Background
The applicants owned an attached townhouse at 154 Driftway Drive, Pemulwuy. They applied under the Trees (Disputes Between Neighbours) Act 2006 (NSW) concerning two water gums in the respondents’ raised front garden at the adjoining property, 156 Driftway Drive. They sought tree removal or pruning and repairs for damage to a common boundary wall and terracotta tiles on their path.
The walls were cracked and displaced, particularly where the common boundary wall met the respondents’ front boundary wall, and tiles beside the wall were cracked. The applicants had not obtained investigations demonstrating causation. The respondents disputed that the trees caused the damage, accepted that the common wall was jointly owned, and had already pruned the trees.
The Court’s Holding
Acting Commissioner Galwey found that the walls had principally failed because their design and construction were inadequate for the known site conditions. Nevertheless, the trees’ presence in the small raised garden contributed to pressure on the walls. The Court was therefore satisfied that the trees had caused damage to the applicants’ property for the purposes of s 10(2)(a), including the jointly owned common boundary wall. The Court also found that roots from the nearer tree contributed to the cracked path tiles.
The Court granted relief limited to repair arrangements. It ordered the respondents to obtain three itemised quotes, select and pay a contractor to demolish and rebuild the damaged sections of both walls, and bear all design, approval and certification costs. The applicants must reimburse 50% of the lowest quoted itemised cost for the common boundary wall after receiving a paid invoice. The respondents bear the cost of their own front boundary wall; the applicants bear the cost of repairing their path. No pruning or removal order was made because properly repaired walls and path were unlikely to suffer further damage and the respondents intended to maintain the trees.
Key Takeaways
- A tree may satisfy the statutory damage threshold even where defective design or construction is the principal cause of the damage.
- Repair costs were apportioned according to ownership: the common wall equally, each party’s separate property at that party’s cost.
- The Court can make tailored remedial orders without ordering tree removal or further pruning.
Why It Matters
The decision illustrates the Court’s flexible remedial jurisdiction in neighbour-tree disputes. A contributing role by trees can support orders, but it does not require the Court to treat the tree owner as solely responsible where structural inadequacy is the dominant cause.
It also provides a practical model for shared-boundary repairs: one owner may arrange the works, while reimbursement is confined to a defined share of an independently quoted component of the work.