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NSW: Who Pays for Damage Caused by a Neighbour’s Tree Roots?

Scott Driscoll
NSW@2x

Question: Who is responsible for paying to repair the damaged wall caused by the neighbour’s tree roots?

I am the building manager of A1 Apartments. A huge tree’s roots have damaged the brick wall on the property next door, B1 Apartments. There is a threat of the roots lifting the driveway into A1 Apartments’ rubbish room and causing cracking in the room’s floor and walls.

Our strata manager contacted B1’s strata manager. They seem reluctant to do anything about this tree. The Council looked at the tree and trimmed a few branches. The tree is solid. However, with all the rain, there is a threat of the tree falling, which will cause monumental damage and the possibility of hurting or killing someone.

Who pays for the wall to be fixed? The neighbour’s tree is causing the damage. We are the only ones concerned.

Answer: This is a liability issue, and therefore, it is not possible to determine who could ultimately be responsible. This is the job of a judge.

The short answers here are:

  1. If the wall is on the property boundary and it requires repairs/replacement (or becomes in need of repairs/replacement) then it is the shared responsibility of the two (or more) adjacent properties.

  2. The tree is wholly within the boundary of B1, then while it stands, it is also the responsibility of B1.

The longer answer with some provisos:

  1. If the wall is on the property boundary and requires repairs/replacement (or becomes in need of repairs/replacement) then it is the shared responsibility of the two (or more) adjacent properties.

  2. If the tree is wholly within the boundary of B1, while it stands, it is also the responsibility of B1.
    1. Trees are protected in NSW – Trees (Disputes Between Neighbours) Act 2006 No 1,

    2. Trees are defined as – tree: includes any woody perennial plant, any plant resembling a tree in form and size, and any other plant prescribed by the regulations.

    3. The Local Council are the ‘Authority’ for the maintenance and removal of the tree, although applications can be made to the NSW Court for orders.

  3. Accepted process
    1. Discuss with neighbours the concerns over the tree

    2. Apply to Council to have the tree removed – please note: if the tree is healthy (and not a menace) then such an order will not be given

    3. Council will decide on the application. If you still disagree, you can apply to the court.

  4. Who pays for what?
    1. While the tree stands,
      1. All maintenance belongs to/with the owner.

      2. Neighbours (with permission / agreement) can trim (at their cost) branches that overhang

      3. If the tree roots are causing issues with your property, you must ensure this is in the council application so the damage is considered part of that application.

    2. If the tree falls, “which will cause monumental damage and the possibility of hurting or killing someone”.
      This is a liability issue, and therefore, it is not possible to determine who could ultimately be responsible. This is the job of a judge. However, in the first instance, you would lodge a claim under your insurance policy
      • The fence/wall would be subject to an insurance claim. If it is a dividing fence, the costs would be split 50:50 between the two neighbours (or proportionally between all neighbours).

      • Any other damage would be responded to by the insurer on the bases of
        The fallen tree (or parts thereof) now belongs to the property on which it lands. The cleanup of the tree and all damage caused to your property will be fixed by your insurer, and the insurer will consider any recovery possible.

This post appears in the April 2025 edition of The NSW Strata Magazine.

Scott Driscoll Driscoll Strata Consulting E: scott@driscollstrataconsulting.com.au P: 0409 632 003

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