Mayer v Teiwes [2026] NSWLEC 1191

| Tree or issue | Applicants’ proposed orders | Respondents’ alternative orders | | T1: Sweetgum | Remove; grind out stump | Remove | | T2: Umbrella tree | Remove; grind out stump | Retain; paving repair works to avoid damaging roots of T2 | | T3: Cocos palm | Biannual pruning to remove dying fronds etc. | Remove | | T4: Cocos palm | Biannual pruning to remove dying fronds etc. | Remove | | T5: Cocos palms (4 in a cluster) | Biannual pruning to remove dying fronds etc. | Remove | | T6: Creeping fig and other vegetation | Remove from No 67’s garage wall; prevent regrowth | | | T7: Port Jackson fig | Re-pot so that no roots are in the ground | Leave as is | | T8: Camellia and other vegetation | Annual pruning by contractor for clearance to fence and powerlines | Respondent to prune | | Tree removal costs | All tree removal and other tree work at respondents’ cost | All tree removal costs shared 50/50 by the parties (costs to be determined) | | Any new plantings | Any new trees to be at least 1 metre from dividing fence and 1.5 metres from any structure; any trees in the side courtyard to have roots within pots, not natural soil | | | Paving in applicants’ courtyard | Applicants to repair paving; respondents to reimburse applicants for cost of paving repairs (cost to be determined; applicants have one quote for $22,904) | Respondents to arrange paving repairs; paving repair costs shared 50/50 by the parties (costs to be determined) | | Rear dividing fence | Applicants to repair rear dividing fence; respondents to reimburse applicants for cost of rear dividing fence works (cost to be determined) | Respondents to arrange rear dividing fence repairs; fence repair costs shared 50/50 by the parties (costs to be determined) | | Front dividing fence | Applicants to repair front dividing fence; respondents to reimburse applicants for 50% of the cost of front dividing fence works (cost to be determined) | | | Sewer and other plumbing costs | Respondents to compensate applicants for costs of clearing sewer pipe and clearing blocked toilet and basin ($5,747) | | | New order 13 on the day of the hearing | Applicants to replace terracotta sewer pipe; respondents to reimburse applicants for 50% of the cost of the works | | | Cost of clearing vegetation | Respondents to compensate applicants for cost of clearing respondents’ vegetation from applicants’ garage wall ($1,122) | No order for compensation for past clearing of vegetation | | Costs | Respondents to compensate applicants for cost of arborist report | |

2. During the onsite hearing, the Court inspected the trees and relevant parts of both properties. The parties were self-represented, other than Ms Peterson who was represented by Jack Teiwes, the respondents’ son, who lives at No 65 and has been involved in attempts to resolve the tree issues. In this judgment I refer to the occupants of No 67 as ‘the Mayers’ and those of No 65 as ‘the Teiwes’.

3. The parties raised the issue of the late receipt of some documents. All documents were accepted by the Court as the parties have had time to review them, so I do not believe this will be unfair to any party. It is important that the Court be as fully informed as possible. No expert reports were filed. I rely on my own arboricultural expertise and experience when determining this matter.

Application to the Court

4. The Mayers applied for orders pursuant to s 7 (Pt 2) of the Trees Act to prevent trees causing damage to their property or injury to a person, and for the cost of remedying damage caused by trees. As required by s 7, the trees are situated on adjoining land.

Notice of the application

5. The Mayers gave notice of their application as required by s 8 of the Trees Act.

Jurisdiction to make orders

6. The orders that the Mayers seek are orders the Court could make at s 9 of the Trees Act if all jurisdictional tests are met, although the Court may make different orders as it sees fit in the circumstances.

Reasonable effort to reach agreement

7. The parties agree that they negotiated at length seeking a suitable outcome. They almost reached an agreement, with a draft deed prepared. The Teiwes thought negotiations were still live when they received a copy of the Mayers’ tree dispute application. It was apparent during the onsite hearing that the relationship between these neighbours has soured over time. Their positions on some issues within the tree dispute were opposed and unmoving, so they were unlikely to reach agreement with further negotiation. Over several years, the Mayers have sent emails to the Teiwes, held in-person discussions, engaged an arborist, and paid for works to some of the Teiwes’ trees and other vegetation. I am satisfied that the Mayers made a reasonable effort to reach agreement: s 10(1)(a) of the Trees Act.

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

8. The Court may only make orders in these proceedings if the hurdle at s 10(2) of the Trees Act is passed. For each tree in the application, the hurdle at s 10(2) must be passed before orders can be made for that tree.

10 Matters of which Court must be satisfied before making an order

(1) …

(2) The Court must not make an order under this Part unless it is satisfied that the tree concerned—

(a) has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or

(b) is likely to cause injury to any person.

T1: sweetgum

Evidence and submissions

9. A sweetgum (Liquidambar styraciflua) (T1) is located in the side courtyard of No 65 between the rear part of the dwelling and the dividing fence. The sweetgum is around 14 metres tall with a broad crown that spreads above both properties, but more so over No 67. In recent years, several branches have broken and fallen during storms; one broken branch, now dead, still hangs in the crown. A branch that fell during a storm on 27 January 2025 damaged the timber lattice on top of the dividing fence.

10. The sweetgum’s stem and root crown now push against the timber paling dividing fence, which is displaced.

11. The Mayers submitted that more branches are likely to fall from this tree in future. The Mayers submitted that the tree has damaged the fence and that its roots have spread throughout their courtyard and have disrupted their brick paving, which photographs show was in good condition when they purchased their property. The Mayers obtained written advice from an arborist, Josh Baber, noting the tree’s poor structure and recommending its removal. Although T2 is nearby, Mr Baber thought the sweetgum was the principal cause of damage to the paving. The Mayers are concerned that their uneven paving creates a trip hazard. The Mayers are also concerned that the tree might fall onto their property. The Mayers want the tree removed and its stump ground out at the Teiwes’ expense. They want the Teiwes to pay for repairs to the dividing fence and for rectification works to brick paving in the Mayers’ courtyard.

12. The Teiwes do not dispute that the sweetgum has damaged the Mayers’ property. The Teiwes agree that the tree should be removed, but they submitted that the costs of its removal and all rectification works to the dividing fence and the Mayers’ paving should be shared equally by the parties.

Findings

13. The sweetgum has damaged the fence where its stem has grown against and displaced the fence. I am also satisfied that the tree’s roots are responsible for at least some of the displacement of the Mayers’ paving. Where pavers have been removed to expose roots beneath, the bark of those roots appeared to me to be that of sweetgum. Pursuant to s 10(2)(a) of the Trees Act, orders can be made for this tree.

14. Past branch failures have opened the sweetgum’s crown to changed wind forces. Further branch failures are likely in the near future, or within 12 months as per the principle in Yang v Scerri [2007] NSWLEC 592, and are likely to damage the fence or other elements of the Mayers’ property. In the absence of any reasonable alternative to prevent further damage, tree removal seems the only appropriate outcome.

15. Before determining the nature of orders for the sweetgum and damage associated with it, the Court must consider matters at s 12 of the Trees Act (s 12 matters). The s 12 matters that relate directly to the tree are considered here; others are considered later in this judgment.

16. The sweetgum is close to the common boundary. Its crown overhangs the Mayers’ property, with its branches close to their dwelling. The tree’s stem pushes against the dividing fence, which it has displaced.

17. Pruning or removing the sweetgum would ordinarily require consent from Inner West Council (Council). Because the tree is within a Heritage Conservation Area, a development application would be required. None of the exemptions within the Inner West Council Tree Management Development Control Plan 2023 (the Tree DCP) would apply.

18. The sweetgum provides benefits including shading and cooling to both properties, other ecosystem services, and screening for privacy. It makes no significant contribution to public amenity, nor does it have any social or other environmental value.

19. While the sweetgum would tolerate some pruning, the issues it causes cannot be resolved through pruning. In the absence of any reasonable alternative, the tree must be removed. Orders in these proceedings will include the tree’s removal. The nature of the orders will follow consideration of other s 12 matters later in this judgment.

T2: umbrella tree

Evidence and submissions

20. A mature umbrella tree (Heptapleurum actinophyllum (syn. Schefflera actinophylla)) (T2) is located next to the dividing fence on the Teiwes’ land, between the two dwellings, a little to the south of T1. It is healthy and structurally sound. One small lower branch grows against the dividing fence.

21. Mr Baber wrote in a letter to the Mayers on 10 February 2025:

“The boundary fence is already being displaced by the root crown, which is immediately adjacent to a supporting post. The main stem and root crown can get significantly larger toward maturity and will likely cause enough damage to warrant repairs to the boundary fence at some stage.

If the Liquidambar is removed, I am informed by the client that repair works will commence on the significant uplifting of the pavers within their rear yard. Although the majority of damage is likely being caused by the Liquidambar, there will also likely be roots from the Umbrella Tree that are contributing to this damage. As large diameter root pruning would not be recommended so close to the main stem, any roots encountered within the new paving profile would prevent correct installation and cause ongoing lifting as the tree continues to grow.”

22. The Mayers submitted that the umbrella tree’s roots have contributed to the disruption of their paved courtyard. Apart from the damage caused, this also creates a trip hazard, leading to a risk of injury. They want the tree removed to prevent further damage.

23. The Mayers submitted that the umbrella tree is a weed species.

24. The Teiwes want to retain the umbrella tree. It provides privacy for a bedroom as well as shading and cooling for their dwelling. It provides a leafy outlook from within their dwelling. They submitted that remediation of the Mayers’ paving must be done without damaging the tree’s roots.

Findings

25. The umbrella tree has caused minor damage by displacing the fence slightly. Pursuant to s 10(2)(a) of the Trees Act, orders can be made for this tree. Reasonable solutions to remedy and prevent damage seem available without requiring the umbrella tree’s removal. Damage to the fence could be avoided by removing the one small lower branch and by making adjustments to the bottom of the fence to create sufficient clearance for growth of the root crown.

26. It is unclear whether the umbrella tree’s roots have contributed to disruption of the Mayers’ paving, but it is likely that the tree’s roots grow in that area.

27. I have considered relevant s 12 matters. Removing the adjacent sweetgum (T1) will change wind loads to the umbrella tree. Pruning the umbrella tree to reduce its crown size will minimise the effects of these changes. The species is very tolerant of pruning and will reshoot from lower parts as needed. Reducing the tree’s crown will also minimise adverse impacts from any root loss that occurs during remediation works to the Mayers’ paving, thereby allowing removal of any roots encountered beneath the paving.

28. As with the sweetgum, the umbrella tree is located next to the common boundary, although its crown does not overhang the Mayers’ property to the same extent. Pruning the tree would ordinarily need Council’s consent, requiring a development application to be lodged.

29. The umbrella tree provides shade and cooling. It contributes to the amenity of the Teiwes’ property. It has no social or environmental benefits beyond that.

T3, T4 and T5: cocos palms

Evidence and submissions

30. Six cocos palms (Syagrus romanzoffiana) (T3-T5) are located near the common boundary. T3 and T4 are a short distance to the north of T1. T5 is a clump of four palms further north near the Mayers’ garage.

31. The Mayers submitted that the palms’ crowns are mostly above No 65, but dead fronds, bracts and fruit that fall from the tree onto No 67 are likely to injure someone. They want the Teiwes to regularly remove dead fronds and fruit from the palms.

32. The Teiwes submitted that the six palms have little benefit for them and they would prefer to remove them rather than regularly maintain them.

Findings

33. The six palms, T3-T5, have not caused damage to the Mayers’ property, nor do they appear likely to do so in the near future. I accept that fronds, bracts and fruit clusters are likely to fall onto both the Mayers’ property and the Teiwes’ property, but I cannot be satisfied that they are likely to cause injury. Palms such as these are common throughout suburban gardens and reported injuries associated with them are rare. While the Teiwes might be willing to remove the palms, the Court can only order their removal if it is satisfied that the palms are likely to cause damage or injury, which I am not. Pursuant to s 10(2)(a) of the Trees Act, no orders can be made for the six palms, T3-T5.

34. Because the palms are located within a heritage conservation area, the exempt species list within the Tree DCP does not apply. Should the Teiwes wish to remove the palms, they will need to lodge a development application with Council.

T6: creeping fig and other vegetation

Evidence and submissions

35. Vegetation on the Teiwes’ property adjacent to the Mayers’ garage included creeping fig, monstera, camphor laurel, camellia and cassia. After some negotiation, the vegetation has largely been removed. The Mayers wrote at question 4 of Form H (in Exhibit A):

“The Applicants acknowledge that their garage wall is in poor condition and needs to be repaired. The Applicants request that the Respondents, on an ongoing basis, keep the Applicants' garage wall free from vines and other plants that are likely to cause damage.”

36. The Mayers submitted that the vegetation must be kept clear of the garage so that they can carry out repair works to the garage, which they plan to do within 6-12 months.

37. The Teiwes submitted that they have difficulty preventing some of the plants regrowing, particularly the creeping fig.

Findings

38. Before being cleared, the creeping fig or the monstera, or perhaps both, grew onto the roof of the Mayers’ garage. Other vegetation in T6 grew against the garage wall. At the time of the hearing the vegetation was mostly clear of the garage wall. No evidence of past damage caused by this vegetation was presented. I saw nothing to suggest that vegetation within T6 is likely to cause damage to the garage within the near future; nor is it likely to cause injury. Pursuant to s 10(2) of the Trees Act, no orders can be made on this element of the application. It follows that the Court cannot order compensation of $1,122 sought by the Mayers for vegetation clearing works they arranged.

T7: Port Jackson fig

Evidence and submissions

39. A Port Jackson fig (Ficus rubiginosa) (T7) is located next to the Teiwes’ dwelling near the umbrella tree (T2). It was once planted in a pot, which remains, but its roots have clearly grown beyond the pot and are well anchored in the surrounding soil.

40. The Mayers wrote at question 4 of Form H (in Exhibit A):

“Some species of fig trees are known to have a very vigorous root system that can cause serious problems to the foundations of buildings and infrastructure. The Applicants are very concerned that as the tree continues to grow, it will cause problems to the Applicants' terrace courtyard, sewer pipes, stormwater pipes, and building foundations.”

41. The Mayers want the fig tree transplanted into a new pot that prevents its roots growing into the surrounding soil.

42. The Teiwes submitted that the tree causes no problems; it is close to their dwelling but 2 metres or so from the dividing fence. They appreciate the amenity the tree provides to their property.

Findings

43. The fig tree’s roots have spread from the pot into the surrounding soil and may even grow past the common boundary, even though no roots from the fig tree have been identified on the Mayers’ property. The mere possibility that they might cause damage at some time in the future is not sufficient to enliven the Court’s jurisdiction at s 10(2)(a) of the Trees Act. I cannot be satisfied that the tree is likely to damage the Mayers’ property in the near future, so no orders can be made on this element of the application.

T8: camellia and other vegetation

Evidence and submissions

44. A camellia (Camellia sp.) and other vegetation (T8) grow in the Teiwes’ front setback near the common boundary shared with the Mayers. A low picket fence marks the boundary. Service wires to the properties pass above this vegetation.

45. The Mayers have been concerned about branches growing into the service wires. The Mayers submitted that they asked the Teiwes to prune the camellia to clear it from the service wires. They submitted this should be done by a suitably qualified contractor. They also asked the Teiwes to prune the vegetation clear of the fence. They said the vegetation was pushing the fence into their property.

46. The Teiwes submitted that they pruned the camellia recently and will maintain it clear of the service wires in future. They have the ability to do this themselves so see no need to engage a contractor. They will also maintain the vegetation clear of the picket fence.

Findings

47. I observed no damage caused to the dividing fence by the camellia or other vegetation in the Teiwes’ front setback. The camellia has not damaged the service wires. The Teiwes have demonstrated that they can prune this vegetation as needed, so it is unlikely to cause damage in the near future. Their expressed commitment to maintain this vegetation is noted here. Pursuant to s 10(2) of the Trees Act, no orders can be made on this element of the application.

Consideration of other matters

48. Matters at s 12 of the Trees Act must be considered before determining the application. Where the s 12 matters are relevant to each tree, they have been considered above. Where they relate more to the nature of damage and the determination of appropriate orders, such as apportioning the cost of remediation works, they are considered below.

Actions of the parties

49. Matters the Court is to consider at s 12 of the Trees Act include:

(h) if the applicant alleges that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property—

(i) anything, other than the tree, that has contributed, or is contributing, to any such damage or likelihood of damage, 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 or rectify any such damage,

(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,

50. Both the Mayers and the Teiwes gave extensive submissions on the nature of an agreement that was never finalised and the process of preparing that agreement and then its final failure. Despite the deterioration of the relationship between these neighbours over the years, they had managed to negotiate and almost reach agreement on all elements of their tree dispute. In 2021, the Mayers asked the Teiwes for permission to remove the sweetgum (T1) at their own expense. Other trees were discussed over the next few years and, in February 2025, the Mayers made a 10-point offer to the Teiwes that included tree works, fencing works, paving works and sharing of costs. A month later, the parties verbally agreed on the key points of an outcome acceptable to all, and the Mayers engaged legal assistance to prepare a draft Deed of Agreement (draft DoA), which they sent to the Teiwes in May 2025. The Teiwes expressed confirmation that they would like to move ahead with the agreement and, after providing their initial feedback on the draft DoA in July 2025, they returned a marked-up version in September 2025 highlighting proposed deletions and additions and seeking clarification on some clauses (pars 52-63 of Exhibit B). The Mayers emailed the Teiwes in October 2025, saying there were many proposed changes that they did not agree with and that they were going away for a month so would be in touch in November 2025 (see Exhibit 1). The Mayers next emailed the Teiwes on 15 December 2025 about debris that had fallen from the Teiwes’ palms, but with no mention of the draft DoA. The following day, the Teiwes replied via email agreeing to assist with cleaning up the debris and also writing (copied from Exhibit 1):

“On the broader matter of trimming the Cocos Palms further, we have already agreed in our revisions to the Deed to eliminate the Cocos Palms altogether. However, since your return in early November we have received no further communication from you on the Deed. We are concerned that it is rapidly approaching a year since the big storm without resolution of these issues.

We remain willing to take up the larger questions in the Deed in January after the Christmas-New Year season, if you are ready.”

51. The next day, the Mayers emailed the Teiwes, again with no mention of the draft DoA (copied from Exhibit 1):

“Thanks for offering Jack’s help, but we have already taken care of the debris in our backyard.

As mentioned several times in the past, the responsibility for your trees remains with you until they have been removed.

We have plants growing in very close proximity to your trees. This includes a mature Dragon tree that could cost you in excess of $5,000 to replace should it sustain any damage from debris falling from your trees.

Once again, we can see dry bracts and fronds hanging from your Cocos Palm. They are in your property but are likely to fall in ours like the ones that fell two days ago. We kindly request that you take immediate action to remove all dead fronds and bracts from your Cocos Palms to prevent damage or injury.”

52. The next correspondence took place two weeks later on 1 January 2026, when the Mayers emailed the Teiwes (copied from Exhibit 1):

“As you will recall, back in late March last year, both parties agreed to have a draft Deed prepared by a solicitor to formalise our agreement, which we undertook and emailed you on 26 May 2025.

The original cost of this draft Deed of Agreement was $6,000.00 but we negotiated a discount with the solicitor that is reflected in their invoice which brought the cost down to $4,950.00.

Please find attached the solicitor's invoice for drafting the Deed of Agreement.

We have paid this bill many months ago. We are sorry it has taken us this long to forward the invoice to you.

Your 50% share of the legal fees relating to preparing this draft is $4,950.00 / 2 = $2,475.00

Could you please organise an EFT to us for $2,475.00.”

53. The Mayers did not explain why they were no longer willing to finalise the draft DoA, other than Ms Stoll De Mayer stating at pars 64-65 of her affidavit (Exhibit B):

“We became very concerned about the considerable time that would be required to finalise negotiations and update the Deed, and the additional cost to us, particularly in legal fees. To date, we have already spent well in excess of $12,000 in legal and arborist fees to try to reach an agreement with the Respondents. Notwithstanding both parties agreeing to prepare the Draft Deed that had a total cost of $4,950.00, the Respondents have not contributed their 50% share of this cost.

Given the above scenario, our obvious choice was to appeal to the Land and Environment Court. We understand that this Court is committed to the just, quick and cheap resolution of the proceedings, which is exactly what we are seeking.”

54. The Teiwes submitted that the email surprised them, as they thought the parties were almost agreed on the draft DoA other than a few details. They submitted that they had never agreed to pay half the Mayers’ legal costs of preparing the draft DoA and had, after all, incurred their own legal costs in responding to the draft DoA with proposed changes. They were further surprised when they received a copy of the Mayers’ application to commence these proceedings, which was filed with the Court on 2 January 2026.

55. The draft DoA was produced in evidence. I summarise its outcomes on trees and financial matters here. The Mayers based their cost estimates for works on quotes they obtained.

56. Removal of the Teiwes’ sweetgum (T1), umbrella tree (T2), cocos palms (T3-T5) and vegetation on the Mayers’ garage (T6).

57. Grinding of stumps and roots of the sweetgum (T1) and umbrella tree (T2), including roots on the Mayers’ property.

58. Rectification of the dividing fence.

59. Rectification of the Mayers’ paving.

60. A table of costing prepared by the Mayers to accompany the draft DoA showed all costs shared 50/50 by the parties, with costing and estimates as follows:

61. DA lodgement: $620

62. Arborist report if required: $3,905

63. Tree removal and stump grinding works: $12,749

64. Rectification of Mayers’ paving: $11,523

65. Fence repair: uncosted

66. Sewer repair: not included in draft DoA

67. The draft DoA also included restrictions on future plantings on the Teiwes’ property.

68. Issues which remained in dispute in the draft DoA included: which party should be responsible for engaging and paying contractors before being reimbursed by the other; and who should lodge the development application with Council. The nature of these elements of the draft DoA left room for ongoing dispute between the parties.

69. Ordinarily in tree dispute proceedings under the Trees Act, costs of tree works fall to the tree owner unless there is a reason to apportion costs otherwise. The costs of rectification work may be apportioned according to the trees’ contribution to any damage, along with other elements that might have contributed to damage, including acts and omissions of the parties. The draft DoA between the Mayers and the Teiwes was never finalised, but they spent considerable time in its preparation and it reflected their efforts and their willingness to compromise, so I have given it some consideration here. The outcome here must still follow the Trees Act’s framework – for instance I cannot make orders for the cocos palms despite the inclusion of their removal in the draft DoA – but when apportioning costs and allocating responsibility for works, the draft DoA has been in my mind. When allocating responsibility for arranging works, and apportioning the cost of works, I have tried to provide a simpler but fair path that will minimise the potential for further disputes during the works.

70. Pursuant to s 6(3) of the Trees Act, any tree works ordered in these proceedings will not require Council consent. For tree works ordered here, the costs for the development application and arborist report shown above at [56] will not be required. The costs of tree works, which are principally on the Teiwes’ property, and paving rectification works, entirely on the Mayers’ property, are in the same ballpark, each estimated at around $12,000. The Mayers’ costs estimate for tree works includes the removal of the sweetgum (T1), umbrella tree (T2) and cocos palms (T3-T5). While orders will be made below for the sweetgum’s removal, orders for the umbrella tree will be for pruning only and there are no orders for the palms, so the cost of tree works should be less than that shown above.

Costs of tree works

61. The need to remove the sweetgum (T1) and prune the umbrella tree (T2) does not result from any act or omission of the Mayers. As is usual in these proceedings, the Teiwes will arrange and pay for the tree works ordered below.

Any new plantings

62. The Mayers wrote at question 16 of Form H (in Exhibit A):

“The Inner West Council's General Conditions attached to their Notice of Determination of a Development Application for the removal of a tree, states that replacement trees should be planted “... in a suitable location within the rear yard of the property (at least 1 metre from any boundary and 1.5 metres from any structure) and allowing for future tree growth”. In line with these Council guidelines for the location of replacement trees, the Applicants seek orders for the Respondents to abide by these same guidelines for any new tree plantings so as to prevent damage to building structures, fences and infrastructure.

…

Both terraces are Heritage Items and, as explained by the Inner West Council's Heritage Officer, the owners have a responsibility to ensure that “the location, type and size of any plantings should be considered so they will not cause damage to the original fabric of the item in the future”. Email from the Heritage Officer appears in ANNEXURE 20 (page 2).”

63. In addition, the Mayers want plants in the Teiwes’ front setback kept at least 300 mm clear of the front fence and one metre clear of service wires. At the rear they want plants kept off their garage wall.

64. It seems reasonable that the Court includes an order for the Teiwes to prevent any new tree growing within one metre of the common boundary. I have considered other vegetation (for example T6 and T8) above and will make no further orders to restrict vegetation on the Teiwes’ property.

Paving in the applicants’ courtyard

65. The Mayers wrote at question 4 of Form H (in Exhibit A):

“When the Applicants purchased their terrace the pavers were level and they were able to enjoy the amenity provided by their courtyard (yes, 2006 photo in Ex B). Tree roots have been lifting pavers in different locations in the Applicants’ courtyard. This has created a serious trip hazard and has resulted in the Applicants losing the amenity provided by their courtyard.”

66. The Mayers informed the Teiwes that the Teiwes’ trees were damaging their pavers in 2011. The Teiwes acknowledged that tree roots caused damage and agreed to share the cost of rectification works, before their negotiations reached an impasse.

67. The Mayers took root samples collected from beneath their pavers to the Botanic Gardens of Sydney’s Plant Clinic for DNA analysis. The clinic was unable to confirm the species. The Mayers want to organise any rectification works to their pavers, but now want the Teiwes to pay the full cost. They want to reuse the existing bricks.

68. The Teiwes’ alternative orders proposed sharing the cost of paving rectification 50/50 between the parties, but they also proposed sharing equally the cost of all tree works.

69. The sweetgum’s roots displaced the Mayers’ paving to some extent before the Teiwes were aware of the issue. The Teiwes have been agreeable to removing the sweetgum since the Mayers first suggested this, although the parties could not agree on all details around its removal. In the meantime, the tree caused further damage to the pavers, which might have been prevented had the parties reached full agreement. The Mayers’ paving has been in place for many years and I cannot be sure that the Teiwes’ trees are the only cause of its current condition. Rectification works are likely to result in paving that is better than might otherwise have been, regardless of the trees. The Mayers have explained the need to replace their terracotta sewer pipe (see below). Although the method for those works has not been explained, it seems likely to me that those works will require the removal and reinstatement of some paving. This might explain why that section of sewer pipe was not replaced when the section of terracotta pipe beyond the paving, to the north, was replaced with PVC pipe. For these reasons, the organising of any rectification works to paving, and the cost of those works, will be left to the Mayers.

Rear dividing fence

70. The parties shared the cost of replacing the fence in 2008, other than the cost of the lattice on top of the fence, which the Mayers installed at their expense.

71. The trees, particularly the sweetgum (T1) but also the umbrella tree (T2), have displaced sections of the fence.

72. The Mayers submitted that they want to organise and pay for any fencing works, with the Teiwes to reimburse them for the amount of the cheapest quote for the works.

73. The Teiwes submitted that any fencing works should allow for the growth of the umbrella tree’s root crown.

74. Only the Teiwes’ trees have caused damage to the dividing fence, so they will be responsible for organising and paying for rectification of the fence. I see no reason for the Mayers to take responsibility for those works. Orders will be made for the Teiwes to engage and pay for a fencing contractor to repair or replace damaged sections of the fence.

Front dividing fence

75. The Mayers want the picket fence in the front setback replaced, for which they obtained a quote of $3,500.

76. I found no damage caused to the front fence by the Teiwes’ trees (see above at [47]) so no orders are made for this element of the application.

Sewer and other plumbing costs

77. The Mayers set out at question 14 of Form H (in Exhibit A) the various occasions they have engaged a plumber to clear their sewer from 2019 to 2025. In their original application they sought $5,747 compensation for the cost of those works.

78. The Mayers wrote at question 4 of Form H (in Exhibit A)

“The Applicants experienced 16 incidents of blocked sewer pipes since 2 November 2011 through to 13 August 2025, all of which were cleared with high-pressure water jet-blasting. Tree roots were identified as the cause of the problems on most of the invoices and CCTV footage obtained during works.

…

On 25 January 2024 the Applicants found their ground floor toilet and hand basin drain blocked. Nano’s Plumbing removed the toilet pan to access the sewer pipe but was unable to find the obstruction. Advanced Locating Services was called to locate the blockage with CCTV. Feeder roots were found blocking the PVC sewer pipe. The location of the obstruction was marked on the courtyard pavers. Invoices and photos appear in ANNEXURE 10. On 27 January 2024 Nanos Plumbing carefully excavated a section of the Applicants' courtyard, removed the feeder roots causing the obstruction, replaced a section of PVC pipe, supplied and installed a new toilet suite.

…

In 2021, a large diameter root was observed close to the sewer inspection box that was lifting the pavers. The Applicants showed this root to the Respondent on 9 December 2021. On 27 January 2024, during the excavation works to locate the blockage in the sewer pipe as explained above for D1, D2 and D3, this root was observed to have feeder roots. On 5 March 2024 this same root had reached a diameter of 47.82mm. Photos appear in ANNEXURE 11.”

79. Ms Stoll De Mayer stated at par 11 of her affidavit (Exhibit B) (with my emphasis in bold):

“We urgently need to replace the sewer line that runs under our paved side courtyard. Considering the age of the earthenware sewer pipes, we are not asking the Court to make an order to recover the replacement costs of this section of the sewer line, even though the Respondents' tree roots have been the cause of the blockages.”

80. On the day of the hearing, the Mayers sought an additional order to those set out in the application:

“That the Respondents pay 50% of the cost of replacing the Applicant's vitreous clay sewer line under the Applicants' brick paved side courtyard, including the kitchen gully. The Applicants to obtain three quotes from suitably licenced and insured contractors selecting the middle priced one to determine the amount to be reimbursed by the Respondents. That the Applicants select a suitably licenced and insured contractor of their choice, and to be reimbursed promptly by the Respondents on presentation of proof of payment.”

81. They also sought additional compensation ($1,157.97) for clearing another sewer blockage. They submitted that another sewer blockage occurred after they filed their application and evidence. In support of the additional order and additional compensation, the Mayers presented additional evidence, including an invoice and a report from Good Hands Plumbing and Drains, who carried out the works. The report is copied here:

“19/02/2026

Sewer Inspection Report - 67 Cavendish Street, Stanmore

Following our recent attendance on site, we have completed an inspection and drain clearing attempt. Please see our detailed findings and recommendations below.

Initial Findings

Extensive root ingress was identified within a section of vitreous clay sewer pipe approximately 15 metres in length.

The branch drain servicing the gully was blocked.

The branch drain servicing the laundry room was blocked.

It took approximately 120 minutes to clear the accessible section of sewer using high-pressure water jetting equipment.

We were unable to clear the branch drains due to limited access.

Approximately 90% of the joints within the vitreous clay sewer line showed some level of root ingress.

Current Condition Report

The vitreous clay section of sewer is in poor condition.

There is extensive root ingress of varying severity across approximately 90% of visible joints.

In three separate locations, root growth was so dense that we were unable to cut through the clusters using available equipment.

Branch drains have not been fully assessed due to access limitations.

PVC sections of the drainage system were inspected and show no signs of root ingress.

If you have any questions about the above findings or would like to discuss the recommended works in more detail, please don't hesitate to get in touch. We're always happy to talk you through it and help you decide on the best next steps.

Ryan Wilson

Good Hands Plumbing & Drains”

82. The information in the report is information that was available to the Mayers had they organised the inspection prior to making their application. The Mayers were already fully aware that the section of sewer pipe extending from their dwelling out toward the garden, beneath the paving, is old terracotta pipe until it connects to PVC pipe further north. The Mayers were already fully aware that the terracotta sewer pipe was in poor condition, as it has repeatedly suffered root ingress for many years. They were already aware that it needed urgent replacement (see above at [79]). Despite this, the Mayers explicitly stated in their application that they did not seek compensation for the cost of replacing the old terracotta pipe (see above at [79]). The Good Hands sewer inspection report found that the old terracotta pipe is in poor condition, while PVC pipe elsewhere is in good condition.

83. The condition of the Mayers’ sewer pipe, and the need to replace it, have not come about during the period since they commenced these proceedings. Had the Teiwes removed the sweetgum (T1) and umbrella tree (T2) earlier, roots of other vegetation may still have entered the old terracotta pipe, both historically and more recently. It seems the Mayers need to replace the remaining section of terracotta pipe regardless of the trees, so no order will be made for compensation of sewer work costs, either past or future.

Cost of clearing vegetation

84. The Court cannot be satisfied that vegetation described as T6 caused damage, or is likely to cause damage, although it might be a nuisance to the Mayers: see above at [38].

Costs

85. The Mayers seek an order to recover costs associated with making their application. Commissioners of the Court lack the power to make an order for costs, so they would need to file a Notice of Motion with the Court if they wish to pursue that. I note that it was the Mayers who chose not to proceed with the draft DoA.

Other matters

86. The parties raised numerous matters during submissions. Above, I have considered all those that are relevant to this decision; those that were not relevant are not included here.

87. The apportionment of costs in the orders below should not result in any great deviation from the apportionment that the draft DoA would have delivered to the parties. However, the orders obviate the need for parties to swap quotes and seek reimbursement from each other. The Teiwes will be responsible for the tree works and fencing works. Pursuant to s 6(3) of the Trees Act, they will not require Council’s consent for tree works ordered below. The Mayers will be responsible for remediation works to their own property should they wish to undertake them. Because no compensation is being ordered, the Mayers’ remediation works can be organised as suits them best and they require no Court orders, other than an order allowing them to cut any tree roots they encounter. Tree roots will be from any of T1, which is being removed, or T2 or T7, neither of which would be adversely impacted by root pruning beneath the Mayers’ paved area.

88. The Teiwes’ property already has a substantial amount of canopy cover. No order will be made for replacement planting.

Orders

89. The Court orders:

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

91. The respondents are to engage and pay for a suitably qualified (minimum AQF level 3) and insured arborist to carry out the following works within 30 days of the date of these orders:

(a) Remove the sweetgum (Liquidambar styraciflua) (T1) and grind out its stump; (b) Prune the umbrella tree (Heptapleurum actinophyllum) (T2) to:

(i) remove the low branch that grows against the dividing fence, (ii) reduce the tree’s crown size by ~20% of its live crown mass, including a reduction in its height, and (iii) remove any dead branches greater than 25 mm in diameter above the applicants’ property.

3. The works in Order (2) must be done in accordance with Australian Standard 4373:2007 ‘Pruning of amenity trees’ and the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.
4. The respondents are to engage a suitably experienced fencing contractor to carry out the following fencing works to the dividing fence shared by the parties within 60 days of the date of these orders:

(a) Repair or replace the panels of timber paling fence damaged by the sweetgum (T1) and umbrella tree (T2) so that the fence is straight and upright, matches the condition of the remainder of the timber paling fence, and is of a sufficient standard for a dividing fence. (b) Adjust the fence to provide at least 100 mm of clearance between the root crown of the umbrella tree (T2) and all parts of the fence. (c) Replace sections of lattice atop of the dividing fence where they are missing or damaged as a result of branch failure.

5. The respondents are to give the applicants 7 days notice of the works in Orders (2) and (4).
6. On 7 days notice from the respondents, the applicants are to allow access to their property during reasonable hours of the day for the works in Orders (2) and (4).
7. The respondents are to prevent any new tree growing within 1 metre of the common boundary shared with the applicants.
8. If the applicants undertake remediation works to their sewer or paving within 2 years of the date of these orders, they may cut and remove any tree roots they encounter during those works.
9. The exhibits are returned, other than Exhibit A.

D Galwey

Acting Commissioner of the Court

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