Background
Col Lampard and Kerren Miles owned a home adjoining Angie Marie Miller’s property at Gol Gol, New South Wales. They applied under Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (NSW), alleging that Lilly Pilly trees on Miller’s land had caused cracking in their house and root intrusion into drainage and plumbing.
The applicants sought removal and stump treatment, plus $10,483.60 for a structural-engineering report and plastering and painting repairs. Before the on-site hearing, Miller had removed 13 of the Lilly Pilly trees to ground level. The Act nevertheless permitted the application to proceed because the trees were removed after the alleged damage giving rise to it.
The Court’s Holding
Acting Commissioner Austin refused the application. The Court was not satisfied, as required by s 10(2)(a) of the Act, that the Lilly Pilly trees had caused, were causing, or were likely in the near future to cause damage to the applicants’ property.
The engineering report described cracking, soil conditions, nearby trees and general guidance in AS 2870-2011, but did not establish a causal nexus between these particular trees and the damage. It did not adequately investigate other potential causes, including cracking away from the trees and site conditions. The plumbing evidence showed roots in pipes but did not identify their source or show that the Lilly Pilly roots caused the pipe damage; Yucca vegetation near the pipework was another possible source. With the trees already felled and stump treatment planned, there was also no evidence of likely near-future damage.
Key Takeaways
- Proximity of trees to a building, without site-specific evidence of causation, does not satisfy the statutory test.
- General standards and engineering guidance cannot replace investigations linking identified roots to identified damage.
- Roots found in drainage pipes do not alone prove that a particular tree caused the pipe damage or blockage.
Why It Matters
The decision reinforces the evidentiary burden on applicants in New South Wales tree-dispute proceedings. Claims for compensation or remedial orders require proof on the balance of probabilities that the tree in question caused, is causing, or is likely soon to cause the relevant damage.
For structural-damage claims, useful evidence may include root identification, investigation of footings and soil moisture, building-movement data, and examination of alternative causes. Once the jurisdictional test fails, the Court cannot proceed to consider discretionary orders or compensation.