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The applicant had earlier sought council approval to remove trees. He applied first to remove three trees, with one respondent signing consent; council granted consent to remove three. Later the applicant sought to remove six trees. Council refused the second application. The applicant then sued under s 7 of the Trees Act, seeking removal of the tree row and repairs (Background [2]-[3]).

The hearing was held by telephone due to COVID‑19; the respondents did not attend though one had written that he would remove trees if authorised (The hearing [1]). The applicant provided photographs and other material. The Court concluded on the photographic evidence and description that roots of the trees had lifted the driveway (up to 7 cm), displaced the fence pillar and boundary fence, and caused other minor works damage (Trees have damaged the applicant's property [2]-[4]). Because the Court could not identify which specific trees had caused damage, and concluded surviving trees would likely cause further lifting in the near future, it ordered removal of the entire row to ground level at the respondents' expense. The Court declined to order respondents to pay for driveway repairs, finding replacement disproportionate to the extent of damage (Costs of repairs [1]-[2]; Orders).

Why the court decided this way

The decision turns primarily on statutory criteria in the Trees (Disputes Between Neighbours) Act 2006 (NSW). Two statutory hooks inform the Court's approach.

First, s 10(2)(a) allows the Court to make orders in respect of a tree that "has caused, is causing or is likely to cause damage" to property. The Court required satisfaction that the roots had caused the damage before it could order removal of any particular tree. The photographic evidence and proximity satisfied the Court that roots had lifted the driveway and displaced fencing, so the statutory threshold was met in respect of the row (Trees have damaged the applicant's property [4]).

Second, s 12 requires the Court to consider various matters when deciding what order to make, including the amenity and environmental value of the trees and the likely effect of their removal. The Court expressly weighed the trees' amenity value, they contribute to public streetscape and privacy and are part of the respondents' garden, against ongoing risk and practicability of alternative measures (The trees must be removed [1]). Where the Court cannot identify which specific trees caused damage, it must consider whether leaving some trees in place would expose the neighbour to further damage. Relying on the principle in Yang v Scerri (which treats 'near future' as approximately 12 months), the Court concluded that as the trees grow in girth their roots would continue to lift the driveway; consequently, partial removal would not prevent imminent further damage (All trees in the row are likely to cause damage [1]; Yang v Scerri cited).

The Court also evaluated alternatives. A root barrier could have been an option in some contexts, but here the trees were so close to the boundary and driveway that installing a barrier would have required severing structural roots, potentially destabilising the trees and creating a safety risk. That made non‑removal measures impracticable. Considering amenity but prioritising safety and the prevention of further damage, the Court concluded removal was necessary despite the trees' contribution to amenity (The trees must be removed [2]-[3]).

Finally, the Court exercised discretion on costs of repairs. The applicant had a quote to fully replace the driveway, but the Court found full replacement disproportionate to the limited, localised lifting and cracking visible on the evidence, and held that the respondents had limited practical options to prevent the incremental damage once council refused the removal application. Accordingly, the Court ordered respondents to bear tree removal costs but not to pay for driveway replacement (Costs of repairs [1]-[2]; Orders).

Before and after state of the law

Before this decision, the Act’s framework was established: s 10(2)(a) requires causal connection between tree and damage, and s 12 obliges the Court to balance a set of factors in deciding orders. The Court applied the settled approach from Yang v Scerri about the 'near future' concept and the need to look at practical consequences of partial removal.

After this decision, the law remains consistent with those principles: where trees are planted very close to a boundary causing property damage, and where partial removal or root barriers are impracticable without creating other hazards, the Court will be prepared to order removal of a whole row, especially where the remainder would likely cause further damage within the near future (adopted here as 12 months). The decision reinforces that proportionality in ordering repairs is required; courts will scrutinise repair quotes against observable damage and the respondents' practicable capacities to prevent harm.

This judgment therefore applies existing statutory principles rather than creating novel doctrine. It exemplifies how the Court will treat closely planted mature trees raising immediate damage and safety issues.

Key passages with plain-English translation

1. "I am satisfied that their roots have lifted the driveway. I am also satisfied that root growth has displaced the fence and Mr Lakiss' front pillar." (Trees have damaged the applicant's property [4]).
   Plain English: The judge accepted the photographic and circumstantial evidence and found that the trees' roots were the cause of the driveway lifting and fence displacement.

2. "Each of these trees is supported by roots that must, to some extent, extend beneath the driveway or concrete path. As they continue to grow in girth, they will lift the driveway or path further." (All trees in the row are likely to cause damage [1]).
   Plain English: Even if it is unclear which specific trees have already caused damage, the remaining trees will almost certainly cause more lifting as they grow, making partial removal ineffective.

3. "Despite their value to the respondents' garden and property, the trees must be removed." (The trees must be removed [3]).
   Plain English: Even though the trees provide amenity and privacy, these benefits are outweighed by the risk of ongoing damage and the impracticality of safe alternatives.

4. "The cost for replacing the driveway is disproportionate to the extent of damage... The trip hazard ... could be remedied by grinding." (Costs of repairs [1]).
   Plain English: The judge considered the full replacement quote excessive given the actual damage; a cheaper fix is possible and replacement is not ordered.

5. Orders: respondents must engage and pay for a qualified arborist to remove to ground level all cypress trees in the row within 30 days, in accordance with Safe Work Australia guidelines; respondents to give two days' notice; applicant to provide access. (Orders [1]-[3]).
   Plain English: The respondents must arrange and pay for professional removal, follow safety guidance, notify the neighbour and allow access.

What fact patterns trigger this precedent

This decision is directly applicable where:

• Mature trees are planted very close (sub‑metre proximity) to a neighbour’s paved surfaces or structures and there is physical evidence (photographs, displacement, lifting) consistent with root-induced damage (Trees have damaged the applicant's property [1]-[4]).
• It is not possible to identify reliably which individual trees caused the damage, but the remaining trees are likely to cause further damage in the near future (All trees in the row are likely to cause damage [1]).
• Alternative measures (root barriers, selective pruning or partial removal) are impracticable or unsafe because they would sever structural roots or otherwise destabilise trees (The trees must be removed [2]).
• The public or private amenity value of the trees is outweighed by the risk of continued damage and the need for safety (The trees must be removed [1], [3]).
• The applicant seeks both tree removal and repair costs, but the repair cost is high compared to observable damage and non-replacement remedies are available (Costs of repairs [1]-[2]).

Hence, the case is most instructive where immediate physical evidence supports causation, and practical constraints rule out less intrusive remediations.

How later courts have treated it

This judgment itself cites Yang v Scerri for the 'near future' principle and applies it. The court does not canvass subsequent judicial treatment of its own decision; the judgment does not report on later cases applying Lakiss v Piangas. Therefore, this document does not supply material on how later courts have treated it. Practitioners should search subsequent Land and Environment Court decisions and consolidated legal databases for any citing or application of Lakiss v Piangas after 1 September 2020.

Still-open questions

1. Identification of individual causative trees: The decision orders removal of the whole row where individual causation could not be determined. It leaves open how detailed on-site investigations (e.g. root mapping, arborist root tracing) might alter the outcome if they could reliably identify causative trees. The Court here accepted that identification was not possible on photographic evidence, but different evidence might produce a narrower order (Trees have damaged the applicant's property [4]; All trees in the row are likely to cause damage [1]).

2. The proper evidentiary threshold when relying on photographs and descriptions only: This case proceeded without an on‑site view; the judge found the photographic record adequate. However, the extent to which purely photographic evidence suffices in more contested or complex cases remains a factual matter and may be tested in other cases.

3. Relationship with planning consent regimes: The Court noted the Bankstown DCP and that trees within 3 metres of an approved dwelling wall may not require consent (The trees must be removed [2]). The interaction between local planning controls, council refusal of removal consent, and the Court’s powers under the Trees Act may prompt questions about the extent to which statutory refusal of council consent affects the Court’s discretionary remedies and cost allocation (Background [2]; The trees must be removed [2]).

4. Allocation of repair costs where damage is incremental and longstanding: The Court declined to order repair costs because replacement was disproportionate and respondents had limited options to prevent further damage after council refusal. It remains an open factual and legal question how much earlier notice from the applicant, or earlier responsive steps by tree owners, will shift responsibility for repair costs in other cases (Costs of repairs [1]-[2]).

5. Safety consequences of remedial options: The judgment treats severing structural roots as a safety risk that can make root barriers impracticable. The precise standards and evidentiary proof required to demonstrate such safety risks, and the role of expert arboricultural evidence, will be significant in future disputes.

Practitioners advising clients should therefore gather clear photographic and (where feasible) on-site arborist evidence, consider early engagement with council and neighbours, and assess proportionate remedial options before litigating.