What is a tree?
This seems like a fairly simple question. But when it comes to disputes with your neighbour involving "trees" there seems to be a plethora of definitions.
Photo by Jaime Spaniol on Unsplash
According to The Victorian Law Reform Commission there are multiple definitions of trees which, when dealing with disputes, require an accurate definition.
1) According to the Law Reforms report, the word ‘tree’ in this report denotes all vegetation that may cause a dispute between neighbours.
Disputes can arise over a wide variety of vegetation, including trees, grasses, bushes, creepers and vines, and even dead trees
2) The Macquarie Dictionary defines a tree as ‘a perennial plant having a permanent woody, self-supporting main stem or trunk, usually growing to a considerable height, and usually developing branches at some distance from the ground’. It defines ‘vegetation’ as ‘plants collectively; the plant life of a particular region considered as a whole’.
3) The Forests Act 1958 (Vic) provides that a ‘tree or trees’ includes ‘trees shrubs bushes seedlings saplings and reshoots whether alive or dead’
4) The Country Fire Authority Act 1958 (Vic) defines ‘scrub or vegetation’ to include ‘trees bushes plants and undergrowth of all kinds and sizes whether living or dead and whether standing or not standing, and also includes any part of any such trees bushes plants or undergrowth whether severed or not severed’.
5) At the local government level, trees are defined in different ways. The Melbourne City Council’s definition includes ‘the trunk, branches, canopy and root system of [a] tree’. Nillumbik Shire Council defines a tree as a ‘long lived woody perennial plant greater than (or usually greater than) 3 metres in height with one or relatively few main stems or trunks’.
New South Wales and Queensland have similar definitions in their tree dispute Acts.
The NSW Act defines a tree as ‘any woody perennial plant, any plant resembling a tree in form and size, and any other plant prescribed by the regulations’. Additional problematic vegetation has since been prescribed in regulation.
Bamboo, technically a type of grass, was originally excluded from the definition of ‘tree’ under the NSW Act but since 2007 has been prescribed under the NSW Regulations.
Vines were also originally excluded from the definition of ‘tree’ in the NSW Act. However, following statutory review of the Act by the New South Wales Government in 2009, it was decided that vines can cause damage to, for example, ‘the paintwork on the outside of a house, or cause water damage by blocking a downpipe or drain’, or pose ‘a risk of personal injury’. The review concluded that there was no reason why disputes relating to vines should have to be resolved by ‘the more complicated procedure in nuisance and recommended that vines be declared a prescribed plant under the NSW Regulations. The NSW Regulations now prescribe ‘any type of vine’.
The Queensland Act defines a tree as ‘any woody perennial plant’ or ‘any plant resembling a tree in form and size’ such as ‘bamboo, banana plant, palm and cactus’. A tree also includes a bare trunk, a stump rooted in the land and a dead tree.
In its statutory review of the Queensland Act, the Queensland Law Reform Commission found that ‘tree’ is currently ‘widely and clearly’ defined. However, the QLRC recommended that the definition should be amended to include ‘root or the roots of any living or dead tree’ because roots are an integral part of the tree and can cause disputes. This recommendation has not been implemented.
In the Tasmanian Act, the term ‘plant’ is preferred over ‘tree’. A plant is defined as ‘any plant or part of a plant and includes:
• a tree
• a hedge or group of plants
• fruits, seeds, leaves or flowers, of a plant
• a bare trunk
• a stump rooted in the land
• any root of a plant
• a dead plant.
The Commission’s conclusions—definition of ‘tree’
‘Tree’ should be defined by its common meaning of a ‘woody perennial plant’. Height or age (for example, ‘long-lived’) descriptors are not recommended because these characteristics vary throughout existing definitions and literature. Whether a tree is considered large or old is also subjective and will vary too greatly depending on the vegetation that is commonly found in the area. Any height or age requirements may unfairly exclude people from seeking legal relief. Additionally, the vitality of a tree should not matter because trees that are dying or dead may still impact on people’s land and safety. These trees may also hold important cultural, heritage and environmental value.
‘Tree’ should explicitly include vines, cacti, palms and bamboo. The term ‘pachycaul’ is not widely understood by the community and a more suitable approach would be to list further particular species in regulations for clarity.
For reasons of fairness and flexibility, any other vegetation that ‘resembles a tree in form and size should be included. This takes into account mallee trees that do not meet any technical requirements of a singular tree trunk, certain species of shrubs known to grow quite large, and also allows the decision maker discretion. This would also encompass a ‘pachycaul’.
Hedges should not be included, as this represents a style of planting, rather than a species of vegetation. Any plants or vegetation in the form of a hedge will be included irrespective of how they are styled if they meet the definition.
In addition, vegetation classified as a noxious weed should be captured under the new Act if it otherwise meets the definition of ‘tree’ for example, ‘any plant that resembles a tree in form and size’.
The definition of ‘tree’ should include all parts of a tree, whether joined to a main structure or separate. This would include roots and bare trunks. In addition, trees that have been partially or wholly removed should be included. An affected neighbour may still wish to seek orders for payment of the cost of repairs to their property even if the tree has been wholly removed.
If you are confused by the wide range of definitions and rules it is worthwhile engaging the services of an AQF 5 accredited consulting arborist.
Greenwood Consulting has provided arboricultural reports for town planners, councils and residents throughout Melbourne and Victoria for over 20 years.