My client’s neighbour had a large fig tree sitting right on the boundary between their properties. For most of the time he had lived there, it had given him no trouble. But over the past few years, things had changed. The roots had cracked his driveway in two places. A plumber had told him the roots were heading toward his stormwater pipes. He had raised it with his neighbour more than once. The neighbour’s position was consistent: it was his tree, it was on his land, and he had no intention of removing it.
My client wanted to know if he had any legal recourse. He also wanted to know whether he could simply cut the roots back himself — he had heard he was entitled to do that, and at that point he was tempted.
The Trees Act and a remedy for homeowners
In New South Wales, disputes about trees on neighbouring land are governed by the Trees (Disputes Between Neighbours) Act 2006 (NSW). The Act gives the Land and Environment Court jurisdiction to make orders requiring an adjoining owner to trim, remove, or take other action in relation to a tree — and, in appropriate cases, to pay compensation for damage already caused.
The scope of what the Court can order is significant and jurisdiction is not limited to damage that has already occurred. Under section 10 of the Act, the Court may make an order if it is satisfied that a tree has caused, is causing, or is likely in the near future to cause damage to the applicant’s property. This meant that my client did not need to wait until his pipes had actually failed. If the evidence established that root intrusion was progressing and pipe damage was a reasonably foreseeable consequence, that was sufficient to engage the Court’s jurisdiction.
The Act also extends to injury to persons, not just property — though that is a less common basis for applications.
There are threshold requirements that applicants must satisfy before the Court will make any order. The Court will consider the species, size, and location of the tree, its age and condition, the nature and extent of the damage or risk, and whether the applicant has taken any steps to resolve the dispute directly. In my client’s case, the fact that he had raised the issue with his neighbour on multiple occasions was relevant. It established that informal resolution had been attempted and had not succeeded, which is precisely the kind of situation the Act is designed to address.
What orders can the Court make?
The Court has the power to order that a tree be trimmed or removed. It can order that the respondent carry out specific works, or that the applicant be permitted to carry out works at the respondent’s expense. It can also make an award of compensation for damage that has already occurred — including to my client’s driveway.
The Court approaches these applications on a case-by-case basis, and it does not automatically order removal simply because a tree is causing inconvenience. The severity of the damage, the value and significance of the tree, and the proportionality of the proposed remedy all factor into the analysis. A tree that is cracking a driveway may attract different treatment from one that is threatening the structural integrity of a dwelling.
It is also worth noting that the Act applies to trees on residential land adjoining residential land. There are different provisions, and different considerations, where commercial or rural land is involved.
Can he just cut the roots himself?
There is a long-standing common law principle that a landowner is entitled to cut back branches and roots that encroach onto their land, up to the boundary line, without needing the neighbour’s consent. This right of self-help is real, and it survives the introduction of the Trees Act.
But there are important things to know before taking this kind of action.
First, the right of self-help does not entitle my client to go onto his neighbour’s land to do the work. It is limited to what can be done from his own side of the boundary. If the root system is such that effective trimming requires access to the neighbour’s property, my client cannot take that access unilaterally.
Second, exercising self-help exposes my client to liability for the consequences of his actions — whether foreseen or not, intended or not. If he was to cut roots so aggressively that the tree became unstable or died, he may be exposed to a claim. The right to cut to the boundary does not carry with it the right to destroy the tree.
Third, council tree preservation controls exist independently of the common law right of self-help, and they can cut across it. Many councils in New South Wales have tree preservation orders or development control provisions that restrict works on trees above a certain size or species — and those restrictions apply regardless of which side of the boundary the tree is on and regardless of whether works are being carried out by the tree owner or the adjoining owner. It is always worth checking whether a problematic tree is subject to any council controls that would require a permit or impose conditions on root works.
The interaction between self-help and the Trees Act
In this case, if my client was to cut back the roots and the damage to his property continued or worsened, a court application would remain available. But if his own actions had contributed to the ongoing damage — for example, by cutting roots in a way that destabilised the tree and caused new problems — that could complicate the analysis of causation and remedy. This new risk can increase the complexity of the dispute, potentially creating more possible grounds for disagreement and blame between parties.
The practical advice in most of these kinds of cases is to consider the Trees Act pathway first, or at least in parallel, rather than taking unilateral action that might create new disputes or affect the strength of a formal application.
What to do if this happens to you
This kind of dispute is not unusual and my client was not without options. The steps I would usually recommend, in rough order, are these.
First, document everything. Photographs of any damage, reports from tradespeople identifying the cause, any written communications with your neighbour — all of this is relevant evidence if the matter proceeds to the Court.
Second, obtain a proper arborist report. The Trees Act requires evidence about the tree’s condition, its likely future growth, and the causal connection between the tree and the damage. An arborist who can give evidence on all of those matters is an important part of any well-prepared application.
Third, consider whether a further, more formal attempt at resolution is appropriate. A letter setting out your legal position and the options available sometimes prompts a response that years of neighbourly conversation have not.
Fourth, if informal resolution fails, consider an application to the Land and Environment Court. The Court has a relatively accessible process for tree dispute applications, and legal representation, while advisable, is not always required for straightforward matters.
A note on the Trees Act more broadly
My client’s dispute was about roots and property damage. But the Trees Act covers a wider range of situations than that. Overhanging branches, risk of a tree falling, damage to retaining walls, interference with views in some circumstances — all of these can fall within the Act’s reach. If you have a dispute involving a tree on a neighbour’s land, the question of whether the Act applies and what it might offer is worth investigating carefully.
The common law right of self-help, the Trees Act jurisdiction, and council tree preservation controls exist as three distinct but overlapping frameworks. Understanding which applies to your situation, and how they interact, is where the legal analysis begins.
If you are dealing with a situation like this, get in touch for a free consultation.
