WINTER & NUISANCE WITH TREES AND LEAVES!
Good fences make good neighbors, so the adage goes. But often more than a fence is needed to maintain good neighborly relations! Very few of us want to kick up a fuss about a plant that is growing over our fence which we have to cut back frequently, or the fact that your neighbor’s mulberry tree is dropping berries all over your driveway. Rightly so as these irritations may seem trivial when weighed against the value of maintaining civil relations with those living in close proximity to you.
The difficulty, however, arises when the actions of our neighbors, whether direct or indirect, make us suffer some kind of loss, whether this be a loss of the use and enjoyment of our property or a monetary loss.
In terms of our (private nuisance) law, every property owner has a right to unimpeded enjoyment of his land. So does the neighboring owner, meaning that the latter’s health, well-being or comfort in the occupation of his land must not be interfered with. Clearly a conflict between these two rights is possible and when courts are presented with such disputes, a balance of the interests of the two parties is considered. Some particular instances are described hereafter.
Plants growing on neighbor’s land
The case of Smith v Basson dealt with encroachment of bamboo trees planted that were planted as a division between two properties. In this case, it was confirmed that if neighbor B plants any form of vegetation on neighbor A’s property, then those plants become a part of neighbor A’s property. Accordingly, neighbor A may do with those plants as he pleases, which includes having them removed.
Overhanging branches and roots causing damage
In instances where branches overhang from the trees of a neighboring property, neighbor A may request that neighbor B remove those branches and if neighbor B refuses, then neighbor A may have the branches removed and claim the cost of removal from neighbor A.
In Malherbe v Ceres Municipality (1951)the Court confirmed that if the branches of your neighbor’s tree overhang onto your property, or where the roots grown onto your property you may chop these off at the boundary wall provided you have asked your neighbor to do so and he refused. Your neighbor will be liable for the costs incurred.
The 2003 matter of Vogel v Crewe is also significant in this regard as environmental concerns were included in the assessment of what was objectively speaking, reasonable. Vogel and Crewe were neighbors since 1993 and in 1995 they jointly erected a concrete fence between their properties. There were altogether 21 trees on Crewe’s side of the property, planted within 2 meters of the boundary wall. The good neighborly relations which existed between the two parties were gradually being marred by these trees as Vogel was of the opinion that the trees were causing a nuisance to him. Vogel applied to Court for an order to have the trees removed, alleging that the trees had given rise to problems caused by overhanging branches and encroaching root systems. These, he complained, were blocking gutters and the sewage system, shedding leaves in his swimming pool and surrounding areas and were also damaging the concrete wall and his parking area.
The Court confirmed that the test to be applied in deciding whether the nuisance complained of is actionable (in other words, is worthy to be determined by means of a Court action), is the objective reasonableness test which seeks to strike a balance between the competing interests of the parties. It is an objective reasonableness enquiry, the test requiring the complaining party to show that ”the inconvenience complained of is in fact more than fanciful, more than mere delicacy or fastidiousness; that it is inconvenience materially interfering with the ordinary comfort, physically of human existence not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions.”
Applying these principles, the Court indicated that it is also important to bear in mind that trees form an essential part of our human environment, not only in terms of giving us aesthetic pleasure, but also functionally in the provision of shade and oxygen and environmental soundness. And, like any other living thing, trees also require in return for pleasure provided a certain amount of effort and tolerance.
Based on the evidence before it, the Court dismissed the application as:
1. it was not shown that the concrete wall was seriously damaged and could not be easily repaired, rather than remove the trees. No case had been made out why the removal of the trees was necessary;
2. regarding the overhanging branches, the Court found that the problem could be resolved by way of Vogel requesting Crewe to prune his trees. If Crewe should refuse, Vogel will then be entitled to cut off the overhanging branches, in line with the boundary;
3. in respect of the leaves in the swimming pool and gutters the Court indicated that although the leaves may have been from these particular trees, they were not exclusively from these trees as there were many other large trees in the area and specifically also on Vogel’s property; and
4. as far as the blockage of the sewage system was concerned, the Court pointed out that no evidence was presented before it to prove the trees were the cause.
One may think the Court’s decision in the Vogel v Crewe matter was perhaps too “environmentally friendly.”This is however not the case as a proper analysis of the Court’s judgment shows that the Court’s referral to the importance of protecting our environment also served the purpose of illustrating the competing interests of Vogel and Crewe and the degree of inconvenience involved, were not serious enough to warrant the removal of the trees. In any event, Vogel’s case on the merits was weak as he did not have conclusive evidence that the damage to the parking area was caused by the root system of the trees; that the blockage of his sewage system was caused by the leaves of the trees; or that the leaves in the swimming pool and gutters were exclusively from his neighbor’s trees.)
LESSONS TO LEARN
Less drastic measures could be taken to deal with problems relating to the overhanging branches, as the owner could simply request that his neighbor prune the trees and upon his neighbor’s refusal, would be entitled to cut off the overhanging branches in line with the boundary. (This should not be seen as an encouragement to neighbors to take the law into their own hands as our law does make provision that the owner of an adjacent property may cut overhanging branches himself only after he has requested his neighbor to do so and he has refused. The branches can only be cut in line with the boundary.) The Court further indicated that the concrete wall was not severely damaged and the parties could repair the wall rather than remove the trees.
Therefore, if you approach the Court and present a convincing case why the removal of trees is necessary, the Court will grant you the relief sought. You must therefore be able to convince the Court why the removal of the trees should weigh heavier than your neighbor’s right to retain them.
A very important development which this case brought about, is that the Court highlighted the changed times we are living in and the increasing awareness of the importance of protecting our environment which means that even if the inconvenience and damages are apparent, the Courts will not hastily decide that trees be removed if there are other less drastic measures which could be taken to deal with the problem rather than removing the trees.
TREES ON COUNCIL OWNED LAND
The City of Cape Town’s Tree Management Policy (2014) mentions that due to the large number of trees in the municipality’s jurisdiction, the total management responsibility cannot practically reside only with one City department. It is accepted that City Parks is the lead department responsible for tree management including streetscapes and avenue planting, cluster planting, historic trees and all other occurrences of trees within the City. However, trees occur in various places and therefore the respective land “owner” departments in the City must manage the trees within their areas of responsibility.
Trees on city-owned land that has been leased out, is the responsibility of the lessee, but approval for any work must be obtained from City Parks in writing.
Clause 220.127.116.11 of the policy mentions that trees that are planted on City land that cause damage to private property must be reported to City parks and claims lodged with City Insurance Section for investigation.
Requests for pruning or removal of trees on municipal property shall be done by City Parks or its appointed service providers. Requests therefore must be directed to the Area Manager for City Parks for the particular area where the tree is located.