Do your neighbour’s trees block out the sunshine on your property?
According to the by-Laws relating to trees, the power of the Municipality to deal with trees growing on private property is limited to the cutting back of such trees that protrude onto municipal property. According to the Public Health Bylaws and the By-Laws relating to Street Trees, there are two approaches that can be adopted, namely:
1. To attempt to induce the Municipality to Act; and
2. To seek an interdict.
First Method: Statutory Relief
1. A Public Health Nuisance is defined as:
” … the use of any premise or place in a manner which creates conditions that … compromise any aspect of public health to an extent that is more than trivial or insignificant, and without limitation includes those circumstances in which a public health nuisance is considered to exist in terms of Schedule 1″;
2. In the circumstances, any conduct which compromises public health to an extent that is more than trivial or insignificant is a public health nuisance, in terms of the By-Laws, and those conditions that are listed in Schedule 1 to the By-Laws ipso facto fall within the classification of a public health nuisance;
3. Although the presence of trees that cause a nuisance to a neighbour is not expressly prohibited, Section 1 (j) of The Public Health By-laws prohibits the presence of weeds, long grass and undergrowth which is likely, inter alia, to become a nuisance, and Section 1 (l) authorises the Council to treat as a public nuisance:
“…Any other condition at or on a place or premises whatever, which in the opinion of the council is or can be detrimental, dangerous, inconvenient, offensive, injurious or dangerous to health … “;
4. Section 3 (2) of Chapter 2 of the Public Health By-Laws provides that any person who owns or occupies premises in a municipal area must ensure that they are used or maintained in a manner that ensures that no public health hazard or public health nuisance occurs on the premises (See Page 12 of the Public Health By-Laws);
5. Section 8 (1) of the Public Health By-Laws prohibits any person from causing a public health nuisance anywhere in a public area (See Page 14 of the Public Health By-Laws);
6. Section 18 (c) of the Public Health By-Laws permits the Council to reduce, remove or minimise the public health nuisance (See Page 18 of the Public Health By-Laws);
7. Section 172 (1) (b) of the Public Health By-Laws, read with Section 171 (a) provides for the Council to issue Notices for the purpose of (enforcing compliance) with the Public Health By-Laws;
8. The By-laws contain numerous provisions that premises have adequate light, and this supports the principle that a deprivation of light is a health hazard per se.
Second Method: Seeking an Interdict
The leading case is:
Vogel v Crewe and Another 2003 (4) SA 509 (T)
The relief sought in that case was refused on the grounds that the evidence did not support the contention that it was necessary to remove the trees. In this case,trees blocked the gutters and sewerage systems and shed leaves into the swimming pool and surrounding areas, and also damaged a concrete wall, but not severely.
The Court held that there is a need to accept a certain degree of inconvenience from trees in return for the shade that they provide, and that less drastic means of alleviating the problem than cutting down the trees, existed.
If the trees cause more damage, such as major damage to a wall, or total blocking out of light to your property, you could get an order from a court, if a balancing of parties’ interests is necessary.