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  .
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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. Should you require legal advice please contact one of our attorneys directly at the given contact addresses. No case had been made out why the removal of the trees was necessary. 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 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. 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.
Trees with lateral root systems are often a culprit in neighbourly disputes. 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. Where do you stand as a property owner and what action can you take? 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.
In terms of our private nuisance law, every property owner has a right to unimpeded enjoyment of his land. Requests for pruning or removal of trees on municipal property shall be done by City Parks or its appointed service providers.
Vogel and Crewe were neighbours and Crewe was of the opinion that malherbbe tree planted about two metres from the wall, separating the two properties, was the cause of all the problems on his property.
ENCROACHING TREES, BRANCHES, LEAVES AND ROOTS
They will not order the removal of overhanging branches for the muincipality of leaves. 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.
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. No case had been made out why the removal of the trees was necessary. And, like any other living thing, trees also require in return for pleasure provided a certain amount of effort and tolerance.
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. Good fences make good neighbours, so the adage goes. Munnicipality you malheebe be able to resolve tree-related issues with your neighbour in a courteous way, and remember, municipaliry also have the right to enjoy your property.
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. But municipallty more than a fence is needed to maintain good neighbourly relations! 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.
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. If Crewe should refuse, Vogel will then be entitled to cut off the overhanging branches, in line with the boundary. This will only result in high legal costs and an inevitable, irreversible falling out with your neighbour.
The matter of Vogel v Crewe is also significant in this regard as environmental concerns were included in the assessment of what was objectively speaking, reasonable. 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!
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. 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 giving us aesthetic pleasure, but also functionally in the provision of shade and oxygen and environmental soundness.
TROUBLE WITH THE NEIGHBOURS – ESI Attorneys
They should not be construed as legal advice. No case had been made out why the removal of the trees was necessary; 2. If Crewe should refuse, Vogel will then be entitled to cut off the overhanging branches, in line with the boundary. Such materials are for informational purposes only and may not reflect the most current legal developments.
Vogel and Crewe were neighbours since and in they jointly erected a concrete fence between their properties. Regarding the overhanging branches, the Court found that the problem could be resolved by way of Vogel requesting Crewe to prune his trees. The problem was that they chose to plant oak trees, which have strong lateral root systems that drain the soil surrounding them.
Surely his enjoyment cannot be at the cost of someone else? 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. The branches can only be cut in line with the boundary.
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. Always contact your legal adviser for specific and detailed advice. Based on the evidence before it, the Court dismissed the application as: In terms of our private nuisance law, every property owner has a right to unimpeded enjoyment of his land.
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