Banks v Cong

1. COMMISSIONER**:** Margaret Banks (the applicant) has applied to the Court seeking orders for her neighbours, Lin Cong and Xian Cheng (the respondents), to remove one tree and to compensate her for costs of approximately $3,000 arising from property damage caused by their trees, as set out in her answer to question 14 of Form H in her application.

2. The onsite hearing allowed the Court to inspect the trees and relevant parts of both properties. The parties were self-represented at the onsite hearing, with the respondents assisted by interpreter Ming Yi Yan. I rely on my own arboricultural expertise and experience in making this decision.

Framework for this decision

3. Ms Banks applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (the Trees Act). The orders she seeks are orders the Court can make at s 9 of the Trees Act, although the Court may make different orders as it sees fit.

4. Relevant issues to be determined in these proceedings are:

5. Whether Ms Banks has made a reasonable effort to reach agreement with the respondents and given the required notice of the application: s 10(1) of the Trees Act.

6. Whether the Court can be satisfied that the trees have caused, are causing, or are likely in the near future to cause, damage to Ms Banks’ property, or are likely to cause injury to any person: s 10(2) of the Trees Act.

7. If so, how consideration of relevant matters at s 12 of the Trees Act should influence any orders to be made.

8. Although two of the three trees in the application have already been removed, pursuant to s 4 of the Trees Act the Court can still make orders regarding those trees.

Whether the applicant made a reasonable effort

6. Ms Banks provided evidence of attempts at mediation and discussions with Mr Cong and Ms Cheng. I am satisfied that she has made a reasonable effort to reach agreement with them and that the timeframe set down by the Court has allowed for the required notice of the application.

The trees

7. Three trees grew in the respondents’ back garden, close to their rear dividing fence shared with the applicant. Tree 1 was a mature hackberry (Celtis australis), the largest of the trees. It has been removed and its stump has been ground out. A large root from Tree 1 remains on Ms Banks’ property.

8. Tree 2 was an avocado tree (Persea americana) that has been removed and its stump ground out.

9. Tree 3 is a crape myrtle (Lagerstroemia indica) that has been pruned.

Whether the trees have caused, or are likely to cause, damage

10. Tree 1 has caused damage to Ms Banks’ property. The large root that grew beneath some concrete paving behind her shed pushed up and cracked the concrete. Now that the tree has been removed, it is unlikely to cause damage in future.

11. I cannot be satisfied that Tree 2 has caused damage to Ms Banks’ property. Its roots spread into her property but the evidence provided did not demonstrate any damage caused by its roots. The tree has been removed and is unlikely to cause damage in future.

12. There is no evidence that Tree 3 has caused damage. Regarding future damage, the Court must be satisfied that the tree is likely to cause damage in the near future. In Yang v Scerri [2007] NSWLEC 592 at [14], the Court considered a period of the next 12 months reasonably represents the near future. Ms Banks pointed out a small root that grows from the tree into her property, but nothing suggests it is likely to cause damage in the near future.

Relevant matters at s 12 of the Trees Act

13. Orders can therefore be made only in relation to Tree 1, but before making any orders the Court must consider the matters at s 12 of the Trees Act. Most relevant here would be the actions or omissions of the of the parties: s 12(h) of the Trees Act.

14. The applicant has gone to considerable effort to expose roots and to show their contribution to the damage, leaving me with no doubt that Tree 1 caused damage to her concrete. However, I note that the 2021 photograph she provided shows significant cracking to the concrete at that time. Ms Banks stated during submissions that she notified the respondents of cracking to the concrete around two years ago, so around 2023, approximately two years after she took the 2021 photograph.

15. The respondents have taken all reasonable steps to prevent damage. They maintained Tree 1 over time to minimise leaves and debris falling onto Ms Banks’ garage. They removed Tree 1 promptly in 2023 when informed that its roots were damaging Ms Banks’ concrete. Evidence does not show, and I could not see, that damage to the concrete continued after the respondents removed Tree 1. The respondents removed Tree 2 when informed it might be causing property damage.

16. The general condition of the concrete behind Ms Banks’ shed seems somewhat dilapidated due to its age and quality of construction. I accept that Tree 1 caused the large crack shown in photographs, but because that crack formed before the respondents were informed of any damage, and they had no means to prevent the damage, I see no reason to shift the cost of repairs, or any cost of works, to the respondents. As a result, the respondents will not be responsible for the costs claimed by Ms Banks.

17. According to both parties, the dividing fence is now undamaged, having returned to its proper alignment after roots of Tree 1 were ground out, and requires no orders from the Court.

18. Other matters at s 12 of the Trees Act, such as privacy, do not require consideration here, even though they were raised in submissions.

Orders

19. The Court orders:

20. The application is refused.

21. The exhibits are returned, other than Exhibits A and B.

D Galwey

Acting Commissioner of the Court

**********

Amendments

03 October 2025

Amended jurisdiction type.