Background
Maralyn Priest owned residential property at 5 Mission Street, Katoomba, while Ronaz Azazil purchased the adjoining property at 7 Mission Street in March 2025. Four eucalyptus trees on Azazil’s property (T1–T4) had branches and roots overhanging and extending beneath Priest’s dwelling, shed, and service wires. Priest sought court orders to compel Azazil to remove or prune these trees to prevent further damage, and separately sought compensation from George Winston, the former owner of No. 7, for damage that had already occurred during his ownership.
The parties provided conflicting arboricultural evidence. Jacki Brown, consulting arboricultural expert, assessed the trees as posing high risk of branch failure and damage to Priest’s property. Mike Daws, another consulting arborist, concluded the risk was “tolerable” or “broadly acceptable” under quantified tree risk assessment methodology. The court conducted an on-site inspection and observed a substantial tree root approximately 100mm in diameter growing from the common boundary beneath Priest’s dwelling, aligned with visible structural cracking.
The Court’s Holding
Justice Galwey held that the Trees (Disputes Between Neighbours) Act 2006 applied to the C4 Environmental Living zone in which the properties were situated, finding it had the substantial character of a residential zone within the Act’s meaning. Priest had satisfied the statutory requirement to make reasonable efforts to reach agreement, as Azazil’s position—denying sole responsibility for the trees—showed no realistic path to consensus.
For each tree, the court applied the statutory test: whether the tree “is likely in the near future to cause damage to the applicant’s property.” For T1, the court found three over-extended branches directly above Priest’s dwelling posed high risk of branch failure, and observed evidence of T1’s root physically causing damage to the dwelling’s brick wall and concrete slab foundation. For T2, dead branches above Priest’s shed were likely to fall and cause damage despite their small diameter relative to the shed’s value. For T3 and T4, dead and over-extended branches hung above service wires, creating likelihood of damage to electrical infrastructure. The court rejected the defence reliance on statistical risk assessment methods, finding they underestimated practical likelihood of branch failure in the “near future” and did not account for observable over-extended and dead branches.
T5 (a row of conifers) was excluded from orders as it posed no likely damage to Priest’s property, though the court noted declining condition. Regarding compensation for past damage during Winston’s ownership, the court refused that application without detailed published reasoning on this portion of the judgment.
Key Takeaways
- A current tree owner (Azazil) bears responsibility for preventing future tree damage to neighbors, regardless of when the tree problem originated or who owns the offending tree at the time of legal proceedings.
- Expert risk assessment methodologies are useful but do not control the legal inquiry; courts independently assess whether damage is “likely in the near future” based on observable tree condition, branch location, and practical risk.
- Root damage to building foundations, when physically observed and causally linked to the tree, qualifies as damage “likely to be caused” under the Act and can trigger removal orders.
- Branches need not have recently failed to warrant preventive orders; imminent failure based on tree decline, deadwood presence, and positioning over occupied structures suffices.
- Tree owners must pay for court-ordered preventive works unless the applicant has contributed to the risk through their own acts or omissions.
Why It Matters
This decision clarifies how NSW courts assess neighbor tree disputes under the 2006 Act. It establishes that liability for tree damage runs with current ownership: new owners inherit both the trees and the responsibility to prevent them from harming neighbors. The judgment rejects narrow quantified risk methodologies that assign vanishingly small statistical probabilities to branch failure, instead applying practical judgment to observable tree conditions and branch positioning. This approach favors neighbors seeking preventive relief over owners arguing theoretical low probability. Courts will order removal—not merely pruning—when trees are in evident decline and pruning offers only temporary relief.
The decision also reinforces that statutory mediation requirements (reasonable effort to reach agreement) are not exhaustive; neighbors need not negotiate toward consensus they reasonably view as inadequate. For tree owners, the ruling confirms that acquiring a property means assuming liability for its trees’ foreseeable risks, and that current environmental value or amenity benefits do not automatically override duties to prevent damage to neighboring properties. The court’s observation of a substantial root causing foundation damage demonstrates that tree disputes extend beyond overhead branches to subsurface root systems.