Background
Leonard Brown owned an industrial property at 10 Hannabus Place, Mulgrave, next to Frank Ferrara’s property at No 9. Eighteen fig trees planted along the common boundary had branches and roots extending onto No 10. Brown sought relief under Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (NSW), alleging damage to sewer and stormwater infrastructure, the boundary fence, and his building’s cladding and gutters. He requested compensation for past expenses and proposed repairs, as well as removal of the trees or installation of a root barrier.
Ferrara disputed that the trees caused the initial damage. He argued that heavy trucks and machinery operating on unsealed areas at No 10 most likely cracked the underground pipes, after which roots entered them and caused blockages. Brown did not press his separate Part 2A claim alleging obstruction of sunlight.
The Court’s Holding
The Court found that roots from the fig trees had entered and blocked sewer and stormwater pipes, constituting damage for the jurisdictional threshold under section 10(2)(a). It nevertheless declined to award compensation or order payment for pipe replacement because the evidence did not establish that the roots caused the pipes’ initial cracking. The Court considered heavy trucks and machinery on the unsealed ground the most likely primary cause. It also refused relief concerning the fence, cladding, and gutters because the trees had not materially caused their condition or the need for replacement.
The Court was satisfied that the roots were likely to cause further property damage in the near future if defects remained in the pipes. It found tree removal unnecessary if a root barrier was installed and maintained on No 10. Ferrara was ordered to pay for a barrier at least 800 millimetres deep along the property’s length and, each November while the trees remain, to have a qualified and insured arborist prune overhanging branches so that they extend no more than 500 millimetres beyond the boundary. Brown was required to provide a services plan and permit reasonable access. The unpressed Part 2A application was refused.
Key Takeaways
- Roots entering and blocking already-damaged pipes can satisfy the statutory damage threshold without making the tree owner liable for all repair costs.
- When other likely causes contributed to property damage, the Court may refuse compensation while still ordering preventive measures against future root intrusion.
- A root barrier and recurring pruning may address foreseeable encroachment while preserving trees that provide shade, amenity, habitat, and protection from wind and dust.
Why It Matters
The decision distinguishes between proof that a neighbouring tree has caused some damage and proof that it caused the underlying defect for which compensation is sought. Applicants need evidence connecting roots to the initial physical failure, particularly where site use or inadequate maintenance offers another likely explanation.
It also illustrates the Court’s ability under the Trees Act to tailor prospective relief: although retrospective monetary claims failed, the Court required the tree owner to fund practical measures intended to prevent further damage.