TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2 application — neighbouring trees — whether the trees have caused damage — trees removed prior to hearing — insufficient evidence to demonstrate causal nexus — application refused
Quick Take
1To satisfy s 10(2)(a) of the Trees (Disputes Between Neighbours) Act 2006 (NSW), an applicant must demonstrate a causal nexus between the tree and the alleged damage on the balance of probabilities; the mere presence or proximity of a tree near damaged property is insufficient.
2Reference to general guidance documents such as AS 2870-2011 setback guidelines cannot substitute for site-specific investigations — such as root identification, soil moisture testing, footing examination and elimination of alternative causes — needed to establish that tree roots caused structural damage.
3Where trees have been removed prior to hearing and stumps are being treated to prevent regrowth, the Court is unlikely to find that damage is likely in the near future within the 12-month timeframe established in Yang v Scerri [2007] NSWLEC 592.
