Background
Thomas and Carolyn Cox applied under Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (NSW), alleging that a Norfolk Island pine formerly growing on Paul and Elizabeth Halasz’s adjoining property had damaged a retaining wall on the Coxes’ land. The wall supported higher land behind it, was severely cracked and rotating toward the Coxes’ studio, and had been temporarily braced. Although the Halaszes removed the tree in May 2025, the Act treated it as remaining on their land for purposes of the proceeding.
The Halaszes disputed causation, contending that the wall was inadequately constructed, had deteriorated through water flow and lacked proper foundations and drainage. They also suggested that roots from a Chinese hackberry on another property contributed to the damage. The Coxes sought access and reimbursement for demolition, reconstruction, professional services and related work.
The Court’s Holding
The Court found that the Norfolk Island pine’s roots were the principal cause of the wall’s significant damage. Roots identifiable as Norfolk Island pine roots had grown against, through and beneath the wall, lifting it from the sandstone base and contributing to cracking and rotation. Any contribution from the hackberry was minor at most. The wall’s age, construction below current standards and other site conditions likely contributed to some deterioration, but would probably not, without the tree roots, have left it at risk of collapse and requiring urgent replacement.
The Court apportioned 80% of the allowable costs to the Halaszes and 20% to the Coxes, reducing the survey allowance and excluding the Coxes’ claimed charge for their own architectural and project-management time. It ordered the Coxes to arrange the works and provide a project plan, required the Halaszes to permit reasonable access, and directed the Halaszes to reimburse $11,684—or proportionally less if the works cost less than the quoted amount—within 30 days after receiving the paid invoice. That payment obligation lapses if the Coxes do not provide the receipted invoice within 12 months of the orders.
Key Takeaways
- A removed tree may still be treated as situated on the respondent’s land for an application under the Trees Act.
- Where tree roots are the principal cause of damage but an aging structure and other conditions also contributed, the Court may apportion replacement costs rather than award full reimbursement.
- The $11,684 reimbursement is conditional: the Coxes must complete the works and provide the receipted invoice, and the payment order lapses if they do not supply that invoice within 12 months of the orders.
Why It Matters
The decision illustrates the Court’s fact-specific approach to causation and compensation in neighbouring-tree disputes. Establishing that a tree principally caused the need for replacement did not entitle the affected owners to recover every claimed expense, particularly where the replacement would improve an older wall and benefit both properties.
It also underscores the practical importance of responding promptly to documented damage, inspecting the affected property and accurately addressing council-consent requirements. The Court considered the parties’ conduct over time when allocating costs and deciding who should manage the remedial work.