a reason in keeping with the ordinary use of the land can't be sued by a neighbour for its accidental escape unless that person is careless or negligent. For example, if a drum of petrol accidentally leaks into a neighbour's fish pond killing the fish, no action could be taken unless the owner of the petrol knew the drum had a hole in it or did not keep it stored safely. This is a technical area of law and legal advice should be sought.

A person concerned about potentially dangerous substances on a neighbouring property should inform their local council before taking any other action (see Pollution ). Local councils have wide powers to regulate the keeping of dangerous objects or substances. Councils can also order owners to remove vegetation likely to harbour rubbish or vermin.

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