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  in the case book). ▫ Gien v Gien 2 SA T.(Case number  .
|Published (Last):||27 August 2011|
|PDF File Size:||7.13 Mb|
|ePub File Size:||7.48 Mb|
|Price:||Free* [*Free Regsitration Required]|
TROUBLE WITH THE NEIGHBOURS
In instances where branches overhang from the trees of a neighbouring property, neighbour A may request that neighbour B remove those branches and if neighbour B refuses, then neighbour A may have the branches removed and claim the cost of removal from neighbour A. The good neighbourly relations which existed between the two parties were gradually being marred by these trees as Vogel was of the opinion that the trees were causing a nuisance to him.
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.
From the above it is clear that the court will only order the removal of a tree should the roots pose a real and immediate threat of damaging the property. No drastic action, like removing the tree, was necessary and Crewe failed in his application.
ENCROACHING TREES, BRANCHES, LEAVES AND ROOTS
The Court further indicated that the concrete wall was not severely damaged and the parties could repair the wall rather than remove the trees. 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.
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. In the case Bingham v City Council of Johannesburg WLDthe municipality planted trees along the footpath for beautification purposes.
Trees with lateral root systems are often a culprit in neighbourly disputes. Trees on city-owned land that has been leased out, is the responsibility of the lessee, but approval for any work must be obtained from City Parks in writing.
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. In terms of our private nuisance law, every property owner has a right to unimpeded enjoyment of his land.
This should not be seen as an encouragement to neighbours to take the law into their own hands as our law does make provision that the owner of an adjacent property may cut overhanging branches himself only after he has requested his neighbour to do so and he has refused. Vogel and Crewe were neighbours since and in they jointly erected a concrete fence between their properties.
TROUBLE WITH THE NEIGHBOURS – ESI Attorneys
The branches can only be cut in line with the boundary. And, like any other living thing, trees also require in return for pleasure malberbe a certain amount of effort and tolerance.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. 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.
Problems arise with overhanging branches and encroaching root systems that block gutters, sewage systems, shed leaves in the swimming pools and surrounding areas and also damage fixed structures. They will not order the removal of overhanging branches for the shedding of leaves. Surely his enjoyment cannot be at the cost of someone else? 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.
The matter of Vogel v Crewe is also significant in this regard as environmental concerns were included in municiaplity assessment of what was objectively speaking, reasonable. And, like munciipality other living thing, trees also require in return for pleasure provided a certain amount of effort and tolerance. Such materials are for informational purposes only and may not reflect the most current legal developments. They malherbd 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.
If Crewe should refuse, Vogel will then be entitled to cut off the overhanging branches, in line with the boundary; 3. Should you require legal advice please contact one of our attorneys directly at the given contact addresses. 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 mzlherbe terms of giving us aesthetic pleasure, but also functionally in the provision of shade and oxygen and environmental soundness.
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. Good fences make good neighbours, so the adage goes.
Always contact your legal adviser for specific and detailed advice. 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 cefes 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 problem was that they chose to plant oak trees, which have strong lateral root systems that drain the soil surrounding them. As there are more and more of us, property owners need to be increasingly tolerant of the inevitable problems caused by the shrinking size of properties and the greater proximity of neighbours and their trees.
However, do not go rushing headlong into litigation if there are other less drastic measures which could be taken to deal with the problem. Your neighbour will be liable for the costs incurred. 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 occurrences of trees within the City.
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. 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. If branches encroach on the land of a neighbour and cause a nuisance the neighbour may request the owner ecres remove the branches and if the owner fails to remove them within a reasonable time after demand the neighbour may:.
Malnerbe website contains general information about legal issues and developments in law. No case had been made out why the removal of the trees was necessary.
Tree Nuisance – STBB
He most certainly has the right to cers on his property as he pleases, but what about my right to use and enjoy my property? 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.
But often more municupality a fence is needed to maintain good neighbourly relations!