Save the trees? What about saving the solar panels? Dare I say it, I like trees even more than solar panels, and that’s a hell of a lot. But in a cruel twist of irony, it’s obvious they are not compatible bedfellows.
Recently I published an article entitled Your ‘Right To Light’: Solar Panel Overshadowing Rules By State, in which I covered state-by-state regulations on the overshadowing of solar panels by new neighbouring developments.
Some commenters rightly brought to my attention that a potentially bigger issue for rooftop solar owners might be shade from neighbouring trees. In response, I’ve decided to branch out with a new article and get to the root of the matter to see if they’re barking up the wrong tree.
Laws Around Shade From Neighbouring Vegetation
Similarly to overshadowing by new neighbouring developments, your local council is the go-to authority if you have a not-so-neighbourly dispute regarding vegetation coming from across the fence. They will have a policy based on state laws and regulations that may or may not exist.
There is specific legislation in only three of our states and territories. New South Wales, Queensland, and Tasmania have laid down the law, although you’d be hard-pressed to find the words ‘solar panel’ mentioned.
In the other states and territories, the ‘common law’ principle is applied. Generally, you can prune a neighbour’s overhanging hedge from your side of the fence, but beware – you may cop a fine, so you better read the fine print.
In all cases, if there is a dispute, you should talk to your neighbour and try to find an amicable solution. It may involve each person compromising. That’s why it’s best to keep things civil to give your negotiating skills the best chance of an outcome. Mediation would be the next step. As a last resort, before you donate your hard-earned money to a lawyer, you should first be clear on the rules in your neck of the woods.
Let’s not beat about the bush. This sort of bad behaviour has got to be cut back.
Detailed Breakdown: State And Territories
New South Wales
If a high hedge from your neighbour blocks sunlight, you may have a legal right to trim or remove the hedge. Make sure to apply for permission from the local council for a permit or development approval before you do anything.
The Trees (Disputes Between Neighbours) Act 2006 (NSW) enables a neighbour to obtain court orders to force the hedge owner to prune or remove a high hedge. Part 2A of the Trees Act deals with ‘high hedges that obstruct sunlight or views’:
14E (2) The Court must not make an order under this Part unless it is satisfied that:
(a) the trees concerned:
(i) are severely obstructing sunlight to a window of a dwelling situated on the applicant’s land, or
(ii) are severely obstructing a view from a dwelling situated on the applicant’s land.
‘Window’ includes a glass sliding door, a door with a window, a skylight, and any other similar thing. Is a solar panel classed as ‘any other similar thing’? Your guess is as good as mine.
Victoria
In Victoria, there is no specific law that deals with tree disputes. Trees are covered by general property law and ‘common law’, which is the law the courts have developed over time. A tree owner has no legal obligation to maintain their tree unless it’s causing damage or nuisance.
Mediation is recommended if you can’t agree with your neighbour about managing a tree that blocks light or views. DSCV (Dispute Settlement Centre of Victoria) can help you resolve a dispute without having to resort to taking legal action.
In 2019, The Victorian Law Reform Commission recommended a new law to deal with neighbourhood tree disputes. It’s unclear whether access to sunlight was within the scope of this inquiry.
Queensland
The Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 refers to the obstruction of sunlight to a neighbour’s land, but not specifically solar panels.
(3) Subsection (2)(b)(ii) applies to interference that is an obstruction of sunlight or a view only if — (a) the tree rises at least 2.5m above the ground; and (b) the obstruction is — (i) severe obstruction of sunlight to a window or roof of a dwelling on the neighbour’s land; or (ii) severe obstruction of a view, from a dwelling on the neighbour’s land, that existed when the neighbour took possession of the land.
(4) Despite the Property Law Act 1974, section 178, QCAT may make an order under subsections (2)(b) and (3) that is intended to result in the access of light to land.
(6) In this section — window includes a glass door, window forming part of a door, skylight or other similar thing.
QCAT (Queensland Civil and Administrative Tribunal) has used this provision to make orders for the removal of trees that degraded the performance of an existing thermal solar hot water system and which also prevented the possibility of installing solar PV panels.
Western Australia
Western Australia has no laws or regulations pertaining to trees or vegetation shading a neighbouring property. The Local Government Act 1995 (WA) gives councils the power to take action against property owners whose trees are unsafe to nearby people or property, but nothing is mentioned about sunlight or solar panels.
Advice from my local WA council is that:
“disputes relating to trees on private properties are a civil matter between the adjoining owners and do not generally involve local councils unless it’s a safety issue.”
Under common law, you are allowed to cut an overhanging branch back to the point where it enters your property unless a tree preservation order protects the tree or there is an express easement or restrictive covenant.
South Australia
No specific legislation around neighbouring trees exists in South Australia. The rights of an affected neighbour in any dispute are mainly covered by the common law about liability for nuisance and negligence. If a neighbour’s tree protrudes over your side of the fence, it may be cut at the boundary line.
In most cases, there is no liability for problems caused by a tree entirely on the tree owner’s side of the boundary. There is no general right to sunlight or to an unimpeded outlook (unless there is an easement protecting that right). Therefore, there can be no liability for shading by a tree growing on your neighbour’s land.
Tasmania
In Tasmania, you are covered in The Neighbourhood Disputes about Plants Act 2017. It seems the powers that be have no problem letting you wield the axe if a tree throws shade on your solar panels. See Section 7:
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 – (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.
Australian Capital Territory
Some trees in the ACT are protected under the Tree Protection Act 2005 (ACT). However, if a neighbour’s tree grows over into your property, you may be entitled by law to trim the branches as far as they overhang. Check first to see whether the tree you want to trim is registered or regulated. Otherwise, you may end up with a fine.
Under Schedule 1 Item 1(1)(e) of the Tree Protection (Approval Criteria) Determination 2006 (No 2), the Conservator may give approval to damage a regulated tree when: “the tree is substantially affecting solar access to the lessee’s lease, or neighbouring lease, during winter between the hours of 9am to 3pm and pruning is not sufficient to remedy this (excluding remnant eucalypts)”.
Note that ‘solar access’ does not exclusively refer to a solar panel’s access to the sun, but rather the sunlight on the entire leased block.
“Examples of reasonable remedial treatments or measures for a regulated tree:(5) thinning, selective pruning or reduction pruning on trees to provide solar access and property alignment to private dwellings undertaken every two years.”
Northern Territory
The Northern Territory relies on common law principles of nuisance, negligence, and abatement when dealing with neighbouring tree disputes. You have the right to cut off branches or roots extending over your property’s fence line. As in all cases, it is recommended to talk to your neighbour first.
In 2018, the Attorney-General and Minister for Justice asked the Northern Territory Law Reform Committee to investigate and report on possible law reform concerning tree-related disputes. Recommendations relating to sunlight and solar panels included:
Recommendation 4 – The amendments to the Fences Act 1972 should include the following modifications to the provisions:
(c) Obstruction of sunlight to solar panels and solar hot water systems should be included in the matters that may give rise to a tree-related dispute within the meaning of the statutory provisions, provided the obstruction was not in existence when the solar panels or solar hot water system was installed.
Watch this space.
A Legal Void In An Urban Jungle
Unlike the many trees and solar panels vying for survival in our urban jungles, suitable laws governing their coexistence are as rare as a four-leaf clover in the Simpson Desert. Given this legal void, common courtesy is the best way to resolve disputes. Rather than casting shade on your neighbour, it’s always best to engage in a civil dialogue and explore mediation options before considering legal action.
About Kim Wainwright
RSS - Posts
Our challenge is an enormous old pine tree that’s on the other side of the road, a Council tree. In winter it shades our entire roof by about 3-3.30pm every day. I did ask Council if they had any plans for the tree, as it’s so big that it also represents a danger to houses if it were to fall in a storm, and would also take out powerlines on both sides of the street. So far they’re not planning to do anything with it. It does provide nice shade for a school bus stop in the summer, so it’s not like we’re at war with the tree. But it cripples our solar output by mid-afternoon, in winter.
We have a similar situation, except the trees in question are in NSW government administered reserve. During the previous bushfire season
We were evacuated 5 times. There are around 60 trees in front of us, about fifteen are over 20 metres high and would hit our house if they fall. In winter they block sun except between 10 and 2, rendering solar doubtful. Bega Valley Council will only remove trees if they are dead or close to it. We have planted more than 200 trees on our block, but Council treats us and our neighbours as if we are vandals by asking for asking for them to be removed or trimmed. With climate change radically altering the weather the very measures that would reduce the impact, ie, replacing old technology with solar, are blocked
We’re the same, we have the most trees on our block of anybody in the street, we love gardens. It’s just that the Council tree is completely inappropriate for where it is, in fact I suspect the school over the road planted it decades ago. I work for local government and trees (like dogs) are an incredibly complex social thing to get right. There’s no need to sacrifice having them though, there are plenty of species that can provide excellent street appeal and shade without shading roofs or threatening property.
I really hope that these laws will be updated to consider the impacts on solar power. Solar panels aren’t feasible on our roof because very large gum trees shade the most productive side of our roof for most of the day during winter,
The trees are located on the council strip, and the council says they don’t have a policy of pruning or removing trees to accomodate solar panels on residents’ roofs.
A lot of this is legacy decisions, poor selection of species to use as street trees. A huge tree in the nature strip is a headache for Councils as much as residents, in many situations. I’m a huge advocate for urban trees, but they have to be properly selected and managed.
Kim there is a lot rolled into all the regulations and rules you have cited, but if we specifically focus on Solar Panel based regulations and laws around complaints by Solar System owners against others nearby who for any variety of reasons are in charge of something that is [or will] obstruct light and thereby reduce a solar PV systems output performance; then there is zero case law to be found in Australia on this subject.
Complaints about trees overhanging into neighbouring properties or degrading human amenity regarding light and windows YES plenty. Solar PV NIL.
Common sense and cooperation is the simple answer. There are no enforcement rights.
Lawrence Coomber
Hi, thanks for sharing information regarding tree overshadowing solar panels.
I have a huge council tree blocking morning sun to my panels. Due to this i am unable to even consider installing bigger capacity panels. The tree is more of a safety issue througout out the year due to dropping fruits causing slip and trip hazard and big branches falling during windy days. How do i tacke this in WA? MANISH S. THANKS
I like your article/ blog as it’s now called, it sounds as if there is no ruling or real guidance in this area and if the courts are to rule on an outcome, the magistrates usually haven’t got a clue.
Like you I would rather the tree, if healthy, be given precedence and the solar panels placed elsewhere, I mean after all they were there first sometimes by over 100 years and do absorb carbon out of the air, release back oxygen. Now I’m a total disbeliever in ‘common sense as I don’t believe that sense is common in any case. We are all individuals and all have our own idea of how things should be with some not willing to compromise on their point of view. So there is but one end result of a dispute about trees or solar panels precedents, and that is one party is going to be disappointed. My solution is defiantly preferable, we are traveling Australia in a motorhome with adequate solar power to sustain us off grid most of the time, lack of drinking water is the essential necessity of life that brings us to town, though we try not to think too much about the diesel we need to get back to town, there is a blind eye there to be sure.
Cheers Tom Soltau
We have a neighbour with a tree that reduces sunlight onto our solar panelled roof from about 2.pm in winter and about 3pm in summer .
We asked our neighbour if we could share the cost of its removal but alas they approved only the trimming the overhanging branches , alas those branches have pretty much grown back .
The tree commonly known as a Leopard tree has grown from a seed amongst many millions that drop . Ah trees and fences .
The tree established first .
Don’t want to litigate , hope they will move on ?
SEQ Brian
Ive been informed that the Gold Coast the council gives precedence over solar panels to trees on my 10 acre property which completely kiaboshes my only chance of installing a solar PV system. I havent given up however and have a meeting onsite with a council tree arborist to try harder. Ive had to put tree felling and shed building on hold to wait for him to arrive. 🙂
Preplanning seems to be the key. If a tree is pre-existing and not on your property, make sure you do not put solar panels on that part of your roof on which it casts shade. Solar panels can also be put on sheds and pergolas. In at least one of the photos above, it looks like the tree was there before the panels.
Remember the role of deforestation in global warming, leading to the rise in popularity of solar panels in the first place. Locally trees are extremely important in combatting the “urban heat” effect. If all suburbanites said “yes I agree in general but that particular tree which affects me has to go” the results may be very counter productive.
NSW new build
The house across the road was finished this year and placed their solar panels on the west side which is along one side on their house knowing that there are trees on a council property next door instead of the north side of their house which is the front of their house because it would make the house look more ugly and affect it value even though the house has a dark colour roof. Odd logic
I am amused by this debate re the cutting down of trees so owners can access more sun to drive their solar panels. Surely we need to have a more intelligent debate around environmental protection & climate change due to Australia’s horrendous history of land clearing, which is not reducing particularly in QLD. Is the only reason for solar panels, to save money & therefore no consideration for the environment? I f this is so, we need to look holistically @ the lifespan of solar panels & what happens to them after they reach their usefulness. This is not a simple topic, but still, lets have a broad range of consideration re the health of our beautiful planet.
Mark, Renew (magazine & website) have lots of stories with relevent data on the benefits of solar panels far outweighing their lifetime costs. How many objects have you bought that will last 25 years (and longer) while producing energy that whole time?
Many people buy and install solar panels for the cost savings, sure. But many more (like myself) and early adopters do it because it reduces the carbon impact on our environment.
Panel recycling is not a big industry yet, simply because most of the panels are still working fine. It won’t be hard to design a recycling program for their simple construction, once this needs to be addressed/implemented.
In QLD they do actually mention solar panels in a couple of places.
They refer to the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 as mentioned in the article, but specifically mention solar panels a couple of times on the Govt website .
Below is one snapshot taken from the QLD Govt website.
Interference with your use and enjoyment of your land
Your neighbour’s tree may be classed as unreasonably getting in the way of your use and enjoyment of your land if it:
interferes with television or satellite reception
interferes with the proper functioning of solar panelling
shades sunlight from the windows or roof of your property if the tree branches are more than 2.5 metres above the ground
obstructs a view that existed before you took possession of the land if the tree branches are more than 2.5 metres above the ground
creates a substantial and ongoing accumulation of tree litter in your yard
Normal tree litter—leaves, flowers, fruit, seeds or small elements of deadwood—would not be classed as substantial and therefore is not sufficient to get an order for the removal or cutting back of a tree.
Thanks Peter. Yes I came across that government webpage too, but it’s not reflected in the actual wording of the legislation. It’s possible that the intent of the legislation meant solar panels, but I’m not a lawyer. Anyway, here is a link to the text you refer to and maybe it can help someone…
https://www.qld.gov.au/law/housing-and-neighbours/disputes-about-fences-trees-and-buildings/resolving-tree-and-fence-disputes/what-to-do-if-a-neighbours-tree-is-affecting-you
‘QCAT (Queensland Civil and Administrative Tribunal) has used this provision to make orders for the removal of trees that degraded the performance of an existing thermal solar hot water system and which also prevented the possibility of installing solar PV panels.’
Do you by any chance have the citation for this? I can’t find it anywhere!
Thanks.