Elder v Singleton

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2 application — neighbouring tree — whether the tree has caused or is likely to cause damage to property — whether the tree owner should pay compensation for property damage – orders for tree removal

Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW), Pt 2, ss 7, 9, 10, 12

Cases Cited: Fang v Li [2017] NSWLEC 1503
Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29

Texts Cited: Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’

Category: Principal judgment

Parties: Alyson Elder (Applicant)
Dorothy Singleton (Respondent)

Representation: Counsel:
A Elder (Self-represented) (Applicant)
A Camp (Solicitor) (Respondent)
Solicitors:
Tonkin Drysdale Partners (Respondent)

File Number(s): 2025/244461

Publication restriction: Nil

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Background

1. COMMISSIONER**:** Alyson Elder (the applicant) has lived at her Summerland Point property, near Lake Macquarie, since 2022. She has engaged a plumber several times to clear her sewer pipe when it has been blocked by tree roots. She obtained advice that the roots were from a weeping hills fig tree (the fig tree) on the neighbouring property belonging to Dorothy Singleton (the respondent). After Ms Elder obtained a quote of over $37,000 to repair the sewer pipe, she gave Ms Singleton’s son, Jason Singleton, a copy of the quote and asked for Ms Singleton to pay for repairs to the sewer pipe and other parts of her property, and to remove the tree. Mr Singleton offered to remove the tree and to pay for a pipe-clearing invoice ($726) and for lifting and relaying of external pavers on Ms Elder’s land. Ms Elder refused the offer and applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (the Trees Act), seeking orders for tree removal and compensation.

2. The onsite hearing allowed the Court to inspect the tree and relevant parts of Ms Elder’s property. Ms Elder was self-represented; Mr Camp represented Ms Singleton. Ms Elder provided a report prepared by an arborist, Russell Kingdom, and quotes for various elements of property repair. I also rely on my own arboricultural expertise and experience in making this decision.

Framework for this decision

3. The orders Ms Elder 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. However, the Court must not make any order unless it is satisfied, first, that Ms Elder has made a reasonable effort to reach agreement with Ms Singleton, and second, that the tree has caused, is causing, or is likely in the near future to cause, damage to the her property: s 10(2) of the Trees Act. Before making any orders, the Court must consider relevant matters at s 12 of the Trees Act.

Reasonable effort to reach agreement

4. Ms Elder had difficulty locating the owner of the adjoining property. Once she identified the real estate agent managing the marketing of the adjoining property, she sent emails to Ms Singleton via the agent. She included copies of quotes for repair works and Mr Kingdom’s report. She sent further correspondence via a lawyer. She relied on the advice she received from Mr Kingdom and others to guide her actions. She could not afford other consultants, such as an engineer, to undertake further investigations.

5. Mr Camp submitted that Ms Elder was not genuinely seeking to reach an agreement. He said the sum of compensation she sought was unreasonable and lacked supporting evidence, and that she ignored the respondent’s attempts to negotiate. Ms Elder filed the application before the timeframe of the respondent’s offer had lapsed.

6. I find Ms Elder did make a reasonable effort to reach agreement. She has no expertise regarding sewer pipes or trees. The plumber and arborist both advised her that tree roots were the cause of the issue and the plumber provided a quote for remedying the issue. It seems reasonable that she relied on the advice and quote. The Trees Act aims to provide a just, quick and cheap avenue for resolving tree disputes, enabling an applicant to avoid excessive costs. In the circumstances, I am satisfied Ms Elder’s efforts to reach agreement with Ms Singleton were reasonable.

The tree has caused and is likely to cause damage

7. Ms Singleton’s tree, a mature and healthy Hill’s weeping fig, is only a few metres from the common boundary she shares with Ms Elder. The tree’s large surface roots, typical for the species, spread across Ms Singleton’s yard.

Sewer pipe

8. The plumber who cleared Ms Elder’s sewer pipe collected root samples. Mr Kingdom inspected the samples and identified them as roots from the fig tree. Mr Camp submitted that the respondent accepts that the roots were most likely from the fig tree. Based on Mr Kingdom’s description of the roots, I find they were most likely from the fig tree. By blocking the sewer pipe, they caused damage to Ms Elder’s property. If nothing is done, the fig tree’s roots are likely to obstruct the pipe again. Orders can be made on this element of the application.

Paving

9. Pavers in Ms Elder’s yard are slightly uneven. One paver with a tree root protruding next to it is distinctly lifted. Otherwise, the state of her paving is generally consistent with the age and condition of her property. By lifting a paver, the tree has caused damage and, if nothing is done, damage will continue in the near future. Orders can be made on this element of the application.

Dividing fence

10. I saw nothing to demonstrate that the steel dividing fence is damaged or that it requires repair or replacement. No orders can be made on this element of the application.

Dwelling

11. Ms Elder submitted that cracks to a window and wall in her bedroom result from tree roots growing near her dwelling’s foundations, causing them to move. Mr Camp submitted that the properties are within a subsidence area and provided supporting documentation (Exhibit 2). Ms Singleton’s evidence included a quote and scope of works for repairing subsidence damage to her own dwelling in 2024. Ms Singleton spent over $7,000 to remedy and prevent property damage caused by subsidence.

12. I cannot be satisfied that cracks to Ms Elder’s wall or damage to her window were caused by the fig tree’s roots rather than subsidence or other ground movement. Tree roots may be present beneath the dwelling’s foundations, and may have contributed to movement, but compensation cannot be ordered on a mere possibility: see Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 at [62]. Investigations such as those outlined in Fang v Li [2017] NSWLEC 1503 at [59] have not been undertaken. The Court cannot make orders on this element of Ms Elder’s application.

Consideration of s 12 matters

13. I have considered the matters at s 12 of the Trees Act. Where they are relevant to this decision, I discuss them below.

Sewer pipe

14. Ms Elder submitted that her sewer pipe includes sections of both the original terracotta pipe and newer PVC pipe. Evidence before the Court does not demonstrate that the fig tree’s roots broke the pipe, only that they were found in the pipe. It is most likely that tree roots have entered via joints between terracotta and PVC sections, or cracks in the old terracotta pipe, before growing further within and blocking the pipe. Were the pipe in good condition, without cracks and the like, roots would be less likely to enter it. I find that other factors, such as the pipe’s condition, have contributed to the ability for tree roots to enter and damage the pipe.

15. The sewer pipe issue was only brought to the respondent’s attention in early 2025. Ms Elder had already cleared the pipe several times. I appreciate her difficulty locating the respondent, but on the timeline she presented, the respondent has had no opportunity to prevent the damage. Nothing seems to have materially changed since Ms Singleton was notified of the damage. If the pipe needs repairing now, it already needed repairing before Ms Singleton had knowledge of the damage. For this reason, it would be unreasonable to shift the cost of repairs to the respondent. No orders will be made for compensation for repairing past or existing pipe damage.

16. The fig tree’s roots are likely to cause further damage to Ms Elder’s sewer pipe in future if the pipe is not repaired such that it is free of cracks and leaks. This could be prevented by completely repairing and replacing the pipe, or by removing the fig tree. If the fig tree is removed and the pipe not repaired, roots of other vegetation may grow into the pipe in future.

Paving

17. Ms Singleton had no knowledge of any damage to Ms Elder’s paving and no opportunity to prevent it. No orders will be made for Ms Singleton to pay compensation for paving repair costs.

18. If the tree remains, its roots are likely to cause further damage to Ms Elder’s paving and other parts of her property. Roots of this species will grow vigorously and conditions in Ms Elder’s property are conducive to root growth. A root barrier may provide short-term prevention but is unlikely to be successful in the long term.

19. The tree provides considerable ecosystem services, most notably shading and cooling, and contributes to the amenity of Ms Singleton’s property. However, as there are no reasonable alternatives for preventing the tree causing further damage to Ms Elder’s property, orders will be made to remove the tree.

Orders

20. The Court orders:

21. The application is granted to the extent of the following orders.

22. The respondent is to engage and pay for a suitably insured and qualified (minimum AQF level 3) arborist to remove the weeping fig tree and grind its stump sufficiently to prevent it regrowing.

23. The works in Order (2) must be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’ and must be completed within 30 days of the date of these orders.

24. The respondent is to give the applicant 7 days notice of the works in Order (2).

25. The applicant is to allow any access required for completion of the works in Order (2) during reasonable hours of the day.

26. The respondent is granted liberty to relist if unable to meet the timeframe for completing the works.

27. The exhibits are returned, other than Exhibit A.

D Galwey

Acting Commissioner of the Court

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