TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2 application — neighbouring tree — whether the tree has caused damage — whether the tree is likely to cause further damage — storm water management — lack of evidence — damage to boundary fence — application granted in part
Quick Take
1Proximity of a tree to damaged infrastructure is insufficient to establish causation; direct evidence (such as excavation, photographs, or CCTV footage) is required to substantiate that tree roots caused damage to a stormwater system, following Stevens v Russell [2016] NSWLEC 1233 and Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29.
2Where a structure was built after a self-sown tree was already established, and the structure could have been positioned to avoid the tree, the pre-existence of the tree is relevant to apportionment of responsibility and whether removal is warranted, per Black v Johnson (No 2) [2007] NSWLEC 513.
3Physical displacement of a boundary fence by trunk expansion is sufficient observable evidence to satisfy s 10(2)(a) of the Trees Act without requiring expert reports, and the appropriate remedy is fence modification rather than tree removal where the damage is localised.
