Background
Buciro Pty Ltd and Sebastian Henry owned neighbouring properties in Rozelle. Two mature lilly pilly trees on Mr Henry’s property stood about 30 centimetres from the boundary. Buciro alleged that the trees had damaged terracotta sewer pipes beneath its driveway and cracked an old brick retaining wall.
Buciro sought removal and poisoning of the trees at Mr Henry’s cost, compensation for plumbing works, and repair or replacement of the brick wall. Its compensation claim included plumbing invoices from 2017 as well as invoices from 2025 and 2026. The Court accepted that Buciro had made a reasonable effort to reach agreement before filing the application.
The Court’s Holding
Acting Commissioner Austin refused the application. The 2017 compensation claims were outside the six-year limitation period applicable to compensation claims under the Trees (Disputes Between Neighbours) Act 2006 (NSW).
The remaining evidence did not establish that the trees had caused, were causing, or were likely in the near future to cause damage to Buciro’s property. Photographs showed roots in pipes, but did not prove that roots caused the pipe damage rather than entering through degraded joints or damage associated with pre-existing water movement, a burst water main, and ground conditions. The sewer lines had also been replaced.
The Court likewise found no evidence linking the trees to the crack in the brick wall, which was 8 to 10 metres from the trees and could have had other causes. As Buciro had not met the statutory threshold for a Part 2 order, the Court had no jurisdiction to make the requested orders.
Key Takeaways
- A claimant must prove a causal connection between the tree and the alleged property damage.
- Roots found in ageing terracotta pipes do not, without more, establish that a tree caused the initial pipe damage.
- Compensation for past tree-related damage is generally subject to a six-year limitation period.
Why It Matters
The decision illustrates the evidentiary burden in NSW neighbour-tree proceedings. Inference from proximity, cracking, or roots in old pipes will not suffice where other plausible causes exist.
Applicants seeking compensation or tree-removal orders should obtain evidence, often including appropriately supported engineering or other expert material, that addresses causation rather than merely recording damage and the presence of nearby trees.