The Law Handbook 2024

580 Section 6: Houses, communities and the road roots from a tree that protrude onto your land up to the fence line. You do not have to give any warning that you are going to do this, although it is recommended that you discuss it with your neighbour first. The law calls this do-it-yourself action ‘abatement’. You are not allowed to enter your neighbour’s land in order to carry out the work unless you have their permission. Anything you cut off your neighbour’s tree belongs to your neighbour and should be returned, preferably in a neat and tidy manner. Self-help is not always a practical option and the services of a tree lopper or other professional may be required in dealing with a nuisance tree. It is important to be aware that unless your neighbour agrees to contribute to the cost beforehand, you may be unable to recover the costs of having this work done. Getting a quote for repair and discussing the matter with your neighbour beforehand is preferable. Dangerous things on land If a person in control of land brings onto the land and keeps anything there likely to cause damage if it escapes, that person could be liable for the reasonably foresee­ able consequences of any escape. The escape may involve seepage, leakage or the collapse of an object. Water, electricity, gas, oil or fire might be involved. Some element of ‘fault’ will be necessary before any liability in negligence (and, in some instances, nuisance) can arise. However, fault will not be necessary if the principles of trespass (and, in some instances, the principles of nuisance) are satisfied. Nuisances dangerous to health Legislation The principal legislation concerned with nuisances dangerous to health is the Public Health and Wellbeing Act 2008 (Vic) (‘ PHW Act ’). Under the PHW Act no one is allowed to cause nuisance or allow a nuisance to exist on, or emanate from, any premises owned or occupied by that person (s 61). Local councils have the delegated power to make sure that this law is observed (s 60 PHWAct), and the power to regulate instances they consider constitute a nuisance. Examples of what are considered to be nuisances under the PHW Act include: • houses in such poor repair that they are about to fall down; • premises used for keeping animals or birds; • too much rubbish accumulating; and • over-crowded houses and places infested with vermin. What a council can do about nuisances dangerous to health If the local council thinks a nuisance to health exists, it serves a notice on the person responsible for the nuisance (or the owner or occupier of the premises if that person cannot be found). The notice sets out what the council wants done about the nuisance, and when the work must be done by. If the required work is not done in time, the council can require the person responsible to go to a Magistrates’ Court. What a court can do about nuisances dangerous to health A court can order the person to do what the notice requested in order to deal with the nuisance and stop it from happening again. The court can also impose a fine of up to 120 penalty units ( pu ) and order a person to pay the costs of the council in bringing the court action. If a house is not fit to live in, the court can order that the house be closed until it is fit to live in. After the court makes an order, the council can go onto the land where the nuisance is. It can do whatever it has to do to fix the problem, and it can get back the cost of doing this from the person named in the court order (s 197 PHW Act). NOTE: PENALTY UNITS For the period 1 July 2023 to 30 June 2024, one pu equals $192.31 under Victorian state law. See ‘A note about penalty units’ at the start of this book. What you can do about nuisances dangerous to health If the council does not take action within a reas- onable time of you having notified it of the nuisance, you can take action under the PHW Act against the person responsible for the nuisance. You have to do this at your own cost at first. If the court agrees with you, you will probably get most of your money back, but if the court doesn’t agree with you, you may have to pay the other person’s costs (s 63 PHW Act).