This Act creates a legal process for neighbours to resolve disputes about plants (trees, hedges, roots, stumps). It allocates duties to landowners to cut overhanging branches, sets notice and access rules, lets affected landholders apply to the Tasmanian Civil and Administrative Tribunal for orders (work, entry, costs, compensation) and establishes penalties and a searchable orders database. It affects owners, occupiers, buyers, councils and government bodies and matters who pays for works, the evidentiary and procedural burdens, and tribunal discretion.
This Act sets out a statutory regime for resolving neighbourhood disputes about plants, by defining who is responsible for plants that affect other land, providing a stepped process for informal resolution, creating a procedure for issuing short-form branch removal notices, and establishing an adjudicative route to the Tasmanian Civil and Administrative Tribunal (the Appeal Tribunal) for contested matters. Mechanically the Act does the following.
Defines what counts as a plant and when land is "affected" by a plant (ss 4, 7). The definition of plant is broad, and includes trees, hedges, roots, stumps, dead plants and plant parts (s 4(1)-(2)). Land is affected if branches overhang, or if the plant has caused, is causing, or is likely within 12 months to cause serious injury, serious damage, or substantial, ongoing and unreasonable interference with use and enjoyment (s 7(1)). There are distance and particular-provision limits, for example a general 25 metre limit for non-specified effects (s 7(4)), and specified provisions for sunlight, solar panels and views (s 7(2)-(3)).
Allocates primary responsibilities to owners of land on which a plant is situated, including severing and removing overhanging branches and ensuring the plant does not cause serious injury, serious damage, or substantial, ongoing and unreasonable interference to other landholders (s 10). The Act makes these responsibilities statutory but expressly states that s 10 does not create a civil cause of action for breach of those responsibilities (s 10(3)).
Preserves some common law remedies while modifying their operation, notably preserving the common law right of abatement but allowing a person who removes part of a plant to choose whether to return that material to the plant’s landholder (s 12).
Current sections
Direct links to the current provisions in Neighbourhood Disputes About Plants Act 2017.
applicant means a person who makes an application;
application means an application under section 23(1) ;
cabling means the insertion of cables or wire into a plant for the purpose of ensuring the stability of the plant;
Crown land means land that is vested in the Crown and includes land granted in fee simple which has revested in the Crown by way of purchase or otherwise;
(a) a person who holds an office established under an Act and performs functions, under an Act, that relate to the regulation of plants; or
(b) a State authority that performs functions, under an Act, that relate to, include or require the regulation of plants; or
(c) a council;
landholder, in relation to land, means –
(a) an owner of the land; and
(b) an occupier of the land;
occupier, in relation to land, means a person who is entitled to the immediate possession and occupation of the land;
owner, in relation to land, means –
(a) every person who jointly or severally, whether at law or in equity, is entitled to the land for any estate in freehold in possession; or
(b) if the land is common property within the meaning of the Strata Titles Act 1998 – the body corporate formed under that Act in relation to the land; or
(c) if the land is held under a tenancy for life – the person who is the life tenant; or
(d) if the land is held under a lease for a term of not less than 99 years or for a term of not less than a period that is prescribed – the person who is the lessee of the land; or
(e) if the land is Crown land and is not land subject to a lease (other than a lease under the Residential Tenancy Act 1997 ) or a relevant licence – the Minister, authority or other person responsible for managing the land; or
(f) if the land is Crown land and is subject to a lease (other than a lease under the Residential Tenancy Act 1997 ) or a relevant licence – the holder of the lease or licence; or
(g) any other person who holds a prescribed interest in the land;
party, in relation to an application, means –
(a) the applicant; and
(b) the owner of the land on which is situated the plant to which the application relates; and
(c) any other person who is joined under section 29 as a party to the application;
State authority means a body or authority, whether incorporated or not, that –
(a) is established or constituted under a written law or under the royal prerogative; and
(b) is a body or authority which, or of which the governing authority, wholly or partly comprises a person or persons appointed by the Governor, a Minister or another State authority;
work, in relation to a plant, includes –
(a) severing and removing any part of the plant, including its branches or roots; and
(b) netting the plant; and
(c) attaching or removing cabling to a plant or land; and
(d) destroying the plant in any way (including by poisoning, uprooting, ringbarking or cutting down the plant) and removing the plant and every part of the plant.
(2) For the purposes of this Act, but subject to section 8 , a person who is an owner of land by virtue of paragraph (c) , (d) , (f) or (g) of the definition of owner in subsection (1) is only to be taken to be an owner of so much of that land as is land to which any of those paragraphs applies and is not to be taken to be an owner of so much of the area of land as is not land to which any of those paragraphs applies.
4
Meaning of plant and plant situated on land
4 Meaning of plant and plant situated on land
(1) In this Act –
plant means any plant or part of a plant.
(2) In this Act, plant includes –
(a) a tree; and
(b) a hedge or group of plants; and
(c) fruits, seeds, leaves, or flowers, of a plant; and
(d) a bare trunk; and
(e) a stump rooted in land; and
(f) any root of a plant; and
(g) a dead plant.
(3) Despite subsections (1) and (2) , plant does not include a member of a class of plants that is prescribed to be a class of plants to which this Act does not apply.
(4) For the purposes of this Act, a plant is situated on land if –
(a) the base of the trunk of the plant; or
(b) a place at which a stem of the plant connects with the roots of the plant –
is, or was, situated in whole or in part on the land.
5
Act does not apply to certain plants
5 Act does not apply to certain plants
(1) This Act does not apply to, or in relation to, a plant that is situated on –
(a) excluded land; or
(b) a farm within the meaning of the Primary Industry Activities Protection Act 1995 , if the plant is planted or maintained for a purpose that is necessary or desirable for the management or operation of the farm.
(2) This Act does not apply to, or in relation to, a plant that forms a fence in relation to which a notice may be issued under section 48 of theBoundary Fences Act 1908 .
(3) This Act does not apply to, or in relation to, plants planted or maintained –
(a) for the purpose of enabling the sale of the plant; or
(b) under an order of a court or tribunal other than an order for the purposes of this Act.
6
Act binds Crown
6 Act binds Crown
This Act binds the Crown in right of Tasmania and, so far as the legislative power of the Parliament permits, in all its other capacities.
7
When land is affected by plant
7 When land is affected by plant
(1) Subject to this section, for the purposes of this Act, land (affected land) is affected by a plant that is situated on another area of land if –
(a) branches of the plant overhang the affected land; or
(b) the plant has caused, is causing, or is likely within the next 12 months to cause –
(i) serious injury to a person on the affected land; or
(ii) serious damage to the affected land or any property on the affected land; or
(iii) substantial, ongoing and unreasonable interference with the use and enjoyment by a person of the affected land.
(2) Without limiting the generality of subsection (1)(b)(iii) , a plant may cause substantial, ongoing and unreasonable interference with the use and enjoyment by a person of affected land by virtue of causing sunlight to be severely obstructed from reaching –
(a) a window (including a window in a door) of a building on the affected land; or
(b) a solar photovoltaic panel, a solar collector for a solar hot water system, or a skylight, situated on a roof of a building on the affected land.
(3) Without limiting the generality of subsection (1)(b)(iii) , a plant may cause substantial, ongoing and unreasonable interference with the use and enjoyment by a person of affected land by virtue of causing a view from a dwelling on the affected land to be obstructed, but only if –
(a) the plant is at least 2.5 metres high; and
(b) the plant causes the view to be severely obstructed; and
(c) the person is an owner of the land and the view from the dwelling was not so obstructed when the person took possession of the affected land.
(4) For the purposes of this Act, land is not affected by a plant, other than as referred to in subsection (2) or (3) , if no part of the land is situated within 25 metres from –
(a) the base of the trunk of the plant; or
(b) a place at which a stem of the plant connects with the roots of the plant.
(5) For the purposes of this Act, land is not affected by a plant if the land is excluded land.
(6) For the avoidance of doubt, but subject to this section, land may be affected by a plant on other land even if the land does not adjoin the other land.
8
Where plant situated on more than one area of land
8 Where plant situated on more than one area of land
(1) If a plant is situated partly on one area of land (the first area of land) and also partly on another area of land (thesecond area of land) –
(a) the first area of land is to be taken to be affected by the plant as if the plant were situated wholly on the second area of land if, were the plant so situated, the first area of land would be taken under section 7 to be land affected by the plant, but is only to be so taken to be affected by the plant to the extent to which the plant is situated on the second area of land; and
(b) the second area of land is to be taken to be affected by the plant as if the plant were situated wholly on the first area of land if, were the plant so situated, the second area of land would be taken under section 7 to be land affected by the plant, but is only to be so taken to be affected by the plant to the extent to which the plant is situated on the first area of land.
(a) the owner of land on which a plant is situated is to be taken to include a reference to the owner of the first area of land and to the owner of the second area of land; and
(b) the landholder in relation to an area of land is to be taken to include a reference to the landholder in relation to the first area of land and to the landholder in relation to the second area of land –
and an order under that Division may be issued to both an owner of the first area of land and an owner of the second area of land, as if they were the joint owners of both areas of land, or to either an owner of the first area of land or an owner of the second area of land.
9
Meaning of excluded land
9 Meaning of excluded land
In this Act, excluded land is land –
(a) that is owned or managed by a council and is used as a public park or garden, a reserve or a public open space or for the purposes of conservation; or
(h) that is reserved under the Crown Lands Act 1976 or reserved for a public purpose under any other Act; or
(i) that is owned by the Forestry corporation; or
(j) that is permanent timber production zone land within the meaning of the Forest Management Act 2013 or land, on which timber production occurs, that is a type of land that is prescribed; or
(k) that is prescribed land.
Part 2
Rights and Responsibilities in Relation to Plants
Part 2 Rights and Responsibilities in Relation to Plants
Division 1
Responsibilities generally
Division 1 Responsibilities generally
10
Responsibilities in relation to plants
10 Responsibilities in relation to plants
(1) An owner of land on which a plant is situated is responsible for severing and removing any branches of the plant that overhang another area of land.
(2) An owner of land on which a plant is situated is responsible for ensuring that the plant does not cause –
(a) serious injury to a person on another area of land; or
(b) serious damage to another area of land or any property on another area of land; or
(c) substantial, ongoing and unreasonable interference with the use and enjoyment of another area of land.
(3) This section does not create a civil cause of action based on breach of a responsibility referred to in this section.
11
Joint liability of landholders for plants situated on their land
11 Joint liability of landholders for plants situated on their land
If there is more than one owner of land on which a plant is situated –
(a) each of the owners of the land is jointly and severally responsible and liable for and in relation to the plant; and
(b) a notice that may or must be given under this Act to an owner of the land may be given to any of the owners of the land.
12
Common law right of abatement
12 Common law right of abatement
(1) This Act does not affect the common law right of abatement in relation to a plant other than as provided under subsection (2) .
(2) A person who exercises the common law right of abatement by removing a part of a plant may, but is not required to, return the part of the plant to the landholder of the land on which the plant is situated.
13
Right to enter land
13 Right to enter land
(1) A person may enter land owned by another person if –
(a) the person is authorised under subsection (3) to enter the land; and
(3) A person is authorised to enter land owned by another person if –
(a) the entry is pursuant to a permission given, pursuant to section 20(2)(c) , in a branch removal notice under section 20(1) ; or
(b) the person has agreed with the other person to carry out work relating to plants or is acting on behalf of a person who has entered into such an agreement; or
(c) the Appeal Tribunal has ordered that work be carried out by the person or a person acting on behalf of the person.
(4) A person may only enter land under this section if the entry is made at a reasonable time and is made only to the extent necessary to carry out the work for which the entry on the land is required.
(5) A person is not authorised under this section to enter a dwelling on any land.
(6) If a person is authorised to enter land under this section, the owner of the land must take reasonable steps to ensure that it is safe for the person to enter the land, including by ensuring, if necessary to ensure such safety, that any animal on the land is restrained.
14
Requirements under other laws not affected
14 Requirements under other laws not affected
This Act does not –
(a) authorise work to be carried out that would otherwise be unlawful under another Act; or
(b) otherwise limit the operation of another law requiring a consent or authorisation to be obtained before work may be carried out.
Division 2
Responsibilities where sale or proposed sale of land
Division 2 Responsibilities where sale or proposed sale of land
15
Interpretation of Division 2
15 Interpretation of Division 2
In this Division –
application means an application that has not been decided, dismissed, struck out or withdrawn;
order means an order, that is in force, requiring work to be carried out in relation to a plant.
16
Person selling land to give buyer copy of application or order, &c.
16 Person selling land to give buyer copy of application or order, &c.
(1) An owner of land to which an application or an order relates must not, before the owner enters into a contract of sale of the land with a person, fail, without reasonable excuse, to give to the person a copy of –
(a) the application and any additional information filed with the Appeal Tribunal in relation to the application; or
(b) the order.
Penalty: Fine not exceeding 200 penalty units.
(2) An owner of land to which an application relates must, as soon as practicable after a person who intends to purchase the land to which the application relates enters into a contract of sale in relation to the land, notify the Appeal Tribunal that the person is joined under section 29(2) as a party to the application.
Penalty: Fine not exceeding 200 penalty units.
17
Consequences before transfer of failure to give copy of application or order to prospective purchaser
17 Consequences before transfer of failure to give copy of application or order to prospective purchaser
(1) This section applies in relation to a proposed sale of land if, before a person who proposed to purchase land enters into a contract of sale of the land –
(a) the owner of the land is given a copy of an application or an order; and
(b) the owner of the land does not give a copy of the application or order to the person.
(2) If this section applies in relation to a proposed sale of land, the person who has entered into a contract of sale in relation to the land may, at any time before the settlement of the sale occurs, terminate the contract of sale by giving, to the owner of the land or the owner's agent, a signed and dated notice of termination specifying that the sale is terminated under this section.
(3) If a contract of sale of land is terminated under subsection (2) by a person, the owner of the land to which the contract related must, within 14 days, refund to the person any deposit paid under the contract by the person.
Penalty: Fine not exceeding 150 penalty units.
(4) If an owner of land, in pursuance of subsection (3) , instructs a person who holds the deposit paid under a contract of sale to refund the deposit to the other person who entered into the contract, the person holding the deposit must immediately refund the deposit to the other person.
Penalty: Fine not exceeding 150 penalty units.
(5) If this section applies in relation to a proposed sale of land and the contract of sale in relation to the land is terminated under subsection (2) by a person –
(a) the owner of the land; and
(b) the person, if any, who was acting for the owner of the land and who prepared the contract of sale in relation to the land –
are jointly and severally liable to the person who terminated the contract of sale for the reasonable legal and other expenses incurred, by that person in relation to the contract of sale, after that person signed the contract of sale.
(a) an owner of land, if the owner of land did not know, or ought not reasonably be expected to know, that he or she had been given a copy of an application or order; or
(b) a person who was acting for the owner of the land and who prepared the contract of sale in relation to the land, if the person did not know, or ought not reasonably be expected to know, that the owner had been given a copy of an application or order.
18
Consequences after transfer of failure to give copy of order to prospective purchaser
18 Consequences after transfer of failure to give copy of order to prospective purchaser
(1) If –
(a) an order is made in relation to land before a person who is the owner of the land enters into a contract of sale for the land; and
(b) the person fails to give the prospective purchaser of the land a copy of the order before the prospective purchaser enters into a contract of sale in relation to the land; and
(c) the person has not, before the day on which the settlement of the sale occurs, carried out the work required under the order –
the person remains liable to ensure that work required under the order to be carried out is carried out.
(2) Subsection (1) applies in relation to a person even though the person has ceased to be the owner of the land.
(3) If subsection (1) applies to a person in relation to an area of land, the owner of the area of land must not unreasonably restrict the person from ensuring that the work is carried out on the land.
Part 3
Informal Dispute Resolution
Part 3 Informal Dispute Resolution
19
Neighbours to attempt to resolve dispute
19 Neighbours to attempt to resolve dispute
(1) A landholder of land that is affected by a plant situated on another area of land may request the owner of the other land, verbally or in writing, to take action to ensure that the affected land ceases to be affected by the plant.
(2) Both –
(a) a landholder of land that is affected by a plant; and
(b) the owner of the land on which the plant is situated –
are to make reasonable attempts to prevent the affected land being affected by the plant, or to minimise the degree to which the affected land is being, or will be, affected by the plant.
20
Branch removal notice may be given
20 Branch removal notice may be given
(1) A landholder of affected land over which extends, from other land, a branch, from a plant, that –
(a) is 2.5 metres or less above the ground level of the affected land; and
(b) extends at least 50 centimetres from the boundary of the affected land with the other land –
may give to the owner of the other land a notice in writing (a branch removal notice).
(2) A branch removal notice from an affected landholder to an owner of other land on which a plant with overhanging branches is situated must –
(a) specify a day by which the owner is required to ensure that the overhanging branches are removed from the affected land; and
(b) ask the owner to give to the affected landholder a notice for the purposes of this paragraph; and
(c) give the owner, and any person, acting on the owner's behalf, who is specified in a notice given under paragraph (b) , permission to enter the affected land between 8 a.m. and 5 p.m. on the day, specified in that notice in accordance with subsection (4)(b) , to sever and remove the branches.
(3) The day specified, in accordance with subsection (2)(a) , in a notice under subsection (1) is not to be less than 30 days after the day on which the notice is given.
(4) A person may, for the purposes of subsection (2)(b) , give a notice in writing specifying –
(a) the name of the person who will enter the affected land and sever and remove the branches; and
(b) the day on which the person will enter the affected land and sever and remove the branches.
(5) The notice to be given for the purposes of subsection (2)(b) is to be given no later than 24 hours before the overhanging branches are to be removed from the affected land.
(6) A notice given under subsection (1) is to be accompanied by –
(a) at least one written quotation stating the estimated cost of entering, severing and removing the branches; and
(b) a copy of this Part.
(7) Subsection (6)(a) does not apply if the affected landholder and the owner of the other land have agreed that the branches are to be severed and removed without payment being required to be made to another person.
(8) A permission, given in accordance with subsection (2)(c) in a notice under subsection (1) , to enter affected land does not include –
(a) permission to enter any dwelling situated on the affected land; or
(b) permission for a person who is not suitably qualified to carry out work on the land, unless the person giving the permission agrees.
(9) A notice may not be given by an affected landholder under subsection (1) to an owner of land within the 12-month period after a day on which a previous notice was given by the affected landholder, under that subsection, to an owner of the land, in relation to overhanging branches of the same plant.
(10) Subsection (9) does not apply in relation to a notice to a person if the person was not the owner of the land when the previous notice, referred to in that subsection, was given in relation to the land.
21
Action that may be taken if branch removal notice not complied with
21 Action that may be taken if branch removal notice not complied with
(1) If overhanging branches to which a branch removal notice under section 20(1) relates are not removed by the day specified, in accordance with section 20(2)(a) , in the notice, the affected landholder who gave the notice –
(a) may, but is not required to, sever and remove the overhanging branches or arrange for another person to sever and remove them; and
(b) may, but is not required to, return the branches to the owner of the land on which the plant is situated.
(2) Subsection (1) does not authorise a person to enter the land on which is situated the plant to which the overhanging branches are attached.
(3) The owner of the land to whom a branch removal notice is given under section 20(1) is liable for the reasonable expenses incurred by the affected landholder under subsection (1) in –
(a) severing and removing the overhanging branches; or
(b) arranging for another person to sever and remove them –
but only to an amount that is not more than the prescribed maximum amount.
(4) The affected landholder may recover from the owner of the land to whom a branch removal notice is given under section 20(1) , as a debt due and payable to the affected landholder, the amount for which the owner is liable under subsection (3) .
(5) An owner of land to whom a branch removal notice is given under section 20(1) may apply to a magistrate to determine whether an amount for which the owner is liable under subsection (3) is fair and reasonable.
(6) A magistrate to whom an application is made under subsection (5) may, if he or she determines that the amount to which the application relates is not fair and reasonable, determine another amount to be the amount for which the owner of land is liable under subsection (3) .
(7) If a magistrate determines another amount under subsection (6) in relation to an owner of land, the amount determined is taken to be the amount for which the owner is liable under subsection (3) .
22
Notice about land affected by plant
22 Notice about land affected by plant
(1) A landholder of land that is affected by a plant situated on another area of land may give notice in writing to an owner of the other land.
(2) A notice under subsection (1) , from a landholder of land that is affected by a plant situated on another area of land is to –
(a) specify the grounds on which the affected landholder believes the land is being affected by the plant; and
(b) specify the action that the affected landholder considers the owner of the land should take, or ensure is taken, so that the affected land will cease to be affected by the plant; and
(c) request the owner of the land to respond in writing to the notice within a period, of not less than 14 days, specified in the notice.
Part 4
Applications to Appeal Tribunal
Part 4 Applications to Appeal Tribunal
23
Application to Appeal Tribunal
23 Application to Appeal Tribunal
(1) A person who is a landholder of affected land may apply to the Appeal Tribunal for an order under this Part.
(2) An application is to be accompanied by the prescribed fee, if any.
(3) The chairperson of the Appeal Tribunal may waive, reduce or refund all or part of the fee payable under subsection (2) by a person if the chairperson is satisfied that paying all or part of the fee may cause financial hardship to the person.
(4) An application may only be made in relation to affected land by a landholder who is not an owner of the land if –
(a) the person has, in writing to the owner, requested the owner of the land to make an application; and
(b) the owner has refused to comply with the request within 42 days after the request was made.
(5) An application –
(a) must be made in writing to the Appeal Tribunal; and
(b) [Section 23 Subsection (5) amended by No. 23 of 2021, s. 157, Applied:01 Jan 2022] must include information or evidence (which may be photographic evidence) sufficient to identify the affected land, the type, scale and height of the plant and the precise location on the affected land of the plant to which the application relates and a copy of the folio of the Register, under the Land Titles Act 1980 , for the affected land; and
(c) must set out in detail the grounds on which the applicant has made the application; and
(d) must state the general nature of the relief that the applicant seeks; and
(e) must set out the details of the persons or bodies whom the applicant intends to notify, under section 24(1) , in relation to the application; and
(f) where the relief sought, if granted, would be of a kind the carrying out of which would require the consent or approval of a government body, is to set out details of the type of consent or approval that would be required.
(6) The Appeal Tribunal may allow the amendment of an application on the conditions the Appeal Tribunal thinks fit.
24
Notice of application to be given
24 Notice of application to be given
(1) The applicant must give notice in writing of an application, the grounds of the application and the nature of the relief sought, to –
(a) a person who is the owner of the land on which is situated the plant to which the application relates; and
(b) any interested government body that is entitled under section 27 to appear in proceedings in relation to the application; and
(c) any other person who would be affected if the relief sought in the application were granted.
(2) The Appeal Tribunal may, if it thinks fit, give notice, of an application, to a person or body referred to in subsection (1) and, if it gives such a notice, the notice is to be taken to have been given by the applicant under subsection (1) .
25
Appeal Tribunal may require further information
25 Appeal Tribunal may require further information
(1) The Appeal Tribunal may require an applicant –
(a) to provide further information, or materials, that the Appeal Tribunal requires for determination of the application; or
(b) to provide a more formal application that –
(i) identifies with greater particularity the grounds on which the application is founded and the nature of the relief sought; and
(ii) complies with any other requirements imposed by the Appeal Tribunal.
(2) The Appeal Tribunal may decline to proceed with an application until the applicant has complied with a requirement under subsection (1) .
26
Attempts to resolve dispute to be made before hearing of application
26 Attempts to resolve dispute to be made before hearing of application
(1) Before hearing an application, the Appeal Tribunal –
(a) must consider whether reasonable attempts to resolve the matter to which the application relates have been made by the parties; and
(b) if the Appeal Tribunal is not satisfied that reasonable attempts to resolve the matter to which the application relates have been made by the parties, may direct the parties to an application to attempt to resolve the matter to which the application relates.
(2) For the purposes of determining whether reasonable attempts to resolve a matter have been made, the Appeal Tribunal may take into account –
(a) whether a request under section 19(1) has been made, or a branch removal notice under section 20(1) or a notice under section 22(1) has been given, in relation to the matter; and
(b) whether the owner of the land on which a plant is situated has refused to carry out work in relation to the plant because the owner reasonably believes that the work may affect –
(i) the health or structural stability of the plant; and
(a) there have been any threats of violence made by any of the parties to the application to any other party; and
(b) there are any orders of a court or tribunal in relation to a party for the purpose of restraining any behaviour of the party that may affect another party to the application or a person who is acting on behalf of another party to the application; and
(c) the parties have participated in any form of alternative dispute resolution in relation to the matter.
Interested government bodies may appear in proceedings
27 Interested government bodies may appear in proceedings
A government body may appear in proceedings in relation to an application if the carrying out of work on the plant to which the application relates may require the consent of, or other authorisation by, the government body.
28
Application of Tasmanian Civil and Administrative Tribunal Act 2020
28 Application of Tasmanian Civil and Administrative Tribunal Act 2020
(2) A person who is given a copy of an application under section 16(1) in relation to an area of land is joined as a party to the application when the person enters into a contract of sale in relation to the land.
30
Matters generally to be considered by Appeal Tribunal
30 Matters generally to be considered by Appeal Tribunal
Without limiting the matters to which the Appeal Tribunal may have regard in considering an application in relation to a plant situated on an area of land, the Appeal Tribunal must, to the extent that they are relevant in relation to the application, consider the following:
(ii) any designation, and requirements, that apply in relation to plants; and
(iii) any height restrictions, or requirements as to set-back, that apply under that scheme in relation to the land;
(b) the location of the plant in relation to the boundary of the land;
(c) any risks associated with soil instability, or changes to the water table, that may be caused by the work required under a proposed order;
(d) whether the plant, or any risk, obstruction or interference related to the plant, existed before the applicant purchased or first began to occupy the land that is affected by the plant;
(e) if it is alleged that sunlight is severely obstructed from reaching a structure referred to in section 7(2)(a) or (b) because of the plant –
(i) the amount of sunlight obstructed; and
(ii) the number of hours per day during which the sunlight is obstructed; and
(iii) the period of the year during which the sunlight is obstructed; and
(iv) whether the plant loses its leaves at certain times of the year and the proportion of the year during which leaves are lost;
(f) if it is alleged that a view from a part of a dwelling is obscured because of a plant –
(i) the nature and extent of the view that is obscured; and
(ii) the uses to which the part of the dwelling is put;
(g) whether any work in relation to the plant would require any consent or other authorisation under any other Act;
(h) the type of plant, including whether it is a pest or weed under any other Act;
(i) the extent to which the plant contributes to the amenity of the land, including by providing privacy, protection from sun, wind, noise, odour or smoke or by contributing to the landscaping or garden design on the land;
(j) any risk associated with the plant due to weather or in the event of a storm or other extreme weather event;
(k) the likely effect on the plant of pruning it.
31
Matters to be considered if threat of serious injury or serious damage
31 Matters to be considered if threat of serious injury or serious damage
(1) In addition to any matters that the Appeal Tribunal must consider under section 30 in relation to an application, if an affected landholder alleges that a plant situated on another area of land has caused, is causing or likely to cause serious injury to a person, or serious damage to the affected landholder's land or property on the affected landholder's land, the Appeal Tribunal may consider –
(a) anything, other than the plant, that has contributed, or is contributing, to the injury or damage or likelihood of injury or damage, including any act or omission by the affected landholder and the effect of any plant situated on the affected landholder's land; and
(b) any steps taken by the affected landholder, or the owner of the area of land on which the plant is situated, to prevent or rectify the injury or damage or the likelihood of injury or damage.
(2) In making an order under this Part to carry out work that involves destroying a plant, the Appeal Tribunal may consider –
(a) how long the affected landholder has known of the injury or damage; and
(b) any steps that have been taken by the affected landholder, or the owner of the land on which the plant is situated, to prevent further injury or damage; and
(c) anything other than the plant that may have caused, or contributed to, some or all of the injury or damage; and
(d) any other matter the Appeal Tribunal considers relevant.
32
Matters to be considered if unreasonable interference
32 Matters to be considered if unreasonable interference
In addition to any matters that the Appeal Tribunal must consider under section 30 in relation to an application, if the applicant alleges that a plant has caused, is causing, or is likely to cause, substantial, ongoing and unreasonable interference with the applicant's use and enjoyment of the affected land, the Appeal Tribunal may consider –
(a) anything other than the plant that has contributed, or is contributing, to the interference; and
(b) any steps taken by the applicant, or the owner of the land on which the plant is situated, to prevent or minimise the interference; and
(c) the size of the land on which the plant is situated; and
(d) whether the plant existed before the applicant owned or occupied the affected land; and
(e) for interferenceof a kind to which section 7(2) or (3) relates – any contribution the plant makes to the protection of revegetation of a waterway or foreshore or against landslip or soil erosion; and
(f) any other matter the Appeal Tribunal considers relevant.
33
Appeal Tribunal to determine application
33 Appeal Tribunal to determine application
(1) The Appeal Tribunal must decide an application by –
(a) dismissing the application; or
(b) making one or more orders under this section in relation to the application.
(2) The Appeal Tribunal may make the orders in relation to an application that it considers appropriate to –
(a) ensure that a part of a plant does not overhang another person's land; or
(b) prevent, or reduce the likelihood of, serious injury being caused to a person by a plant; or
(c) prevent, restrain, or reduce the likelihood of, serious damage being caused by a plant to a person's land or any property on a person's land; or
(d) prevent, or reduce the likelihood of, substantial, ongoing and unreasonable interference with a person's use and enjoyment of a person's land being caused by a plant; or
(e) remedy damage caused to a person's land, or any property on a person's land, by a plant.
(3) The Appeal Tribunal may make any one or more of the following orders in relation to an application:
(a) an order that the determination of the application is to be deferred until an application for a permit under the Land Use Planning and Approvals Act 1993 is made or determined, or both, in relation to a plant or until any appeal to the Appeal Tribunal under that Act is determined;
(b) an order that, despite section 61(5) of the Land Use Planning and Approvals Act 1993 , the owner of land on which a plant is situated in whole or in part may, within the period specified in the order, appeal under that section against a decision in respect of an application for a permit that relates to a plant on the land;
(4) The Appeal Tribunal may, if it is satisfied that a plant is causing an immediate risk of injury to persons or property, make an interim order under subsection (2) or (3) in relation to the plant, pending a subsequent determination of the application under this section.
(5) An order is not to be made requiring the removal or destruction of a living plant to which an application relates unless the Appeal Tribunal is satisfied that the purpose for which the application was sought could not otherwise be attained.
(6) Without limiting the generality of subsection (2) , an order under that subsection in relation to a plant may do any of the following:
(a) require or allow an owner of land on which a plant is situated, or an affected landholder, to carry out work on the plant on a particular occasion or on an ongoing basis;
(b) require a survey to be undertaken to clarify the plant's location in relation to a boundary of land;
(c) require a person to apply for a consent, or other authority, in relation to the plant, from a government body;
(d) authorise a person to enter land to carry out an order under this section, including so as to obtain a quotation in relation to work in respect of the plant;
(e) require the applicant or the owner of the land on which the plant is situated to pay costs associated with carrying out an order under this section;
(f) require the owner of land on which the plant is situated to pay compensation to an affected landholder for damage to the land or property on the land;
(g) require a report to be obtained from an appropriately qualified arborist.
(a) an order is made by the Appeal Tribunal under section 33 (the original order); and
(b) the work required by the original order has not been completed within the time specified in the order –
the affected landholder to whom the original order relates may apply to the Appeal Tribunal, not less than 14 days after the time specified in the original order for completion of the work, for an order under subsection (2) .
(2) On application under subsection (1) by an affected landholder, the Appeal Tribunal, if it is satisfied that the work required by the original order to which the application relates has not been completed within the time specified in the order, may –
(a) order that the affected landholder, and any employee, agent or contractor of the affected landholder, may enter onto the land on which is situated the plant to which the original order relates and carry out any work necessary to give effect to the original order; and
(b) order that the affected landholder may recover as a debt, from the owner of the land on which the plant to which the original order relates is situated, the reasonable expenses of carrying out the work and the costs of making the application under this section.
(3) An application made under subsection (2) is to be accompanied by –
(a) a copy of the original order; and
(b) the prescribed fee, if any.
(4) The chairperson of the Appeal Tribunal may waive, reduce or refund all or part of the fee payable under subsection (3)(b) by a person if the chairperson is satisfied that paying all or part of the fee may cause financial hardship to the person.
34
Effect of orders
34 Effect of orders
(1) An order made for the purposes of this Act in relation to an application is only binding on a person who was a party to the proceedings in relation to the application.
(2) Despite subsection (1) , if a purchaser of land is, under section 16(1) , given by the owner of the land a copy of an order made for the purposes of this Act, the purchaser becomes, on the day on which settlement of the sale of the land to the purchaser occurs, bound by the order as if –
(a) the purchaser were the person to whom the order applied; and
(b) any period, specified in the order, for carrying out the order began on that day –
but only to the extent that the owner of the land has not, before that day, carried out the work to which the order relates.
(3) The Appeal Tribunal, within 14 days after making an order for the purposes of this Act, is to give a copy of the order to –
(a) the council, if any, in relation to the land on which is situated the plant to which the order relates; and
(b) any other government body or party who appeared in the proceedings to which the order relates.
An order for the purposes of this Act lapses after the period of 10 years from the day on which the order was made unless the order expressly states otherwise.
36
Variation or revocation of order
36 Variation or revocation of order
(1) A landholder of affected land to which an order for the purposes of this Act relates, or an owner of land on which is situated a plant to which such an order relates, may apply to the Appeal Tribunal for a variation of the order.
(2) An application under subsection (1) is to be accompanied by the prescribed fee, if any.
(3) The Appeal Tribunal may, on application under subsection (1) for a variation of an order, vary the order by altering the terms of the order or by substituting any other order that the Appeal Tribunal may make for the purposes of this Act.
(4) The Appeal Tribunal must give notice in writing of the variation or revocation under this section of an order in relation to a plant to –
(a) the affected landholder to whom the original order relates; and
(b) each owner of the land on which the plant is situated; and
(c) the council, if any, in relation to the land on which is situated the plant to which the order relates; and
(d) any government body, or other person, that the Appeal Tribunal considers to have an interest in the matter.
(5) A variation under this section of an order in relation to a plant is of no effect until notice of the variation has been given to the affected landholder of the land that is affected by the plant and each owner of the land on which the plant is situated.
(6) Without limiting the circumstances in which the Appeal Tribunal may make an order revoking an order made under this Act, the Appeal Tribunal may, on application or on its own initiative, by order, revoke an order that it considers has been satisfied.
37
Database of orders to be kept
37 Database of orders to be kept
(1) The Appeal Tribunal is to establish and maintain, in the form (which may be an electronic form) that it thinks fit, a database of –
(a) orders made for the purposes of this Act; and
(b) any applications made under this Act.
(2) The database is to contain information as to –
(a) whether an application, or an order for the purposes of this Act, has been made in relation to an area of land; and
(b) the details specified in an application; and
(c) if an order has been made for the purposes of this Act –
(i) the terms of the order; and
(ii) when the order takes effect; and
(iii) when any action required by the order to be taken is required to be carried out; and
(iv) who is required by the order to carry out action under the order.
(3) The database is to contain –
(a) within 14 days after an order is made, information in relation to the order; and
(b) within 14 days after a variation or revocation of an order is made, information as to the variation or revocation.
(4) A person may, on payment of the prescribed fee, if any, search the database and obtain a certified copy of any information set out on the database in relation to an order or an application for an order.
Part 5
Miscellaneous
Part 5 Miscellaneous
38
Regulations
38 Regulations
(1) The Governor may make regulations for the purpose of this Act.
(2) The regulations may be made so as to apply differently according to matters, limitations or restrictions, whether as to time, circumstance or otherwise, specified in the regulations.
(3) The regulations may –
(a) provide that a contravention of any of the regulations is an offence; and
(b) in respect of such an offence, provide for the imposition of a fine not exceeding 50 penalty units; and
(c) prescribe the form of a notice for the purposes of this Act or that a notice for the purposes of this Act is to be in a form approved by a person specified in the regulations.
39
Review of Act
39 Review of Act
(1) The Minister is to cause an independent review of the operation of this Act to be carried out as soon as practicable after the fourth anniversary of the commencement of this section.
(2) The persons who carry out the review are to give the Minister a written report on its outcome.
(3) The Minister is to cause a copy of the report to be tabled in each House of Parliament within 10 sitting-days of the House after it is given to the Minister.
(4) In this section –
independent review means a review carried out by persons who –
(a) in the Minister's opinion, are appropriately qualified for that task; and
(b) include one or more persons who are not State Service employees or State Service officers or employees of any agency of the State.
Sourced from Tasmanian Legislation Online (legislation.tas.gov.au), CC BY 4.0.
Part 1 Preliminary
Part 1 Preliminary
1 Short title
1 Short title
This Act may be cited as the Neighbourhood Disputes About Plants Act 2017 .
2 Commencement
2 Commencement
The provisions of this Act commence on a day or days to be proclaimed.
3 Interpretation
3 Interpretation
(1) In this Act, unless the contrary intention appears –
affected land means an area of land that is, under section 7 , affected by a plant situated in whole or in part on another area of land;
affected landholder means a landholder of land that is affected land;
[Section 3 Subsection (1) amended by No. 18 of 2021, s. 295, Applied:05 Nov 2021]
[Section 3 Subsection (1) amended by No. 18 of 2021, s. 295, Applied:05 Nov 2021]Appeal Tribunal means the Tasmanian Civil and Administrative Tribunal;
applicant means a person who makes an application;
application means an application under section 23(1) ;
cabling means the insertion of cables or wire into a plant for the purpose of ensuring the stability of the plant;
Crown land means land that is vested in the Crown and includes land granted in fee simple which has revested in the Crown by way of purchase or otherwise;
excluded land means land specified in section 9 ;
Forestry corporation means the Forestry corporation continued by section 6 of the ;
Creates a low-threshold branch-notice route for affected landholders where branches are 2.5 metres or less above the affected land and extend at least 50 centimetres beyond the boundary, with specified notice content, minimum timing and supporting quotations required (s 20). If the owner does not comply, the affected landholder may remove the branches or arrange removal and recover reasonable expenses capped by regulation (s 21).
Provides a formal tribunal route under Part 4. A landholder of affected land may apply to the Appeal Tribunal for orders to prevent injury, damage or unreasonable interference, or to remedy damage (s 23, s 33). Applications must be detailed and accompanied by prescribed evidence, including a copy of the land title folio (s 23(5)(b)). The Appeal Tribunal may make interim orders, require surveys, require consents, defer to planning permit processes, or require the owner to pay costs or compensation (s 33).
Puts procedural duties on vendors of land whose property is subject to an application or an order. A seller must give a prospective buyer a copy of the application or order before entering a contract, with a monetary penalty for failure (s 16). If a buyer is not given a copy and discovers an application or order before settlement, the buyer may terminate the contract and obtain a refund of deposit and possibly recover legal costs (s 17). If an order exists before sale and was not disclosed, the seller remains liable to ensure the work is done even after transfer (s 18).
Makes Appeal Tribunal orders binding on parties to proceedings, and may bind purchasers who have been given copies of orders under s 16(1) when settlement occurs (s 34). The Tribunal must maintain a searchable database of applications and orders and keep it updated within specified timeframes (s 37).
Prescribes enforcement and compliance mechanisms, including fines available under the Act and under any regulations (s 34(4), s 38). The Tribunal may make completion orders where required work was not completed, allowing affected landholders to enter and carry out work and recover expenses (s 33A).
Sets out exclusions and limits: the Act does not apply to plants on excluded land (broadly certain public land, rail corridors, State forest/timber production land, and prescribed land) (s 5, s 9), or to plants on farms that are maintained for necessary farm management purposes (s 5(1)(b)). The Crown is bound by the Act (s 6).
Mechanically the Act therefore creates a layered dispute-resolution framework starting with neighbour negotiation, moving to a defined branch-notice remedy for lower-level overhanging branch disputes, and providing an adjudicative path through the Appeal Tribunal for more serious or complex disputes, with registration, disclosure and enforcement consequences to align incentives for sellers, buyers and owners of plants (Part 3, Part 4, ss 16-18, s 37). All work remains subject to other laws and consents, the Tribunal may defer or require applications under planning laws, and government bodies may participate where their consent would be required (ss 14, 27, 30, 33(3)).
Main concepts
This Act operationalises several core legal concepts that determine who may act and what remedies are available. Below are the main statutory concepts, their mechanics and cross-references.
Plant. Defined broadly as any plant or part of a plant, and expressly extends to trees, hedges, fruits, seeds, leaves, stumps, roots, bare trunks and dead plants (s 4(1)-(2)). The Act permits regulations to exclude whole classes of plants from the definition (s 4(3)). The spatial concept of a plant being situated on land is tied to the base of the trunk or where stem meets roots being situated in whole or part on the land (s 4(4)).
Affected land and affected landholder. Land is affected when overhanging branches exist, or when the plant has caused, is causing, or is likely within the next 12 months to cause serious injury, serious damage, or substantial, ongoing and unreasonable interference with use and enjoyment (s 7(1)). Specific conduct constituting "substantial, ongoing and unreasonable interference" is illustrated by causing severe obstruction of sunlight to windows, solar panels and skylights (s 7(2)), and obstruction of views from dwellings in narrow circumstances (plant at least 2.5 metres, severe obstruction and owner present at time of taking possession and view not previously obstructed) (s 7(3)). The statute also creates a spatial cut-off: outside 25 metres from base of trunk (or stem-root connection) land is not affected except for the sunlight and view rules (s 7(4)-(5)).
Owner and landholder. Owner is defined inclusively to capture fee simple owners, bodies corporate (for strata common property), life tenants, lessees of long leases, Crown land managers and prescribed interests (s 3(1) definitions). Landholder includes both owner and occupier of land (s 3(1)). Joint owners are jointly and severally liable (s 11).
Work. Work on a plant includes severing and removing any part, netting, attaching or removing cabling, destroying the plant by poisoning, uprooting, ringbarking or cutting down and removing any part of a plant (s 3 definition of work).
Branch removal notice. A statutory, short-form mechanism for low-height overhanging branches. It applies where branches are 2.5 metres or less above the affected land and extend at least 50 centimetres beyond the boundary (s 20(1)). Notices must specify a day not less than 30 days ahead, include permission to enter for severing and removing (with limits), be accompanied by at least one written quotation and a copy of Part 3 (s 20(2), (3), (6)). There are constraints on frequency (one per 12 months to same owner for same plant, s 20(9)) and on authorised entry (no dwellings, no unqualified persons unless agreed, s 20(8)).
Appeal Tribunal and orders. The Appeal Tribunal is the Tasmanian Civil and Administrative Tribunal as defined (s 3). A landholder of affected land may apply for orders (s 23), and the Tribunal may make orders to prevent overhanging branches, prevent or reduce risk of serious injury, prevent or reduce serious damage, remedy damage, or address substantial ongoing interference (s 33(2)). Orders can be interim where immediate risk exists (s 33(4)). Orders may require surveys, consents, reports, authorise entry, require payment of costs or compensation, and may be deferred pending planning processes (s 33(3), s 30(a)).
Database and disclosure. The Appeal Tribunal must keep a database of applications and orders, updated within 14 days of orders or variations (s 37). Vendors must disclose pending applications or orders to prospective purchasers before a contract of sale is made or risk statutory penalties and post-sale liabilities (ss 16-18, s 34(2)).
Excluded land and exceptions. The Act excludes certain public, Crown, conservation and prescribed lands, specifically council-owned public parks, rail infrastructure, strategic corridor land, Wellington Park, state and local highways, unalienated Crown land, reserved nature conservation land, reserved Crown land, Forestry corporation land, and permanent timber production zone land, or prescribed land (s 9). It also excludes plants planted for sale or under a court order other than for purposes of the Act, and plants on farms where planted or maintained for farm management purposes (s 5).
Limits on private remedies. Although s 10 imposes responsibilities on owners, the statute explicitly states that s 10 does not create a civil cause of action for breach of those responsibilities (s 10(3)). The Act therefore structures remedies through branch notices, common law abatement, magistrates’ involvement for expense disputes, and tribunal orders.
These core concepts function together to channel neighbour disputes into an initial negotiated step, a prescribed notice-and-recovery route for modest branch issues, and a tribunal-based adjudication for significant or unresolved disputes, while preserving certain existing rights and requiring attention to other statutory regimes for works affecting plants.
Who it affects
The Act creates obligations and procedural roles for multiple categories of persons and public bodies. The statutory definitions set the scope of affected persons, and particular provisions allocate responsibilities, rights to enter land, and disclosure duties.
Owners of land on which a plant is situated. The primary dutybearers are owners, defined broadly to include fee simple owners, bodies corporate for strata common property, life tenants, long-term lessees (99 years or a prescribed term), Crown land managers where relevant, holders of leases or licences over Crown land, and any other prescribed interest (s 3, definition of "owner", and s 2(2) limitation). Owners are responsible for severing and removing overhanging branches (s 10(1)), preventing serious injury and damage and preventing substantial, ongoing and unreasonable interference (s 10(2)), and, importantly for property transactions, for disclosing applications and orders to prospective purchasers (s 16).
Landholders whose land is affected. A landholder of affected land (which includes owners and occupiers, per the definition of "landholder" and "occupier", s 3) may initiate informal dispute resolution requests (s 19), issue branch removal notices when conditions apply (s 20), and bring applications to the Appeal Tribunal to obtain orders (s 23). An affected landholder can also apply for completion orders if tribunal-ordered work is not completed (s 33A).
Prospective purchasers and vendors. Vendors who have an application or order relating to land must give a copy to a prospective purchaser before entering into a contract (s 16(1)). Failure triggers specified penalties (s 16) and potential post-contract consequences including termination and refund of deposits under s 17, and continued liability to ensure orders are satisfied even after transfer if the seller failed to give the prospective purchaser a copy (s 18).
Occupiers and tenants. Occupiers qualify as landholders for many purposes (s 3 definitions). For entry and notice provisions, where a lessee exists the s 13 notice requirements require the affected person to notify a lessee if one is believed to exist (s 13(1)(b)(ii)).
Joint owners. Where plant sits on land owned by more than one person, each owner is jointly and severally liable for the plant, and notices may be given to any of the owners (s 11).
Government bodies and councils. Government bodies who hold offices or State authorities performing functions related to plant regulation, and councils, are defined as government bodies (s 3). They may be joined, required to appear or notified in proceedings where consents would be required or where they have an interest (s 24(1)(b), s 27, s 34(3)). The Act binds the Crown in right of Tasmania (s 6).
The Appeal Tribunal and magistrates. The Appeal Tribunal is the principal decision-maker for contested applications (s 3, definition "Appeal Tribunal"; Part 4). Magistrates have a role where an owner disputes whether an expense claimed under the branch removal route is fair and reasonable (s 21(5)), and may be applied to for determination of the appropriate amount.
Forestry corporation and specified land managers. The Forestry corporation is defined and land owned by it is excluded land in many circumstances (s 3 definition, s 9(i)). Other excluded land includes reserved lands, rail network lands, certain highways and prescribed land and may therefore take plants on those lands outside the Act (s 9).
Persons performing work and contractors. The Act contemplates permission for named persons to enter affected land to sever and remove branches under a branch removal notice (s 20(2)(c) and (4)). However, entry on to the land where the plant is situated is not authorised by the removal route (s 21(2)); tribunal orders can authorise entry (s 33(6)(d), s 33A).
Third parties with statutory interests. Anyone whose consent would be needed to carry out work under other statutes is relevant to proceedings and may be joined; applicants must identify such consents in applications and the Tribunal will consider whether other consents are required (s 23(5)(f), s 30(g), s 27).
Practically, the Act affects residential neighbours, strata bodies, farm operators where plants are necessary for farm management (s 5(1)(b) provides exemption), Crown land managers and infrastructure owners. Vendors and conveyancers are directly affected by the disclosure regime and its civil and penal consequences (ss 16-18). Government bodies and councils are implicated both as potential interested parties and as land managers for excluded land (s 9).
Key duties and rights
The Act creates specific duties for owners and procedural rights for affected landholders, together with limits on private remedies and defined powers for the Appeal Tribunal. Below are the most operational duties and rights, with direct references.
Owner duties. Owners of land on which a plant is situated must sever and remove branches that overhang another area of land (s 10(1)). Owners must also ensure that the plant does not cause serious injury to a person on another area of land, serious damage to other land or property, or substantial, ongoing and unreasonable interference with the use and enjoyment of another area of land (s 10(2)). Joint owners are jointly and severally responsible and liable where more than one owner exists (s 11).
No separate civil cause of action created by s 10. The Act explicitly precludes s 10 creating a civil cause of action for breach of the statutory responsibilities in that section (s 10(3)). This leaves private civil remedies to existing common law causes such as nuisance or negligence, and to the statutory routes established in the Act.
Common law abatement preserved and modified. The Act does not abolish the common law right of abatement, but modifies the logistics by providing that a person who exercises abatement by removing a part of a plant may, but is not required to, return the removed material to the landholder (s 12(1)-(2)).
Right to enter in limited circumstances. A person may enter another’s land if authorised under s 13(3) and after giving at least 7 days’ written notice of intended entry to the owner and, if believed to exist, any lessee (s 13(1)(b)). Exceptions to that 7 day notice requirement are specified for entries tied to branch removal notices under s 20(2)(b) and for entries under certain interim orders (s 13(2)). Authorised entries include entry by persons specified in a branch removal notice (s 13(3)(a)), persons who have agreed with the owner to carry out work, or persons ordered by the Appeal Tribunal to carry out work (s 13(3)(b)-(c)). Entries must be at reasonable times, only to the extent necessary and must not be into dwellings (s 13(4)-(5)). Owners must ensure the land is reasonably safe for authorised entrants (s 13(6)).
Informal dispute duties. Both affected landholders and the owner of the land with the plant are required to make reasonable attempts to prevent the affected land being affected or to minimise the degree of effect (s 19(2)). A landholder may request the owner verbally or in writing to take action (s 19(1)).
Branch removal notice rights and obligations. When branches meet the 2.5 metre/50 centimetre criteria, an affected landholder may give a branch removal notice (s 20(1)). Notices must specify a day at least 30 days out, include an instruction that the owner provide a notice of who will carry out the work, and give permission for specified persons to enter the affected land to sever and remove branches between 8 a.m. and 5 p.m. on that day (s 20(2)-(4)). Notices must be accompanied by at least one written quotation and a copy of Part 3, unless the parties agree no payment is required (s 20(6)-(7)). An owner who fails to comply is liable for reasonable expenses incurred by the affected landholder for removal, subject to a prescribed maximum (s 21(3)).
Tribunal application rights. A landholder of affected land may apply to the Appeal Tribunal for orders under Part 4 (s 23(1)). Applications must include prescribed fee, though the chairperson may waive, reduce or refund fees for financial hardship (s 23(2)-(3)). Applications must be in writing and include detailed evidence sufficient to identify the affected land, the plant, and the folio of the land title (s 23(5)(a)-(b)). The Tribunal has a broad range of remedial powers under s 33, including interim orders where immediate risk exists (s 33(4)), and can make orders that require parties to carry out work, authorise entry, require surveys, require consents, assign costs and compensation, and require arborist reports (s 33(2)-(3), (6)).
Vendor and purchaser duties and rights. Owners selling land must give prospective buyers copies of any application and supporting materials or any order that relates to the land before entering a contract of sale, failing which there is a statutory fine (s 16(1)). An owner who fails to disclose a copy of an application is required to notify the Appeal Tribunal when the purchaser is joined as a party (s 16(2)). If a purchaser enters a contract without receiving a required copy of an application or order, the purchaser may terminate the contract before settlement, have the deposit refunded and may recover reasonable legal expenses from the vendor and agent, subject to exceptions for reasonable ignorance (ss 17(2)-(6)). If an order was made before a contract and the vendor failed to give the purchaser a copy, the vendor remains liable to ensure the work required by the order is carried out, even after transfer (s 18(1)-(2)).
Enforcement and penalties. The Tribunal’s orders are binding on parties to the proceedings (s 34(1)), and failure to comply with a Tribunal order is an offence carrying a fine not exceeding 100 penalty units (s 34(4)). Regulations may create offences carrying fines up to 50 penalty units (s 38(3)). For branch removal costs the owner may seek judicial review of the amount claimed in Magistrates Court, where the magistrate may substitute a different amount if the claimed amount is not fair and reasonable (s 21(5)-(7)). The Tribunal may also issue completion orders permitting affected landholders to enter and complete work and recover expenses where an original order was not complied with (s 33A).
Limits and interplay with other law. Nothing in the Act authorises work that would otherwise be unlawful under other Acts, nor does the Act limit other statutory consent requirements (s 14). The Tribunal must take into account planning schemes and may defer determinations pending planning permits or appeals (s 30(a), s 33(3)(a)). Government bodies who must be consulted for consent or authorisation may appear in proceedings (s 27).
These duties and rights form a mixture of statutory responsibilities, procedural entitlements, and enforcement mechanisms designed to channel disputes into discrete processes, while preserving some common law remedies and recognising other statutory regimes.
Penalties and enforcement
The Act provides a mix of civil, administrative and criminal-style enforcement levers, and creates routes for cost recovery and order enforcement. Enforcement is distributed across branch-removal recovery, Magistrates Court review, Tribunal coercion, and statutory fines.
Statutory fines and offences. The Act contains explicit monetary penalties in several places. A vendor who fails to give a prospective purchaser a copy of an application or order before entering into a contract faces a fine not exceeding 200 penalty units (s 16(1), penalty). There is a separate penalty of up to 200 penalty units for failing to notify the Appeal Tribunal when a purchaser is joined under s 23(5) (s 16(2), penalty). Section 17 imposes fines of up to 150 penalty units for an owner’s failure to comply with s 17(3)-(4) procedural refund obligations. Failure to comply with an Appeal Tribunal order made for the purposes of the Act is an offence punishable by a fine not exceeding 100 penalty units (s 34(4)). The Governor may make regulations that create offences with fines of up to 50 penalty units (s 38(3)(a)-(b)). Penalty units will be valued according to the relevant Penalty Units Act or equivalent at the time of enforcement.
Enforcement via cost recovery and debt recovery. Under the branch removal route, if an affected landholder severs and removes overhanging branches following non-compliance, the owner is liable for the reasonable expenses incurred by the affected landholder, capped by a prescribed maximum amount (s 21(3)). The affected landholder may recover that amount as a debt due and payable (s 21(4)). If the owner disputes the amount, the owner may apply to a magistrate to determine whether the amount is fair and reasonable; the magistrate may substitute an amount and that substituted amount becomes the owner’s liability (s 21(5)-(7)).
Tribunal enforcement and completion orders. The Appeal Tribunal may make orders requiring work to be carried out (s 33(2)-(3)), and where an original order is not complied with, an affected landholder may apply for a completion order (s 33A(1)). On application, if the Tribunal is satisfied the work required by the original order has not been completed, it may order that the affected landholder and their agents may enter the land and carry out the work, and may order recovery of reasonable expenses and costs of making the completion application from the owner (s 33A(2)(a)-(b)). Applications for completion orders must be accompanied by a copy of the original order and the prescribed fee (s 33A(3)), though the Tribunal chairperson may waive fees on grounds of financial hardship (s 33A(4)).
Interim orders and urgent intervention. The Appeal Tribunal may make interim orders if satisfied that a plant is causing an immediate risk of injury to persons or property, pending final determination (s 33(4)). Such interim orders may authorise entry or other urgent measures.
Binding nature and registration consequences. Orders bind parties to proceedings (s 34(1)). Where a purchaser has been given a copy of an order before settlement, the purchaser becomes bound on settlement as if they had been a party to the order, and any period for completing the order begins on settlement as to the purchaser’s obligations (s 34(2)). The Appeal Tribunal must give a copy of each order to the council and other government bodies or parties that appeared in the proceedings within 14 days of making the order (s 34(3)). The Tribunal is also required to maintain a database of orders and applications and make it searchable and certifiable for a fee (s 37).
Magistrates’ role for expense disputes. The Act sets out a discrete enforcement and review role for magistrates where the owner disputes the fairness of expenses claimed under the branch-removal route: an owner may apply to a magistrate to determine whether the amount is fair and reasonable, and the magistrate may substitute an amount (s 21(5)-(7)). The substituted amount then becomes the owner’s liability.
Limits on compelled entry and safety protections. The Act places constraints on entry rights and imposes obligations designed to reduce conflict and risk. Entry under branch removal notices is permitted only to the affected land (not into the land with the plant) and cannot authorise entry into dwellings; persons entering must be suitably qualified unless the owner agrees (s 20(2)(c), (8), s 21(2)). Where entry onto land is authorised under s 13 the owner must take reasonable steps to ensure the land is safe for entrants, including restraining animals if necessary (s 13(6)).
Interaction with other legal prohibitions. The Act expressly does not authorise work that would otherwise be unlawful under another Act, nor does it eliminate the need for other necessary consents or approvals to carry out work (s 14). As a result, enforcement through the Act must operate within the constraints of other regulatory regimes; the Appeal Tribunal has powers to defer orders until planning or other permit processes are completed, and may require parties to obtain consents (s 33(3)(a), (c); s 30(g); s 23(5)(f)).
In summary, enforcement combines criminal-style fines for certain breaches, debt and cost recovery for remedial actuation by affected landholders, Tribunal coercive powers and completion orders, and magistrates’ oversight for expense disputes. The Tribunal keeps a public record and orders can bind purchasers where disclosure obligations were complied with, creating property-law consequences for non-compliance.
How it interacts with other laws
The Act is explicitly designed to operate alongside several pre-existing land, planning and administrative regimes. It references and limits itself vis-à-vis other laws, and provides mechanisms by which other statutory consent processes can influence the operation of the plant-dispute regime.
Planning law and permits. The Appeal Tribunal must consider the provisions of any applicable planning scheme under the Land Use Planning and Approvals Act 1993 when determining applications, including zoning, designations about plants, height restrictions and set-backs (s 30(a)(i)-(iii)). The Tribunal may defer determination of an application until a planning permit application under the same Act is made or determined, or until any appeal under that Act is resolved (s 33(3)(a)). The Tribunal may also, in appropriate circumstances, allow the owner to appeal under s 61(5) of the Land Use Planning and Approvals Act 1993 against a decision about a permit relating to the plant, or may order that a planning permit be amended (s 33(3)(b)-(c)).
Tasmanian Civil and Administrative Tribunal Act 2020. The Appeal Tribunal is treated as the Tasmanian Civil and Administrative Tribunal for the purposes of proceedings under this Act (s 3 definition and s 28). Section 28 modifies certain references in the Tasmanian Civil and Administrative Tribunal Act 2020 to align procedural roles and parties with this Act (s 28(1)-(4) as amended). The Tribunal’s powers under this Act are in addition to any powers it has under the Tribunal Act (s 28(4)).
Boundary Fences Act 1908. The Act excludes plants that form a fence for which a notice may be issued under s 48 of the Boundary Fences Act 1908; that is, plants forming a fence in respect of which s 48 of the Boundary Fences Act applies are not within this Act’s scope (s 5(2)).
Land Titles and conveyancing. Applications to the Appeal Tribunal must include a copy of the folio of the Register under the Land Titles Act 1980 for the affected land, indicating an intended connection with land-title records and conveyancing processes (s 23(5)(b)). Vendors must disclose applications or orders to prospective purchasers before entering contracts, generating obligations that interact with common conveyancing practice and contract law (s 16). Failure to disclose may produce post-contract liabilities and termination rights under ss 17-18.
Crown, Crown lands and conservation regimes. The Act binds the Crown (s 6) but excludes certain categories of Crown or public land from its scope. Excluded land covers council parks and reserves used for public recreation or conservation, the rail network, strategic corridor land, Wellington Park, state and local highways, unalienated Crown land, nature conservation reserved land, reserved Crown land and land owned by the Forestry corporation and permanent timber production zone land, or prescribed land (s 9). The Act also excludes plants on farms where they are planted or maintained for purposes necessary or desirable for farm management under the Primary Industry Activities Protection Act 1995 (s 5(1)(b)).
Forestry and timber production legislation. The Forestry corporation is a defined entity and land owned by it may be excluded; permanent timber production zone land under the Forest Management Act 2013 or prescribed lands where timber production occurs are excluded (s 3 definition and s 9(i)-(j)).
Other statutory consents and approvals. The Act does not permit work that would contravene other laws; it requires the Tribunal to consider whether any work would require consent under other Acts, and allows government bodies who may need to authorise such work to appear in proceedings (s 14, s 27, s 30(g)). The Act also contemplates that where Tribunal orders would require third-party consents, the application must set out the type of consent required (s 23(5)(f)).
Magistrates and civil recovery. For branch removal expenses the owner may seek a determination from a magistrate whether the claimed amount is fair and reasonable (s 21(5)-(7)), linking recovery under this Act to Magistrates Court jurisdiction.
Regulatory regime. The Governor may make regulations under s 38 which can prescribe forms of notices, create offences for contravention of regulations and set monetary penalties up to 50 penalty units, further integrating the Act with the general regulatory framework.
Interaction with conveyancing and property rights. The Act places a property-related operation on disclosure of orders and applications, and the Tribunal must maintain a database of orders and applications which may be searched and certified for a fee (s 37), creating a practical intersection with title searches and conveyancing due diligence.
These interactions impose a clear procedural overlay around plant-related work, ensuring that any remedial actions conform with planning controls, other statutory consents, conveyancing duties and public land designations. The Tribunal’s discretion to defer pending other permit processes and to require consents recognises and enforces those cross-law dependencies (s 33(3)(a), s 30(g), s 23(5)(f)).
Amendment history
The Act text contains multiple recorded amendments and insertions. The statute as provided shows amendments effected by later Acts and notes certain insertions and omissions. The following particulars are recorded in the text.
Amendments noted in s 3 and related definitions. Section 3, subsection (1) contains several amendment annotations indicating that the subsection was amended by No. 18 of 2021, s 295, with an application date of 05 November 2021. The same amendment annotation appears again in relation to the definition of Appeal Tribunal and certain other definitions in s 3(1) (s 3(1) amended by No. 18 of 2021, s 295).
Changes to entry provisions. Section 13(1) was amended by No. 29 of 2020, s 4, applied 17 November 2020. The notice and entry exceptions in s 13(2) were substituted by the same instrument (No. 29 of 2020, s 4), applied 17 November 2020.
Applications and information requirements. Section 23(5) was amended by No. 23 of 2021, s 157, applied 01 January 2022. The amendment affects the content requirements for applications to the Appeal Tribunal, for example the inclusion of particular types of information or evidence sufficient to identify the affected land, the plant and to include a copy of the folio of the Register under the Land Titles Act 1980.
Case management and dispute resolution considerations. Section 26 received amendment by No. 18 of 2021, s 296, applied 05 November 2021. The amendment added matters the Appeal Tribunal may take into account when considering whether to direct the parties to attempt to resolve their dispute, including threats of violence, existing restraining orders and participation in alternative dispute resolution.
Application of the Tribunal Act. Section 28 was substituted by No. 18 of 2021, s 297, applied 05 November 2021, and certain subsections were omitted as part of that amendment. The provisions align references in the Tasmanian Civil and Administrative Tribunal Act 2020 with the party structure and powers under this Act.
Parties to applications. Section 29(1) was omitted by No. 18 of 2021, s 298, applied 05 November 2021, affecting the statutory statements about who is a party.
Insertions relating to completion orders and enforcement. Section 33A was inserted by No. 29 of 2020, s 6, applied 17 November 2020, creating a statutory completion order power for affected landholders where ordered work has not been completed. In addition, s 34(4), making failure to comply with a Tribunal order an offence with a specified penalty, was inserted by No. 29 of 2020, s 7, applied 17 November 2020.
Incorporation notices for other Acts and instruments. Parts 6 and 7 of the Act state that amendments effected by this Part have been incorporated into the authorised versions of the Boundary Fences Act 1908 and the Local Government (General) Regulations 2015 respectively (see Parts 6 and 7, ss 41-44). The Act text does not set out the specific variations in that Part, but records that the authorised versions of those instruments include the amendments.
Date-of-application annotations. The statute text includes the relevant application dates for the cited amendment Acts, which indicate the times at which the particular textual changes took effect: No. 29 of 2020 amendments applied 17 November 2020; No. 18 of 2021 amendments applied 05 November 2021; No. 23 of 2021 amendment applied 01 January 2022.
This recorded amendment history is limited to those annotations contained in the text you provided. The Act requires ongoing administration, and s 40 assigns administration to the Minister for Justice until otherwise ordered; any further amendments would appear in subsequent amending Acts and in the authorised consolidated text. The Act also provides for an independent review as soon as practicable after the fourth anniversary of the commencement of s 39, which may have prompted further changes in practice or law, but that review report is not included in the provided statute text.
Litigation history
The statute text does not record any judicial or tribunal decisions, nor does it name any cases. The Act establishes the Tasmanian Civil and Administrative Tribunal (the Appeal Tribunal) as the decision-maker for disputes under Part 4 (s 3 definition; Part 4). It also contemplates Magistrates Court involvement for specific expense disputes under branch-removal provisions (s 21(5)-(7)).
Given the procedural design, the likely venues for recorded decisions relevant to this Act are:
Tasmanian Civil and Administrative Tribunal (TASCAT) decisions, which will be the repository for contested applications under Part 4, including orders and interim orders made under s 33 and completion orders under s 33A. The Act itself treats proceedings before the Appeal Tribunal as proceedings under the Tasmanian Civil and Administrative Tribunal Act 2020 and aligns party definitions and procedural references accordingly (s 28).
Magistrates Court decisions on disputes over whether the amount claimed under s 21(3) for branch removal expenses is fair and reasonable, where s 21(5) expressly permits an owner to apply to a magistrate. These determinations would be recorded in Magistrates Court records.
Potential appeal pathways from the Appeal Tribunal to any higher courts are governed by the Tasmanian civil and administrative appeal regimes and the Tribunal Act, but the Act text supplied does not set out appeal routes or name any reported authorities.
Because the statute text supplied contains no case law, no decisions, and no litigation summaries, there is no litigation history contained in the source to report. To locate decisions applying this Act, search the Tasmanian Civil and Administrative Tribunal records and aggregated legal databases for decisions referencing the Neighbourhood Disputes About Plants Act 2017 (or its operative name), and search Magistrates Court records for s 21 expense determinations. Any such searches should check the Tribunal’s database (s 37) for entries on orders and applications, which the Appeal Tribunal must maintain and make searchable for a prescribed fee (s 37(1)-(4)).
Gotchas
Several provisions are easy to misread and can create unintended procedural or substantive consequences if not observed precisely. Below are practical "gotchas" that practitioners and advisers should note, with the statutory source cited.
Statutory responsibilities do not automatically create a private cause of action. Section 10 imposes responsibilities on owners but s 10(3) explicitly states that the section does not create a civil cause of action for breach of those statutory responsibilities. Practitioners should not assume s 10 alone supports a standalone negligence or statutory-tort claim; private suits will have to rely on existing common law or other statutory causes.
Branch removal is tightly circumscribed by height, projection and timing rules. The branch removal notice route only applies where branches are 2.5 metres or less above the affected land and extend at least 50 centimetres from the relevant boundary (s 20(1)). Notices must give at least 30 days' notice before the specified day for removal (s 20(3)). These numerical thresholds are jurisdictional to the availability of the simple branch-notice route; branches above that height or that do not protrude sufficiently will require other routes (Tribunal application) or common law remedies.
The branch removal route does not authorise entry onto the land where the plant stands. If the owner fails to act, the affected landholder may sever and remove overhanging branches but is expressly not authorised under s 21(1) to enter the land where the plant is situated (s 21(2)). That can restrict access for complex root or stability interventions where entry on the plant-owner’s land is essential.
Cap on recoverable expenses may be prescribed. The affected landholder’s recovery against the owner for branch removal expenses is limited to a "prescribed maximum amount" (s 21(3)). The Act defers to regulations for the cap; failure to check the current prescribed maximum may lead to miscalculated expectations about recoverability.
Vendor disclosure obligations have civil and criminal-like consequences. Vendors must give a prospective buyer a copy of any application and supporting materials or orders before entering a contract of sale, and statutory fines apply for failure (s 16(1)-(2)). If a buyer enters without disclosure, the buyer has a statutory right to terminate the contract pre-settlement and to require deposit refund and recovery of reasonable legal expenses (s 17). A vendor who fails to disclose an order remains liable to ensure the work required is carried out even after transfer (s 18). Conveyancers and agents must be cautious of these statutory obligations.
Orders bind purchasers only upon effective disclosure. Section 34(2) binds a purchaser to an order only if the purchaser was given a copy of the order by the owner as required under s 16(1) before contract. If the owner failed to disclose, the purchaser may not be bound at settlement and the vendor may remain liable under s 18. The path-dependent nature of disclosure is essential.
There are notable spatial limits. The general 25 metre rule in s 7(4) excludes land more than 25 metres from the base of the trunk or stem-root connection from being "affected" except where the sunlight (s 7(2)) or view (s 7(3)) provisions apply. Practitioners must apply the 25 metre metric correctly to see whether Part 3 remedies are available.
Trees contributing to environmental protection can alter the Tribunal’s calculus. The Tribunal may consider the role of plants in protecting revegetation, waterways, foreshore protection, preventing landslip or soil erosion when assessing requests alleging unreasonable interference (s 32(e)). This is a built-in balancing factor that can justify retention.
Removal of a living plant is restricted. The Appeal Tribunal must be satisfied that destroying a living plant is necessary because the purpose of the application could not otherwise be attained before it orders removal or destruction (s 33(5)). This raises evidential and proportionality thresholds for removal orders.
Planning and other statutory consents may block or delay action. The Tribunal may defer proceedings until planning permits and appeals are determined (s 33(3)(a)). Applicants must identify any consents likely to be required when making the application (s 23(5)(f)). This layering can lengthen resolution timeframes and increase transactional and compliance costs.
Frequency restriction on branch notices. A landholder may not give a branch removal notice to the same owner within 12 months for the same plant (s 20(9)), unless the owner was not the owner at the earlier date (s 20(10)). This could prevent serial short-notice interventions over the same plant within a year.
Database update timing. The Tribunal must update its application and order database within 14 days of orders or variations (s 37(3)). Practitioners relying on searches for conveyancing due diligence should ensure that searches account for this update lag and check whether certified copies are available for the prescribed fee (s 37(4)).
Entries, safety and dwellings. Even where the Act authorises entry, there are limits: no entry into a dwelling (s 13(5)), and branch removal permissions do not include permission to enter any dwelling on the affected land or to permit unqualified persons to enter unless agreed (s 20(8)). Owners must keep land reasonably safe for entrants (s 13(6)). Failure to respect these limits can expose entrants to trespass or safety risks.
Fees and fee-relief. Applications require the prescribed fee, but the Tribunal chairperson may waive, reduce or refund fees where paying all or part would cause financial hardship (s 23(2)-(3), s 33A(3)-(4), s 36(2)). Fee relief may be available but is discretionary.
These provisions create multiple procedural traps where missteps, such as failing to disclose an order, issuing an invalid branch notice, attempting unauthorised entry, or ignoring required consents, can produce material legal and financial consequences.
How to comply
The Act sets out clear, sequential steps for resolving plant disputes. Below is a practical compliance checklist, tied to the statutory text, that owners, affected landholders, vendors, conveyancers and advisers can follow to stay within the Act.
Establish whether the Act applies and whether land is excluded. Check whether the plant sits on excluded land under s 9 (for example, council parks, rail corridors, Wellington Park, reserved Crown land, Forestry corporation land, permanent timber production zones). Confirm whether the plant is on a farm and planted or maintained for farm-management purposes, which the Act excludes (s 5(1)(b)). If the plant is prescribed as excluded, s 4(3) may apply.
Identify the plant and whether land is "affected". Apply the statutory definitions: locate the base of the trunk or the stem-root connection to determine whether the plant is situated on land (s 4(4)). Apply the rules in s 7 to determine whether the land is affected: check for branches overhanging (s 7(1)(a)), potential or actual serious injury or serious damage within 12 months (s 7(1)(b)(i)-(ii)), or substantial, ongoing and unreasonable interference with use and enjoyment (s 7(1)(b)(iii)). For sunlight, solar panels and views, apply the specific requirements in s 7(2) and s 7(3). Note the 25 metre general limit in s 7(4).
Attempt informal resolution. Engage in the neighbour-based dispute steps required by the Act: an affected landholder may request the owner to act verbally or in writing (s 19(1)). Both affected landholders and owners must make reasonable attempts to prevent or minimise the effect of the plant (s 19(2)). Document requests and responses; the Tribunal will later consider whether reasonable attempts were made before hearing an application (s 26).
Use the branch removal notice route where applicable. If overhanging branches are 2.5 metres or less above the affected land and extend at least 50 centimetres beyond the boundary, the affected landholder may give a branch removal notice (s 20(1)). Ensure the notice includes the specified day (minimum 30 days’ notice, s 20(3)), asks the owner to nominate who will carry out the work and gives permission for named persons to enter the affected land on the specified day between 8 a.m. and 5 p.m. to sever and remove branches (s 20(2)(a)-(c)). Provide at least one written quotation for the work and a copy of Part 3 with the notice (s 20(6)). Remember the restrictions: permissions do not include entry into dwellings, and permission does not extend to unqualified persons unless the owner agrees (s 20(8)). Do not issue a new branch removal notice to the same owner for the same plant within 12 months, unless the owner has changed (s 20(9)-(10).
If the owner fails to act on a branch notice, recover expenses properly. If the owner does not remove the overhanging branches by the specified day, the affected landholder may sever and remove them or arrange for removal, but cannot enter the plant-owner’s land to do so (s 21(1)-(2)). Recover reasonable expenses from the owner as a debt, noting that recovery is limited to a prescribed maximum amount (s 21(3)-(4)). If the owner disputes the amount, the owner may apply to a magistrate who can substitute an amount which then becomes payable (s 21(5)-(7)). Keep written quotations, receipts and records to substantiate claims for expenses.
Prepare and lodge an Appeal Tribunal application where appropriate. If informal processes and branch notices do not resolve the issue or if the matter involves serious injury, serious damage or substantial and ongoing interference, a landholder may apply to the Appeal Tribunal under s 23. Ensure the application complies with s 23(5): be in writing, pay the prescribed fee (or seek fee waiver if hardship applies, s 23(3)), include sufficient information to identify the affected land and plant, include a copy of the folio from the Land Titles Register under the Land Titles Act 1980, set out grounds and relief sought, list persons to be notified under s 24 and specify any consents likely to be required (s 23(5)(a)-(f)). Anticipate that the Tribunal may require further particulars under s 25.
Give the required notices for Tribunal proceedings. The applicant must give notice of the application to the owner of the land on which the plant is situated, any interested government body entitled to appear, and any other person who would be affected if relief were granted (s 24). The Tribunal may itself serve such notices (s 24(2)).
Anticipate planning and consent issues. Identify whether any works would require planning approval or other statutory consents. The Tribunal must consider planning scheme provisions and may defer proceedings until permits are sought or planning appeals determined (s 30(a), s 33(3)(a)). Include details of necessary consents in the application (s 23(5)(f)). If a government body must consent, they may appear in proceedings (s 27).
Comply with Tribunal orders and keep records. If the Tribunal makes an order, comply within the time and terms specified. Orders are binding on parties to the proceedings and, if disclosed as required, on purchasers at settlement (s 34(1)-(2)). Keep copies of orders and record any variation notifications the Tribunal gives under s 36(4). Note that failure to comply with an Appeal Tribunal order is an offence carrying a fine up to 100 penalty units (s 34(4)).
Vendors and conveyancers: observe disclosure obligations. Before entering into a contract of sale, vendors must give prospective purchasers a copy of any application and materials or any Tribunal order relating to the land (s 16(1)). If an owner gives a copy of an application to a prospective purchaser, the owner must notify the Tribunal when that person enters into a contract and joins the proceedings (s 16(2)). Failure to disclose triggers penalties and provides contractual termination rights to purchasers (ss 16-18).
Use the Tribunal database and searches for due diligence. Before sale or purchase, search the Appeal Tribunal’s database of orders and applications. The Tribunal must maintain and update the database within 14 days after orders or variations and allow searches and certified copies for a prescribed fee (s 37(1)-(4)). Certified searches help ensure purchasers are given correct information under s 16.
If work requires entry on the plant-owner’s land, seek Tribunal authorisation. Branch removal provisions do not authorise entry onto the land with the plant (s 21(2)). If entry onto that land is necessary to carry out required work, a Tribunal order can authorise entry for the purpose of giving effect to an order (s 33(6)(d), s 33A(2)(a)). Completion orders under s 33A permit affected landholders to enter and complete work where an original order has not been followed and allow recovery of reasonable expenses.
Ensure safety, qualifications and legal compliance for any entrants or contractors. Where persons are authorised to enter, limit entry to reasonable times and extent, and do not enter dwellings (s 13(4)-(5)). Owner must make land safe for authorised entrants, including restraining animals (s 13(6)). For branch removal, owners may exclude unqualified persons from entering (s 20(8)). Also ensure compliance with other statutory prohibitions and obtain consents where required because the Act does not authorise otherwise unlawful work (s 14).
Consider fee waivers and hardship relief where applicable. Where fees are payable for applications or completion orders, the Tribunal chairperson has discretion to waive, reduce or refund fees on grounds of financial hardship (s 23(3), s 33A(4)).
Record and retain documentation. Keep records of requests under s 19, branch removal notices and accompanying quotations under s 20, folios and evidence for Tribunal applications under s 23(5), and receipts and invoices for recovery under s 21. These documents will underpin enforcement, magistrates’ determinations, Tribunal decisions and conveyancing obligations.
Following these steps aligns practice with the Act’s procedural and substantive mandates. Practitioners must also monitor regulatory instruments for prescribed amounts and forms, and remain aware of the Tribunal’s database as a part of conveyancing due diligence (s 38, s 37).
(a) a person who holds an office established under an Act and performs functions, under an Act, that relate to the regulation of plants; or
(b) a State authority that performs functions, under an Act, that relate to, include or require the regulation of plants; or
(c) a council;
landholder, in relation to land, means –
(a) an owner of the land; and
(b) an occupier of the land;
occupier, in relation to land, means a person who is entitled to the immediate possession and occupation of the land;
owner, in relation to land, means –
(a) every person who jointly or severally, whether at law or in equity, is entitled to the land for any estate in freehold in possession; or
(b) if the land is common property within the meaning of the Strata Titles Act 1998 – the body corporate formed under that Act in relation to the land; or
(c) if the land is held under a tenancy for life – the person who is the life tenant; or
(d) if the land is held under a lease for a term of not less than 99 years or for a term of not less than a period that is prescribed – the person who is the lessee of the land; or
(e) if the land is Crown land and is not land subject to a lease (other than a lease under the Residential Tenancy Act 1997 ) or a relevant licence – the Minister, authority or other person responsible for managing the land; or
(f) if the land is Crown land and is subject to a lease (other than a lease under the Residential Tenancy Act 1997 ) or a relevant licence – the holder of the lease or licence; or
(g) any other person who holds a prescribed interest in the land;
party, in relation to an application, means –
(a) the applicant; and
(b) the owner of the land on which is situated the plant to which the application relates; and
(c) any other person who is joined under section 29 as a party to the application;
person includes the Crown;
plant – see section 4 ;
relevant licence means a licence, in relation to land, that gives to the holder of the licence –
(a) an exclusive right to occupy the land; or
(b) responsibilities for the management of vegetation on the land;
[Section 3 Subsection (1) amended by No. 18 of 2021, s. 295, Applied:05 Nov 2021]
State authority means a body or authority, whether incorporated or not, that –
(a) is established or constituted under a written law or under the royal prerogative; and
(b) is a body or authority which, or of which the governing authority, wholly or partly comprises a person or persons appointed by the Governor, a Minister or another State authority;
work, in relation to a plant, includes –
(a) severing and removing any part of the plant, including its branches or roots; and
(b) netting the plant; and
(c) attaching or removing cabling to a plant or land; and
(d) destroying the plant in any way (including by poisoning, uprooting, ringbarking or cutting down the plant) and removing the plant and every part of the plant.
(2) For the purposes of this Act, but subject to section 8 , a person who is an owner of land by virtue of paragraph (c) , (d) , (f) or (g) of the definition of owner in subsection (1) is only to be taken to be an owner of so much of that land as is land to which any of those paragraphs applies and is not to be taken to be an owner of so much of the area of land as is not land to which any of those paragraphs applies.
4 Meaning of plant and plant situated on land
4 Meaning of plant and plant situated on land
(1) In this Act –
plant means any plant or part of a plant.
(2) In this Act, plant includes –
(a) a tree; and
(b) a hedge or group of plants; and
(c) fruits, seeds, leaves, or flowers, of a plant; and
(d) a bare trunk; and
(e) a stump rooted in land; and
(f) any root of a plant; and
(g) a dead plant.
(3) Despite subsections (1) and (2) , plant does not include a member of a class of plants that is prescribed to be a class of plants to which this Act does not apply.
(4) For the purposes of this Act, a plant is situated on land if –
(a) the base of the trunk of the plant; or
(b) a place at which a stem of the plant connects with the roots of the plant –
is, or was, situated in whole or in part on the land.
5 Act does not apply to certain plants
5 Act does not apply to certain plants
(1) This Act does not apply to, or in relation to, a plant that is situated on –
(a) excluded land; or
(b) a farm within the meaning of the Primary Industry Activities Protection Act 1995 , if the plant is planted or maintained for a purpose that is necessary or desirable for the management or operation of the farm.
(2) This Act does not apply to, or in relation to, a plant that forms a fence in relation to which a notice may be issued under section 48 of theBoundary Fences Act 1908 .
(3) This Act does not apply to, or in relation to, plants planted or maintained –
(a) for the purpose of enabling the sale of the plant; or
(b) under an order of a court or tribunal other than an order for the purposes of this Act.
6 Act binds Crown
6 Act binds Crown
This Act binds the Crown in right of Tasmania and, so far as the legislative power of the Parliament permits, in all its other capacities.
7 When land is affected by plant
7 When land is affected by plant
(1) Subject to this section, for the purposes of this Act, land (affected land) is affected by a plant that is situated on another area of land if –
(a) branches of the plant overhang the affected land; or
(b) the plant has caused, is causing, or is likely within the next 12 months to cause –
(i) serious injury to a person on the affected land; or
(ii) serious damage to the affected land or any property on the affected land; or
(iii) substantial, ongoing and unreasonable interference with the use and enjoyment by a person of the affected land.
(2) Without limiting the generality of subsection (1)(b)(iii) , a plant may cause substantial, ongoing and unreasonable interference with the use and enjoyment by a person of affected land by virtue of causing sunlight to be severely obstructed from reaching –
(a) a window (including a window in a door) of a building on the affected land; or
(b) a solar photovoltaic panel, a solar collector for a solar hot water system, or a skylight, situated on a roof of a building on the affected land.
(3) Without limiting the generality of subsection (1)(b)(iii) , a plant may cause substantial, ongoing and unreasonable interference with the use and enjoyment by a person of affected land by virtue of causing a view from a dwelling on the affected land to be obstructed, but only if –
(a) the plant is at least 2.5 metres high; and
(b) the plant causes the view to be severely obstructed; and
(c) the person is an owner of the land and the view from the dwelling was not so obstructed when the person took possession of the affected land.
(4) For the purposes of this Act, land is not affected by a plant, other than as referred to in subsection (2) or (3) , if no part of the land is situated within 25 metres from –
(a) the base of the trunk of the plant; or
(b) a place at which a stem of the plant connects with the roots of the plant.
(5) For the purposes of this Act, land is not affected by a plant if the land is excluded land.
(6) For the avoidance of doubt, but subject to this section, land may be affected by a plant on other land even if the land does not adjoin the other land.
8 Where plant situated on more than one area of land
8 Where plant situated on more than one area of land
(1) If a plant is situated partly on one area of land (the first area of land) and also partly on another area of land (thesecond area of land) –
(a) the first area of land is to be taken to be affected by the plant as if the plant were situated wholly on the second area of land if, were the plant so situated, the first area of land would be taken under section 7 to be land affected by the plant, but is only to be so taken to be affected by the plant to the extent to which the plant is situated on the second area of land; and
(b) the second area of land is to be taken to be affected by the plant as if the plant were situated wholly on the first area of land if, were the plant so situated, the second area of land would be taken under section 7 to be land affected by the plant, but is only to be so taken to be affected by the plant to the extent to which the plant is situated on the first area of land.
(2) Despite subsection (1) , a reference in Division 2 of Part 4 to –
(a) the owner of land on which a plant is situated is to be taken to include a reference to the owner of the first area of land and to the owner of the second area of land; and
(b) the landholder in relation to an area of land is to be taken to include a reference to the landholder in relation to the first area of land and to the landholder in relation to the second area of land –
and an order under that Division may be issued to both an owner of the first area of land and an owner of the second area of land, as if they were the joint owners of both areas of land, or to either an owner of the first area of land or an owner of the second area of land.
9 Meaning of excluded land
9 Meaning of excluded land
In this Act, excluded land is land –
(a) that is owned or managed by a council and is used as a public park or garden, a reserve or a public open space or for the purposes of conservation; or
(b) on which is situated the rail network, within the meaning of the Rail Infrastructure Act 2007 ; or
(c) that is within a corridor, within the meaning of the Strategic Infrastructure Corridors (Strategic and Recreational Use) Act 2016 ; or
(d) that is within Wellington Park, within the meaning of the Wellington Park Act 1993 ; or
(e) on which is situated a State highway, or a local highway, within the meaning of the Local Government (Highways) Act 1982 ; or
(f) that is unalienated Crown land; or
(g) that is reserved land under the Nature Conservation Act 2002 ; or
(h) that is reserved under the Crown Lands Act 1976 or reserved for a public purpose under any other Act; or
(i) that is owned by the Forestry corporation; or
(j) that is permanent timber production zone land within the meaning of the Forest Management Act 2013 or land, on which timber production occurs, that is a type of land that is prescribed; or
(k) that is prescribed land.
Part 2 Rights and Responsibilities in Relation to Plants
Part 2 Rights and Responsibilities in Relation to Plants
Division 1 Responsibilities generally
Division 1 Responsibilities generally
10 Responsibilities in relation to plants
10 Responsibilities in relation to plants
(1) An owner of land on which a plant is situated is responsible for severing and removing any branches of the plant that overhang another area of land.
(2) An owner of land on which a plant is situated is responsible for ensuring that the plant does not cause –
(a) serious injury to a person on another area of land; or
(b) serious damage to another area of land or any property on another area of land; or
(c) substantial, ongoing and unreasonable interference with the use and enjoyment of another area of land.
(3) This section does not create a civil cause of action based on breach of a responsibility referred to in this section.
11 Joint liability of landholders for plants situated on their land
11 Joint liability of landholders for plants situated on their land
If there is more than one owner of land on which a plant is situated –
(a) each of the owners of the land is jointly and severally responsible and liable for and in relation to the plant; and
(b) a notice that may or must be given under this Act to an owner
This is an opening excerpt, not the complete document.