Background
Neighbouring homeowners in Holsworthy disputed a large spotted gum growing principally on the respondents’ land, close to the applicants’ driveway and front fence. The applicants sought removal of the tree under Pt 2 of the Trees (Disputes Between Neighbours) Act 2006 (NSW), alleging that its roots had displaced driveway slabs and the front fence, and that a hanging dead branch created a risk.
The evidence showed minor driveway cracking and lifting, slight fence displacement, and an inoperable gate latch. Root investigations identified five roots beneath or near the driveway, but only one was shown to be in direct contact with the concrete. The tree was otherwise healthy, had high retention value, and contributed amenity and habitat benefits.
The Court’s Holding
Acting Commissioner Austin upheld the Pt 2 application only to the limited extent of ordering removal of the hanging dead branch and pruning of three smaller roots. The Court refused tree removal, finding it disproportionate to the minor observed damage and the tree’s environmental and amenity value.
The applicants had not provided sufficient expert evidence to establish that the tree caused all alleged damage, including the garage cracking and fence movement. Nevertheless, because of the tree’s proximity to the driveway, the Court found that root growth was likely to cause minor driveway damage in the near future, satisfying the statutory threshold. It ordered pruning of Roots 1, 2 and 4, but prohibited cutting Roots 3 and 5 because severing the large 225 mm Root 3 could compromise tree stability and interact adversely with existing decay concerns.
Key Takeaways
- Minor present or likely near-future damage can engage Pt 2 jurisdiction, but does not automatically justify removal of a tree.
- Applicants alleging structural root damage must prove causation with adequate investigation; proximity of roots alone is insufficient.
- Targeted pruning may be ordered where it reduces risk without creating unacceptable risks to tree health or stability.
Why It Matters
The decision illustrates the Court’s careful balancing under the Trees Act: a tree’s public, environmental and amenity benefits may outweigh the case for removal where the damage is minor and foreseeable from construction close to an established tree.
It also reinforces that parties need technically grounded evidence addressing alternative causes, construction details, root identification and site conditions before seeking substantial remedies for alleged tree-root damage.