A recent decision from the NSW Land and Environment Court (Phillips v Peters [2025] NSWLEC 1887) offers critical lessons for homeowners involved in, or contemplating, a tree dispute with a neighbour. The case underscores the legal thresholds that must be met under the Trees (Disputes Between Neighbours) Act 2006 and highlights the importance of evidence and timing.
The Case in a Nutshell
In Lockhart NSW (west of Wagga Wagga), Mr Phillips applied to the Court seeking orders against his neighbour, Mr Peters, for:
The removal of four trees on Mr Peters’ property.
Compensation for alleged damage to his shed’s concrete slab.
Repairs and replacement of sections of the dividing fence.
After an onsite hearing, Acting Commissioner Galwey refused both the application for tree removal and the claim for compensation. The only order made was to allow Mr Peters access to carry out minor repairs to the fence.
Key Legal Principles Reinforced
The judgment reinforces several core principles of the Trees Act that every property owner should understand:
The Damage Must Occur During Your Ownership: A pivotal finding was that the applicant purchased the property with the shed and fence already in a poor state. The Court applied the precedent in Liang v Marsh, noting that compensation is only considered for damage that occurs during the applicant’s ownership. If the property’s condition was reflected in the purchase price, the new owner generally cannot claim for it later. The Court found the shed’s damaged slab was largely due to its age and construction quality, with any contribution from tree roots being minimal since purchase.
You Must Prove the Tree is Likely to Cause Damage or Injury: For the Court to intervene, the applicant must prove that a tree has caused, is causing, or is likely in the near future to cause damage to their property, or is likely to cause injury. Merely claiming a tree is a potential “weed” or a future risk is insufficient without solid evidence.
For the lemon-scented gum alleged to be a public risk, the Court found the likelihood of a falling branch injuring someone on the infrequently used laneway was too low to warrant an order.
For the Norfolk Island hibiscus alleged to be damaging the fence, the Court’s inspection found no evidence that the tree was pushing on or had damaged the fence.
The Court Considers All Circumstances: Before making orders, the Court must consider factors under Section 12 of the Act, including the trees’ benefits (amenity, shade), the neighbours’ land use, and both parties’ financial circumstances. Here, the Court noted neither party could easily afford a full fence replacement, influencing the decision to order only minor, owner-conducted repairs.
Practical Takeaways for Homeowners
Inspect Before You Buy: This case is a stark reminder of caveat emptor (buyer beware). If you don’t inspect a property yourself, you assume the risk of existing issues, including tree-related damage. A pre-purchase inspection should specifically look for such problems.
Focus on Evidence, Not Belief: Strong feelings about a tree are not enough. You need arborist reports, photos, repair quotes, and clear evidence linking the tree to recent damage or a near-future risk. In this case, the lack of exposed roots under the shed slab weakened the claim significantly.
Attempt Mediation First: The Court must be satisfied you made a reasonable effort to reach an agreement. The applicant here had attempted mediation through the Community Justice Centres, which satisfied this requirement even though it was unsuccessful.
Fence Disputes are Complex: While the Trees Act can address fence damage caused by trees, the Court will look at the overall context. It won’t automatically order a brand-new fence, especially if the existing one is functional and the damaged state existed when you bought the property. The Court favoured a practical, low-cost solution for repairs.
The Outcome
The final orders were:
Refused the removal of the four trees.
Refused compensation for the shed.
Granted the respondent (Mr Peters) access to the applicant’s property to perform minor repairs to the specific fence sections damaged by his previously fallen trees, provided he gives 7 days’ notice and completes the work within three months.
Conclusion: This decision highlights that the Court’s role is not to eliminate all tree-related risks or remedy pre-existing property conditions, but to resolve disputes where there is clear, recent, and likely ongoing interference. Seeking professional legal advice early, coupled with expert arborist evidence, is crucial before commencing proceedings under the Trees Act.
Disclaimer: This blog post is a summary of a court case for general information purposes only. It does not constitute legal advice. You should seek independent legal advice for your specific situation.
