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[2025] NSWLEC 1902
General information, not legal advice.
Land and Environment Court (NSW)
2025-11-19
Galwey AC
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Jackson v Cannon [2025] NSWLEC 1902
Hearing dates: 19 November 2025
Date of orders: 19 November 2025
Decision date: 19 November 2025
Jurisdiction: Class 2
Before: Galwey AC
Decision: The Court orders that:
(1) The application is granted to the extent of the following orders.
(2) The respondent is to engage and pay for a suitably qualified (minimum AQF level 3) and insured arborist to remove the cypress tree to within 200 mm of ground level within 60 days of the date of these orders. This work must be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.
(3) On at least two days notice from the respondent, the applicant is to allow access to his property for the purpose of cleaning up debris resulting from the tree work.
(4) The respondent is to take all reasonable steps to prevent the tree regrowing from its stump.
(5) Within 6 months of the date of these orders, the respondent is to plant on his property, at least one metre from any property boundary, a tree that can reach at least 6 metres in height.
(6) If within 12 months of the date of these orders the applicant presents the respondent with a copy of a paid invoice for repairing the damaged paving referred to in this judgment, the respondent is to pay the applicant the sum of $957, or the total cost of the repair works if it is less than $957, within 14 days of receiving the copy of the paid invoice.
(7) The exhibits are returned, other than Exhibit A.
Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2 application — neighbouring tree — whether the tree has caused damage to property — preventing further damage — orders for removing the tree — order for compensation subject to completion of works
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW), Pt 2, ss 6, 7, 8, 9, 10, 12
Texts Cited: Safe Work Australia (2016), Guide to managing risks of tree trimming and removal work
Category: Principal judgment
Parties: Christopher Jackson (Applicant)
Adrian Cannon (Respondent)
Representation: Counsel:
C Jackson (Self-represented) (Applicant)
A Cannon (Self-represented) (Respondent)
File Number(s): 2025/292045
Publication restriction: Nil
COMMISSIONER: Christopher and Annette Jackson (the Jacksons) have owned and lived at their Ulladulla property since 2014. They attribute cracks in a paved pathway on their property to roots of a cypress tree (the tree) growing on the adjoining property owned since 2019 by Adrian Cannon (the respondent). The Jacksons have asked Mr Cannon to remove the tree, but he has not done so. Mr Jackson (the applicant) has 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 Mr Cannon to remove the tree and to pay $5,500 for replacing their paved pathway.
The onsite hearing allowed the Court to inspect the tree and both properties. The parties were self-represented. Mr Jackson provided a report from an arborist, Patrick Faulconer, and a ‘Tree inspection checklist’ from Stephen Wilson of Steve Wilson Tree Services. I also rely on my own arboricultural expertise and experience in making this decision.
The orders that Mr Jackson 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.
The Court must not make any order unless it is satisfied, first, that Mr Jackson has made a reasonable effort to reach agreement with Mr Cannon, and second, that the tree has caused, is causing, or is likely in the near future to cause, damage to his property, or is likely to cause injury to a person: s 10 of the Trees Act. Before making any orders, the Court must consider relevant matters at s 12 of the Trees Act.
The mature cypress tree stands in Mr Cannon’s back yard next to the timber paling fence on the parties’ common boundary. The tree appears healthy. Buttress roots at the base of its stem are present on all sides, including near the fence, where roots can be expected to cross the boundary into the Jacksons’ property. Mr Cannon pointed out a sheet of fibro cement at the base of the fence, calling this a root barrier.
On the other side of the fence on the Jacksons’ property, a paved pathway provides access from their alfresco area at the back of their dwelling to the higher ground of their back yard. Two cracks run across the path near the tree, close to the location of buttress roots on this side of the tree. The section of paving nearest the tree is lifted, creating a height differential of some 20 mm at the joint between two sections of paving.
Patrick Faulconer, an arborist, inspected the site and concluded that the tree’s roots have caused the cracking. He also identified tree roots as the cause of damage to retaining walls, but those issues are not part of Mr Jackson’s compensation claim. Mr Faulconer recommended that the tree and its roots be removed. Mr Jackson submitted that tree roots were obviously the cause of paving damage, so no further investigations were required.
Mr Jackson obtained quotes for removing the tree and a quote for replacing the paving. The paving quote does not specify the area of paving to be replaced.
Mr Cannon submitted that the necessary investigations to identify the cause of damage had not been carried out. No paving had been lifted, nor digging done, to find and identify tree roots. He referred to other cases where the lack of such investigations resulted in applications being refused.
Mr Cannon pointed out a downpipe from the Jacksons’ roof directing water to a gap between the paving and a retaining wall. He suggested this might be the cause of damage to the Jacksons’ paving.
I am satisfied that roots have contributed to the Jacksons’ paving damage, even if water runoff, general deterioration over time, and other factors have also contributed. Even without the benefit of further investigations, the pattern of cracking to the concrete pavement is consistent with the expected direction of root growth from, and proximity to, the tree. I am also satisfied that roots will cause further damage.
To prevent further damage, tree removal is required. Mr Cannon submitted that he offered to settle the matter with the Jacksons to avoid Court proceedings and orders. However, that offer included sharing equally the cost of tree removal with the Jacksons, which they refused. Unless the applicant has contributed to the need for tree removal, ordinarily in these proceedings the respondent is ordered to arrange and pay for removal of their tree, and that is what will be ordered here. The Jacksons’ rejection of Mr Cannon’s offer seems entirely reasonable.
Regarding compensation, it is only the paved pathway for which Mr Jackson seeks compensation, not their retaining walls. Mr Jackson noticed a ‘hairline’ crack when they purchased in 2014. He informed Mr Cannon of the issue in 2019 when Mr Cannon purchased his property. Mr Cannon said he would be willing to do something at some point, but it seems that any offer, or intention, was always on his terms, even though the damage was to the Jacksons’ property. Mr Cannon claimed to be unavailable to attend to the issue due to work commitments, but this excuse spanned many years. Had he taken some action earlier, the extent of damage might be less. For this reason, he will contribute to the cost of repairing the paving.
Mr Jackson’s quote of $5,500 does not specify the area of paving to be replaced. It would result in new paving, an improvement compared with adjacent areas of paving that are decades old. Mr Cannon obtained a quote of $957 to grind the paving to remove the trip hazard and to fill the joint and cracks with high-strength grout. This would restore the paving to a safe and functional condition, and seems reasonable considering the age of the paving. I do not suggest that this is the action the Jacksons must take, only that it represents the cost of a reasonable solution, and therefore a reasonable amount of compensation should the Jacksons carry out repairs.
As a result of the above, orders will be made for Mr Cannon to pay for an arborist to remove the tree to within 200 mm of ground level and to take reasonable steps to prevent it regrowing from its stump – for instance, stump-grinding or poisoning, as Mr Cannon sees fit. The works can be completed from within Mr Cannon’s property, so an order for property access will be limited to cleaning up debris. Pursuant to s 6(3) of the Trees Act, the respondents should not be required to gain Council’s consent to carry out the pruning works ordered here. An order will be made for Mr Cannon to plant a replacement tree, further from the boundary. If the Jacksons repair their paving within 12 months, Mr Cannon is to pay them $957 toward the cost of repairs, or the total cost of the work should it be less than that amount.
The Court orders that:
The application is granted to the extent of the following orders.
The respondent is to engage and pay for a suitably qualified (minimum AQF level 3) and insured arborist to remove the cypress tree to within 200 mm of ground level within 60 days of the date of these orders. This work must be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.
On at least two days notice from the respondent, the applicant is to allow access to his property for the purpose of cleaning up debris resulting from the tree work.
The respondent is to take all reasonable steps to prevent the tree regrowing from its stump.
Within 6 months of the date of these orders, the respondent is to plant on his property, at least one metre from any property boundary, a tree that can reach at least 6 metres in height.
If within 12 months of the date of these orders the applicant presents the respondent with a copy of a paid invoice for repairing the damaged paving referred to in this judgment, the respondent is to pay the applicant the sum of $957, or the total cost of the repair works if it is less than $957, within 14 days of receiving the copy of the paid invoice.
The exhibits are returned, other than Exhibit A.
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Jackson
Cannon [2025] NSWLEC 1902