May v Chard

Publication restriction: Nil

Judgment

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

Background

1. COMMISSIONER**:** On 29 April 2025, Patricia May filed an application with the Court seeking the following orders relating to a neighbouring tree (‘the tree’):

2. The C**asuarina cunninghamiana located at 14 Chartley Street and identified as T1 in this application is lopped and poisoned within 30 days of the date of these orders;

3. The applicant is to engage an appropriate contractor to grind and remove the roots in the applicant’s property;

4. The applicant is to provide to the respondent within 2 days of receipt the tax invoice issued by the contractor for the completed works specified in order 2. The respondent is to pay the contractor the full amount of the tax invoice for the completed works specified in order 2;

5. The applicant is to engage an appropriate contractor to lay fresh turf to the remediated areas of the applicant’s property;

6. The applicant is to provide to the respondent within 2 days of receipt the tax invoice issued by the contractor for the completed works specified in order 4. The respondent is to pay the contractor the full amount of the tax invoice for the completed works specified in order 4;

7. The applicant is to engage an appropriate contractor for the removal of the roots from the retaining wall and the make good of the retaining wall in the applicant’s property.

8. The applicant is to provide to the respondent within 2 days of receipt the tax invoice issued by the contractor for the completed works specified in order 6. The respondent is to pay the contractor the full amount of the tax invoice for the completed works specified in order 6.

9. The tree is on Peter Chard’s property. After receiving a copy of the application, Mr Chard removed the tree on 28 May 2025 and offered to pay for his contractor to grind roots in Ms May’s garden. Ms May declined the offer, as it dealt only with removing tree roots, not with replacing her turf.

10. The hearing took place onsite, allowing me to observe both properties. Ms Griffith represented Ms May; Mr Chard was self-represented. Ms May’s evidence included a report from Stephen Williams, an arborist with Hunter Horticultural Services, a report from Stephen Savage, an engineer with CSG Engineers, and quotes for replacing a retaining wall, grinding roots, and replacing turf.

Framework for this decision

4. Ms May applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘Trees Act’). The tree is on land adjoining the applicant’s land. The orders she seeks are orders the Court can make at s 9 of the Trees Act. Therefore, relevant issues to be determined in these proceedings are:

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

6. Whether the Court can be satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or is likely to cause injury to any person: s 10(2). Damage refers to damage to property on the applicant’s land: s 7.

7. How consideration of the relevant matters at s 12 of the Trees Act should influence any orders to be made.

Reasonable effort to reach agreement

5. Ms May and Mr Chard attended mediation three times before Ms May filed her application with the Court. They were unable to reach an agreement. I am satisfied that Ms May has made a reasonable effort to reach agreement with Mr Chard and that the timeframe set down by the Court has allowed for the required notice of the application.

The tree

6. At the time of the hearing, all that remained of the tree was its stump. Mr Chard submitted that the stump was poisoned to prevent regrowth. He said the tree was about 50 years old. This seems reasonable, as its stump was about 600 mm across. The stump is close to the common boundary between the two properties. Although the tree has been removed, it is still taken to be on the land for the purposes of this application: s 4(4) of the Trees Act.

7. Mr Williams identified the tree as Casuarina cunninghamiana (river oak). He identified surface roots and suckers within Ms May’s property as being from the Mr Chard’s tree. A river oak sucker on another property behind Ms May’s land is becoming an established tree.

Damage

8. Ms May submitted that the tree’s roots have damaged her ground, her lawn, and a retaining wall. The turfed area of her back garden is uneven around some of the tree’s surface roots. The lawn is sparser than it was in 2015 when Ms May purchased her property. She provided two photos from that time.

9. Damage to the ground, such as might result from surface roots creating uneven ground, is not damage to property on the applicant’s land: see Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 at [166].

10. Photographs from 2015 show the lawn in Ms May’s back garden was in better condition then than it is now. This could be considered as minor damage.

11. Ms May was unable to point out any damage to her retaining wall at the onsite hearing. Mr Savage, an engineer, found no damage to the retaining wall (Exhibit D). Mr Savage found only that there was potential for roots to damage the retaining wall, which is “weak and susceptible to damage” (p 5). However, damage is unlikely now that the tree has been removed and its stump poisoned.

12. The only damage that the tree may have caused is some degradation of Ms May’s lawn.

Injury

13. Ms May submitted that the tree’s roots create a trip hazard, which I accept. Before making any orders on this element of the application, I must consider matters at s 12 of the Trees Act.

Relevant matters at s 12

14. Most relevant in these proceedings is s 12(i):

(i) if the applicant alleges that the tree concerned is likely to cause injury to any person—

(i) anything, other than the tree, that has contributed, or is contributing, to any such likelihood, including any act or omission by the applicant and the impact of any trees owned by the applicant, and

(ii) any steps taken by the applicant or the owner of the land on which the tree is situated to prevent any such injury,

15. The degradation of Ms May’s turf may be due to competition from the tree’s roots, but other factors have likely contributed: shade from other trees, wear and tear, weather, and changes in irrigation. The turf is still serviceable. If it has been damaged by the tree, the damage is so minor as to not warrant orders from the Court.

16. Ms May submitted that surface roots appeared in her lawn only recently. But roots can be seen in the 2015 photograph that she provided to the Court. And roots are large enough that they were present well before Mr Chard was informed. Had he been informed earlier, the extent and costs of any remedy would have been minimal.

17. Mr Chard has acted reasonably, taking necessary steps to prevent damage by promptly removing the tree and offering to grind its roots.

18. As a result of the foregoing, Ms May’s application for compensation is unsuccessful. In closing submissions, Ms Griffith suggested that Mr Chard should be ordered to pay Ms May’s costs should his response to the application be found to be inadequate. To my mind, Mr Chard has responded adequately, but regardless of that, Commissioners of the Court lack the power to make orders for costs in these proceedings.

Orders

19. The Court orders:

20. The application is refused.

21. The exhibits are retained.

D Galwey

Acting Commissioner of the Court

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