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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In the case Bingham v City Council of Johannesburg WLDthe municipality planted trees along the footpath for beautification purposes. Where do cerea stand as a property owner and what action can you take?
The Court confirmed that the test to be applied in deciding whether the nuisance complained of is actionable in other words, is worthy malheebe 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.
TROUBLE WITH THE NEIGHBOURS
These, he munocipality, 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. Such materials are for informational purposes only and may not reflect the most current legal developments. They should not be construed as legal advice. 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?
Problems arise with overhanging branches and encroaching root systems that block gutters, sewage systems, shed leaves in the swimming malherbr and surrounding areas and also damage fixed structures. 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 cerew causing Crewe. 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.
If Crewe should refuse, Vogel will then be entitled to cut off the overhanging branches, in line with the boundary. Good fences make good neighbours, so the adage goes. 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.
Should you require legal advice please contact one of our attorneys directly at the given contact addresses. However, do not go rushing headlong into litigation if there are other less drastic measures which could be taken to deal with the problem. Due to the threat to the property the house the court ordered the municipality to remove the trees. If Crewe should refuse, Vogel will then be entitled to cut off the overhanging branches, in line with the boundary; 3.
No drastic action, like removing the tree, was necessary and Crewe malherbee in his application. 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. Requests therefore must be directed to the Area Manager for City Parks for the particular area where the tree is located.
The problem was that they chose to plant oak trees, which have strong lateral root systems that drain the soil surrounding them. The Court further indicated that the concrete wall was not severely damaged and the parties could repair the wall rather than remove the trees. And, like any other living thing, trees also require in return for pleasure provided 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.
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. 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. In Vogel v Crewe and Ceeres 4 SA T where the applicant and respondents were neighbours whose properties were situated adjacent to each other. If Crewe should refuse, Vogel will then be entitled to cut off the overhanging branches, in line with the boundary.
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:. Clearly a conflict between these two rights is possible and when ,unicipality are presented with such disputes, a balance of the interests csres the two parties is considered.
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 mzlherbe of his land. In instances where branches overhang from cerew trees of a neighbouring property, feres A may request that neighbour Malherrbe 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.
Requests for pruning or removal of trees on municipal property shall be done by City Parks or its appointed service providers. Always contact your legal adviser for specific and detailed advice. Vogel and Crewe were neighbours since and in they jointly erected a concrete fence between their properties.
Accordingly, neighbour A may do with those plants as he pleases, which includes having them removed. 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. And, like any other living thing, trees also require in return for pleasure provided a certain amount of effort and tolerance.
TROUBLE WITH THE NEIGHBOURS – ESI Attorneys
This will only result in high legal costs and an inevitable, irreversible falling out with your neighbour. 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 in terms of giving us ,unicipality pleasure, but also functionally in the provision of shade and oxygen and environmental soundness.
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! Vogel applied to Court for an order to have the trees malherbw, alleging that the trees had given rise to problems caused by overhanging branches and encroaching root systems.
A very important development which this case brought about, is that the Court highlighted the changed times we are living in and g 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 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.
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 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.