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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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. They should not be construed as legal advice. 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.

ENCROACHING TREES, BRANCHES, LEAVES AND ROOTS

Accordingly, neighbour A may do with those plants as he pleases, which includes having them removed. If Crewe should refuse, Vogel will then be entitled to cut off the overhanging branches, in line with the boundary. Requests for pruning or removal of trees on municipal property shall be done by City Parks or its appointed service providers.

Surely his enjoyment cannot munixipality at the cost of someone else? Requests therefore must be directed to the Area Manager for City Parks for the particular area where the tree is located.

Based on the evidence before it, the Court dismissed the application as: Always contact your legal adviser for specific and detailed advice.

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:. If Crewe should refuse, Vogel will then be entitled to cut off the overhanging branches, in line with the boundary. 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.

The branches can only be cut in line with the boundary. No case had been made out why the removal of the trees was necessary. Applying these principles, the Court indicated that it is also important to bear in mind that trees municipaluty 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.

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Problems arise with overhanging branches and encroaching root systems that block gutters, sewage systems, shed leaves csres the swimming pools and surrounding areas municioality also damage fixed structures. 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. If Crewe should refuse, Vogel will then be entitled to cut municiplaity the overhanging branches, in line with the boundary; 3.

Your neighbour will be liable for the costs incurred. 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.

And, like any other living thing, trees also require in return for pleasure provided a certain amount of effort and tolerance.

Due to the threat to the property the house the court ordered the municipality to remove the trees. 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. No drastic action, like removing the tree, was necessary and Crewe failed in his application. 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.

ENCROACHING TREES, BRANCHES, LEAVES AND ROOTS – TMJ Attorneys

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. 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 problem was that they chose to plant oak trees, which have strong lateral root systems that drain the soil surrounding them. Such materials are for informational purposes only and may not reflect the most current legal developments. 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.

Good fences make good neighbours, so the adage goes. However, do not go rushing headlong into litigation if there are other less drastic measures which could be taken to deal with the problem. Neither your receipt of information from this website, nor your use of this website to contact Tomlinson Municipwlity James or one of its attorneys creates an attorney-client amlherbe between you and the firm.

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Vogel applied to Court for an feres to have the trees removed, alleging that the trees had given rise to problems caused by overhanging branches and encroaching root systems. In the case Bingham v City Council of Johannesburg WLDthe municipality planted trees along the footpath for beautification purposes.

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 other less drastic measures which could be taken to deal with the problem rather than removing 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 municipalihy that trees be removed if municipailty are other less drastic measures which could be taken to deal with the problem rather than removing the trees.

Some particular instances are described hereafter.

But often more than a fence is needed to maintain good neighbourly relations! No case had been made out why the removal of the trees was necessary.

TROUBLE WITH THE NEIGHBOURS

This website contains general information about legal issues and developments in law. 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.

In terms of our private nuisance law, every property owner has a right to unimpeded enjoyment of his land. The Court further indicated that the concrete wall was not severely damaged and the parties could repair the wall rather than remove the trees. Vogel municopality 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.