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Tree roots grow unseen below the ground. But the damage they do is visible. They lift paving and concrete driveways. They crack retaining walls, house walls and garages. They block sewer pipes.

This article examines who is responsible for the damage caused by tree roots, removal of the tree roots or trees, and compensation for damage caused.

The common law rights of a next-door neighbour owner to ‘sever roots which have spread from a neighbour’s trees onto his own land’ are the same as the right to prune overhanging branches and are subject to the same rules – see Tree Disputes #1 The right to remove overhanging branches.

The next-door neighbour has the right to sever roots to the boundary and install a root barrier or build a wall along the boundary to prevent root entry, at their own cost, so long as the tree is not compromised. This is known as ‘the abatement of a nuisance’. The entry of the tree roots into the land is the ‘nuisance’, the severing, the ‘abatement’.

But if the next-door neighbour desires to force their tree owner neighbour to remedy, restrain or prevent damage caused by tree roots or wants compensation for damage caused, they need a court order under the Trees (Disputes Between Neighbours) Act 2006 (NSW) (the Trees Act).

Part 2 of the Trees Act deals with trees that cause or are likely to cause damage or injury:

s 7     An owner of land [the applicant] may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to another person, as a consequence of a tree to which this Act applies that is situated on adjoining land.

s 10(2)    The Court must … [be] satisfied that the tree concerned:

(a) has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or

(b) is likely to cause injury to any person.

Notes:     ‘tree’ is defined as ‘any woody perennial plant’ and includes bamboo, tiger grass/giant clumping grass and vines

‘near future’ is interpreted to mean ‘within the next 12 months or so’

A Council permit is not required if a Court orders the pruning or removal of tree roots

The Application is made to the Land and Environment Court of NSW

This is a selection of recent decisions in the Land and Environment Court of NSW:

BODY V BRACKS; SMITH V BRACKS [2021] NSWLEC 1614 (damage to a garage) Tree roots of a Mountain Grey Gum (Eucalyptus cypellocarpa) growing on Bracks’ land in Balmain in inner-city Sydney had uplifted the brick wall of Body’s garage causing a large crack and tilting, and had possibly damaged the concrete garage floor. It was a large tree, approximately 15 metres tall. The trunk was 1 metre away from the garage wall “and the collar was most likely growing against the wall’s footing below ground”.

The Court ordered the removal of the tree, despite its contribution to the landscape and public amenity, because it was “likely to cause further damage in the near future” and there was “no reasonably practical solution (such as pruning) to prevent the tree causing further damage other than removing it”.

The tree was to be removed to stump level (500 mm) by Bracks at her cost. Bracks was not required to remove the stump or remove roots from Body’s land. The Commissioner ordered that a replacement tree be planted in the yard - a native tree that will reach at least 6 metres in height at maturity.

The Commissioner refused compensation for the damage to the garage wall, because its condition had changed little since 2013, and so it was beyond the six-year limitation period for bringing a claim under the Limitation Act 1969 (NSW). As to the garage floor, there was no compensation because there was insufficient evidence to demonstrate that the concrete floor had not been damaged by other factors.

Clarke v Goff [2021] NSWLEC 1672 (tree root-bound) A Jacaranda tree (Jacaranda mimosifolia) grew in the small front courtyard of an Erskineville property, in inner-city Sydney. The tree roots were causing damage - the boundary garden wall had moved and pavers uplifted. Both neighbours wanted the tree to be removed, but the Council refused the application for tree removal.

Acting Commissioner Galwey weighed up Council’s refusal based on the tree’s benefits and the likely damage the tree would cause if it remained:

“The tree contributes to the overall canopy cover of the City of Sydney’s urban forest. It contributes ecosystem services including cooling, reducing water run-off, removing air pollutants, carbon sequestration and more. It has intrinsic value to public amenity, standing at the very front of the respondents’ property. These values are recognised in the City of Sydney Urban Forest Strategy (2013) and other policy documents, and were rightly considered by Council when determining the application for tree removal.”

But the finding that the tree roots were going to continue to cause damage because it was root-bound was decisive: “this tree has outgrown the limited space in which it was planted. It has reached a size that requires a large root system, in turn requiring significant soil volume that is not available”.

The Commissioner ordered that the tree be removed and be replaced by a tree of a species that will reach a height of at least 6 metres and a crown spread of at least 4 metres at maturity, at the tree owner’s cost.

Liu v Jiang [2021] NSWLEC 1571 (retaining wall damaged) A Golden Monterey Cypress (Cupressus macrocarpa Aurea’) was growing in a retaining wall in the common boundary at the rear of properties in Castle Cove.

Acting Commissioner Galwey found that while the retaining wall was in poor condition because it was structurally inadequate for its purpose, the size and location of the large crack near the tree were ‘a result of some force from tree root growth beneath the wall’. See photos

As the tree roots were likely to cause further damage in the future, and as the wall provides support for the Applicant’s land and swimming pool, as pruning would not be appropriate and as the tree provides limited amenity, the Commissioner ordered the removal of the tree.

The Commissioner, exercising jurisdiction under the Dividing Fences Act 1991 (NSW) (because a tree caused damage), found that the retaining wall’s design and construction were not adequate for purpose: the tree had “made a minor contribution to the wall’s condition, but its principal causes include loads placed on the wall by the Applicant’s raised land, and a lack of drainage on the Applicant’s land behind the wall”.

The Court ordered the retaining wall to be rebuilt and apportioned the cost as to 90% to the Applicant (Liu) because they benefitted from the retaining wall and 10% to the Respondent (Jiang) because they had left the tree to continue to grow for some time. The cost was estimated at $150,000.

Braun v Basser [2021] NSWLEC 1510 (tree roots cut) A tall slender form of a Cook Pine (Araucaria columnaris) stood deep in the back garden of a long narrow property belonging to Basser at Vaucluse. It could be seen from the surrounding landscape and contributed to the local landscape character, to public amenity, and to the landscape value of Basser’s property. It was a healthy tree 20–25 metres tall with a stem diameter of 700 mm.

Braun engaged a plumber to clear his sewer pipe near the boundary trap. It was an original earthenware pipe. The plumber reported that the sewer pipe was damaged by tree roots. Braun authorised its replacement with a new PVC boundary trap shaft. The plumber severed three structural roots (one 120mm, one 150mm and one 180mm) and cut 90% of the main tension root of the tree (200 mm) while installing the shaft. All of the root severance took place within 500mm of the tree, well within the SRZ [Structural Root Zone].

Braun engaged an arborist who recommended removal of the tree. Basser applied to the Council for removal, but the Council refused consent. Braun applied to the Court for orders for removal and compensation of $5,000 for damage to the sewer pipe.

Acting Commissioner Galwey said: “Considering these factors – the tree’s exposure to winds, its age, the recent loss of structural roots – I find it is likely that the tree might fail in the near future” and , “the tree must be removed because the likelihood of tree failure has increased following the is now likely to cause damage to Braun’s property or is likely to cause injury”.

The Court ordered Braun pay 75% of the cost of removal and Basser pay 25%, instead of the usual order that the tree owner (in this case Basser) pay 100% of the cost because Braun’s plumber’s actions in cutting the roots instead of installing a new section of pipe diverted around the roots, had resulted in the removal. He rejected the claim for compensation because there was no proof that the tree roots from the tree had damaged the sewer pipe.

This article is the third in a series of five. The other articles are:

Tree Disputes #1 The right to remove overhanging branches

Tree Disputes #2 Tree branches and trunks causing damage

Tree Disputes #4 Trees causing injury

Tree Disputes #5 High hedges blocking sunlight or a view

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