Background
Catherine Armstrong owned a heritage-listed, partly extended house at 24 Gerard Street, Cremorne. The owners corporation for the neighbouring unit block owned land at 26–32 Gerard Street, where six trees stood in a mounded garden bed beside the boundary. Armstrong alleged that the trees had damaged her house, front veranda, boundary fence and retaining wall.
She sought orders under Pt 2 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) to remove the trees, recover $23,650.86 for repairs, and require further remedial works. The parties had unsuccessfully attempted to resolve the dispute, and the Court accepted that Armstrong had made reasonable efforts to reach agreement.
The Court’s Holding
Acting Commissioner Austin refused the application. The Court was not satisfied that the six trees had caused, were causing, or were likely in the near future to cause damage to Armstrong’s property, as required by s 10(2) of the Act.
The applicant’s evidence did not establish the required causal link between particular trees and particular damage. Excavation found no roots near the front-veranda damage, while roots found in a rear trench were not near the wall cracking. General guidance in AS 2870 about trees and reactive soils could not substitute for site-specific investigation. The evidence also identified other possible causes, including a raised garden bed, watering system, leaking gutter, drainage and moisture conditions, clay soil, and structural effects associated with the later second-storey addition.
The Court found the mounded garden bed and abnormal moisture conditions were affecting the fence and sandstone wall, and agreed that maintenance and repair were needed to preserve the heritage building. But those matters did not give the Court a basis under the Trees Act to order tree removal. It therefore did not need to consider the discretionary factors in s 12.
Key Takeaways
- A tree-dispute applicant must prove a specific causal nexus between the tree and alleged property damage.
- Tree proximity and general standards on tree setbacks or reactive soils do not, without more, establish causation.
- Evidence should investigate and exclude other plausible causes, including drainage, irrigation, leaks, soil conditions, building history and footing movement.
Why It Matters
The decision reinforces the evidentiary threshold for structural-damage claims under Pt 2 of the Trees Act. Expert reports must do more than identify cracking, nearby trees and possible mechanisms of damage; they must provide a sound, site-specific basis for attributing the damage to the trees.
It also illustrates the limits of the statutory remedy. Even where tree removal may facilitate necessary remedial work, the Court cannot make an order unless the statutory tree-damage test is met.