Pt 2 application — neighbouring tree — damaged brick boundary wall — whether the tree must be removed — who should pay the costs of the works — Orders for tree removal and replanting
Quick Take
1Under s 10(2)(a) of the Trees (Disputes Between Neighbours) Act 2006 (NSW), the applicant bears the onus of proving a causal nexus between the tree and the damage. Proximity of a tree to a damaged structure, an arborist's general opinion, and generic planting guidelines (such as a species planting guide or AS 2870) do not establish causation without specific investigation, ordinarily by a structural engineer, that addresses alternative causes.
2Where cracking is widespread across walls of the same construction elsewhere on the applicant's land, that pattern may indicate a wider problem and undermine any inference that a neighbouring tree caused the damage.
3Slip and hygiene risks from bat droppings, where bats feed on the tree's fruit, are caused by the animals and not by the tree itself, so they do not engage s 10(2) (applying Robson v Leischke [2008] NSWLEC 152 at [189]). Even so, on the facts, a tree confined against a boundary wall with its root crown filling the available space was likely to cause damage within the 12-month 'near future' period, which justified its removal with replacement planting.
