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6 Briefly discuss the facts and decision in Malherbe v Ceres Municipality ( (4 ) SA (A)). (10) Facts The appellant, Malherbe, approached the court for an. In Malherbe v Ceres Municipality () the Court confirmed that if the branches of your neighbour’s tree overhang onto your property, or where the roots grown. prescribed text book. ▫ Malherbe v Ceres Municipality 4 SA A.(Case number [8] in the case book). ▫ Gien v Gien 2 SA T.(Case number [5] .

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Trees on city-owned land that has been leased out, is the responsibility cerds the lessee, but approval for any work must be obtained from City Parks in writing. If Crewe should refuse, Vogel will then be entitled to cut off the overhanging branches, in line with the boundary; 3. This website contains general information about legal issues and developments in law. Based on the evidence before it, the Court dismissed the application as: It is accepted that City Parks is the lead department responsible for tree management including streetscapes and avenue planting, cluster planting, historic trees and all other municopality of trees within the City.

In terms of our private nuisance law, every property owner has a right to unimpeded enjoyment of his land. No case had been made out why the removal of the trees was necessary. But often more than a fence is needed to maintain good neighbourly relations!

TROUBLE WITH THE NEIGHBOURS

Due to the threat to the property the house the court ordered the municipality to remove the trees. A very important development which this case brought about, is that the Court highlighted the changed times we are living in and the increasing awareness of the importance of protecting our environment which means that even if the inconvenience and damages are apparent, the Courts will not hastily decide that trees be removed if there are other less drastic measures which could be taken to deal with the problem rather than removing the trees.

The branches can only be cut in line with the boundary. They should not be construed as legal advice. Vogel and Crewe were neighbours and Crewe was of the opinion that a tree planted about two metres from the wall, separating the two properties, was the cause of all the problems on his property. The problem was that they chose to plant oak trees, which have strong lateral root systems that drain the soil surrounding them.

In terms of our private nuisance law, every property owner has a right to unimpeded enjoyment of his land. Therefore, if you approach the Court and present a convincing case why the removal of trees is necessary, the Court will grant you the relief sought.

Clearly a conflict between these two rights is possible and when courts are presented with such disputes, a balance of the interests of the two parties is considered.

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Tree Nuisance – STBB

They will not order the removal of overhanging branches for the shedding of leaves. If Crewe should refuse, Vogel will then be entitled to cut off the overhanging branches, in line with the boundary. These, he complained, were blocking gutters and the sewage system, shedding leaves in his swimming pool and surrounding areas and were also damaging his concrete wall and parking area. No drastic action, like removing the tree, was necessary and Crewe failed in his application.

Crewe was not able to prove that the problem with the leaves in his swimming pool, gutters and sewage system was caused by the tree in question, and the court found that the wall separating the two properties could easily be repaired.

Vogel applied to Court for an order to have the trees removed, alleging that the trees had given rise to problems caused by overhanging branches and encroaching root systems. Surely his enjoyment cannot be at the cost of someone else? In the case Bingham v City Council of Johannesburg WLDthe municipality planted trees along the footpath for beautification purposes.

Applying these principles, the Court indicated that it is also important to bear in mind that trees form an essential part of our human environment, not only in terms of municipalihy us aesthetic pleasure, but also functionally in the provision of shade and oxygen and environmental soundness. When you confront him, he flatly refuses to do anything about it, since they are, after all, trees he and his wife planted when they bought the property 30 years ago!

Courts will not hastily decide that trees be removed if there are malherb less drastic measures which could be taken to deal with the problem rather than removing the trees. They took into account the benefits of protecting the tree, being its visual pleasure, shade, and the oxygen it produced, as opposed to the trouble it was causing Crewe. The matter of Vogel v Crewe is also significant in this regard as environmental cfres were included in the assessment of what was objectively speaking, reasonable.

However, do not go rushing headlong into litigation if there are other less drastic measures which could be taken to deal with the problem. This will only result in high municipalkty costs and an inevitable, irreversible falling out with your neighbour.

Should you require legal advice please contact one of our attorneys directly at the given contact addresses.

The Court confirmed that the test to be applied in deciding whether the nuisance complained of is actionable in other words, is worthy to be determined by means of a Court actionis the objective reasonableness test which seeks to strike a balance between the competing interests of the parties. Rightly so as these irritations may seem trivial when weighed against the value of maintaining civil relations with those living in close proximity to you.

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Vogel and Crewe were neighbours since and in they jointly erected a concrete fence between their properties. The difficulty, however, arises when the actions of our neighbours, whether direct or indirect, make us suffer some kind of loss, whether this be a loss of the use and enjoyment of our property or a monetary loss.

Such materials are for informational purposes only and may not reflect the most current legal developments. No case had been made out why the removal of the trees was necessary; 2. Applying these principles, the Court indicated that it is also crucial to bear in mind that trees form an essential part of our human environment, not only in terms of giving us aesthetic pleasure, but also functionally in the provision of shade and oxygen and environmental soundness.

Vogel applied to Court for an order to have the trees removed, alleging that the trees had given rise to problems caused by overhanging branches and encroaching root systems. Some particular instances are described hereafter.

These, he complained, were blocking gutters and the sewage system, shedding leaves in his swimming pool and surrounding areas and were also damaging the concrete wall and his parking area.

Trees with lateral root systems are often a culprit in neighbourly disputes. Always contact your legal adviser for specific and detailed advice. He most certainly has the right to do on his property as he pleases, but what about my right to use and enjoy my property? The Court further indicated that the concrete wall was not severely damaged and the parties could repair the wall rather than remove the trees. And, like any other living thing, trees also require in return for pleasure provided a certain amount of effort and tolerance.

Where do you stand as a property owner and what action can you take? Hopefully you will be able to resolve tree-related issues with your neighbour in a courteous way, and remember, you also have the right to enjoy your property. And, like any other living thing, trees also require in return for pleasure provided a certain amount of effort and tolerance. If branches encroach on the land of a neighbour and cause a nuisance the neighbour may request the owner to remove the branches and if the owner fails to remove them within a reasonable time after demand the neighbour may:.

Requests therefore must be directed to the Area Manager for City Parks for the particular area where the tree is located.