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LPRO 3724 - Neighbour Law
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This is a comprehensive and detailed note on nuisance in Neighbor law for LPRO 3724. Quality stuff!!
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NEIGHBOUR LAW –NUISANCE, FALLING LEAVES, OVERHANGINGBRANCHES, WATER FLOW AND DISPUTE RESOLUTION
This article seeks to summarise the key principles of case law in respect of certain areas of dispute relating to
neighbour law and related nuisance which are commonly encountered. We note that this is a general
summary and overview of the approach taken by our courts, the principles of which would need to be applied
to the facts in each case.
Nuisance - Falling Leaves
In the case of Vogel v Crewe and another [2004] 1 All SA 587 (T) neighbours shared a common boundary and
together had constructed a wall separating the two properties. The applicant had subsequently formed the
opinion that the respondents’ trees and the trees’ root systems were causing damage to the wall, and were
constituting a nuisance in that leaves were falling into the applicant’s swimming pool, blocking the applicant’s
gutters and obstructing sewage systems. The applicant applied for an urgent interdict to have the trees cut down.
The court held that the test for whether a set of circumstances constituted a nuisance such that an interdict
could be granted, was an objective test based on reasonableness. The Court noted that in present times,
awareness of the need to conserve the environment had grown and in light thereof, increased tolerance of
problems caused by the shrinking size of properties and increased proximity of neighbours, was possibly
required.
The Court found that the benefits of conserving the trees (aesthetic pleasure and provision of shade and oxygen)
had to be weighed against the nuisance caused to the applicant. The damage to the wall was, on the evidence,
minor and easily reparable. With regard to the problems caused by overhanging branches, no evidence had been
led that the drastic measure of doing away with the trees was necessary. The evidence had not shown that all the
problems complained of had been caused by the overhanging branches. The application was refused with costs.
Nuisance – Overhanging Branches
The general principle governing overhanging branches, is that the owner is entitled to cut down branches which
are overhanging over his property after having given the owner of the tree (his neighbour) reasonable notice to
attend to the same (although there appears to be some discrepancy in the courts whether such notice is in fact
required). Such owner which cuts down the branches of his neighbour (the owner of the tree) must offer such
branches to his neighbour and if the neighbour refuses to accept them, then the owner may keep the branches
or dispose of them himself. The approach we recommend is that the neighbours provide each other with
sufficient notice before undertaking such cutting of branches, discuss who should attend to the cutting and reach
a compromise as to who will keep/dispose of the branches as well as the costs associated therewith.
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