Background
Rosalind Ashton and the respondents owned neighbouring properties in Shoal Bay, New South Wales. A mature broad-leaved paperbark tree stood principally on the respondents’ land, immediately beside the boundary. Ashton applied under Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (NSW), alleging that the tree’s roots had damaged or blocked her stormwater system, damaged the boundary fence and threatened courtyard paving.
Ashton sought removal of the tree and stump at the respondents’ expense, repair of the fence, $698 reimbursement for plumbing work and recovery of the $299 court filing fee. The respondents opposed those claims, questioned the legality of the cabana and stormwater arrangements on Ashton’s property, and wished to retain the tree. The Court conducted an onsite hearing and inspected the tree, fence and both properties.
The Court’s Holding
Acting Commissioner Austin found insufficient evidence connecting the tree to damage to the stormwater system. The plumbing invoices did not establish the type or source of the roots, reveal the condition of the pipes and dispersion pit, or show cracks or leaks. The cabana’s additional runoff and its position above the dispersion pit, Ashton’s maintenance responsibility, and broader local drainage problems also weighed against the claim. The Court therefore refused tree removal and compensation for the 2026 plumbing invoice. It likewise found no evidence that the paving had been damaged or was likely to be damaged in the near future.
The onsite inspection did establish that expansion of the tree trunk had displaced the boundary fence. The Court ordered the respondents, within 60 days, to engage and pay a suitably experienced contractor to repair or replace the damaged Colorbond-style panels nearest the tree, restoring them to vertical alignment or as close as practical, with a cut-out or boxed section around the stem. The respondents were required to give at least seven days’ notice, and Ashton was required to permit necessary access during reasonable daytime hours.
The Acting Commissioner did not determine Ashton’s request to recover the filing fee. Commissioners lack power to order payment of court application fees and other proceeding costs; any party seeking such costs had to file a notice of motion within 28 days of the final orders for determination by a Judge or the Registrar.
Key Takeaways
- Proximity between a tree and alleged root damage is not enough: an applicant must provide evidence establishing causation, commonly including excavation, images or other direct evidence.
- The proven displacement of the boundary fence justified targeted repair orders, but not removal of a mature tree that provided shade, amenity, biodiversity, scenic and stormwater-management benefits.
- A filing-fee claim was procedurally distinct from the substantive tree-damage claims and required a separate costs motion before a Judge or the Registrar.
Why It Matters
The decision illustrates the evidentiary threshold for relief under Part 2 of the Trees Act. Plumbing invoices and repeated blockages did not establish that this particular tree caused the alleged drainage damage, especially where the drainage infrastructure, later cabana construction and neighbourhood flooding offered other explanations.
It also shows the Court tailoring relief to the damage actually proved. Rather than authorizing removal of an environmentally and aesthetically valuable tree, the Court required a limited fence repair designed around the trunk while leaving any claim for the filing fee to the separate statutory costs process.