Court orders the Hunter’s
Hill Council to remove a camphor laurel street tree
Large tree roots from an old
camphor laurel tree on the
street outside a house in Futuna
Street, Hunters Hill were
causing damage. The tree roots
had lifted flagstones on the
front path, had caused the front
fence to bow and lift, and had
made the front gate impossible
The owner, Dr Donnelly complained to the Hunter’s Hill
Council and asked for the tree to be removed. Initially,
Council agreed to remove the tree, but after it notified the
neighbours and received 21 requests for the tree to remain,
Council reversed its position. It decided that the tree was
in good health and should be retained.
The Council considered that the interference caused by
the camphor laurel roots was trivial and aesthetic only, and
that the principles of give and take, and live and let live
in a community were more important than the damage to the
fence and the path.
The positions of the house owner and the Council became
entrenched and so the dispute was adjudicated by the
District Court of NSW (Dicker SC DCJ). The decision is
Donnelly v Hunter’s Hill Council  NSWDC 76 (1
Findings in relation to the
The Court relied upon the expert evidence of the
arborists engaged by the parties to make these findings:
- The tree is a mature camphor laurel specimen about
90 to 100 years old;
- The life expectancy of the tree is likely to be
about 15 years;
- The tree is growing on Council’s land – the footpath
– very close to the palisade fence at the front of the
- The tree is of good health but of reduced vigour
with some dieback in the crown area of the tree;
- The tree has multiple trunks from around 1m above
ground and multiple branches from 3m above ground
following severe past reduction pruning;
- The tree is of high landscape significance in the
streetscape and immediate surrounds due substantially to
its canopy dimensions and shade;
- If the tree was to be removed the loss of the tree
would be partially offset by adjacent large trees,
including two large trees on the owner’s property;
- The damage caused by the tree roots includes:
- lifting and tilting of the sandstone entrance
gate pier causing the metal support rail from the
pier to be deformed;
- displacement and bowing of the sandstone block
base of the fence;
- lifting the entire fence opposite the tree; and
- lifting the internal sandstone flagstones on the
path to the house.
- Further growth of the tree roots will likely
continue to damage the fence and any replacement
structure due to the apparent vigour of the tree;
- The roots were within the structural root zone as
described in Australian Standard AS4970;
- The certain way of removing further damage from the
tree roots is to remove the camphor laurel tree.
Installation of a root barrier was not a viable option.
Other facts and findings
The house is a substantial sandstone house constructed in
1889. The owner purchased it in 1980.
In 1989, the Hunters Hill Council approved the
construction of a wrought iron fence with sandstone base
(the Palisade fence) designed to heritage specifications.
The fence was built at a cost of about $100,000 and has
stood for about 30 years.
The owner acted promptly to pursue their claim since
November 2017 when a builder pointed out the damage.
Two tripping incidents have occurred on the sandstone
path; the front gate no longer closes properly due to
movement in the pier and is secured by a chain and padlock;
and the fence has continued to bow and lift due to a large
root (25cm in diameter) pushing against the base of the
The tort of private
Tree disputes between neighbours are governed by the
Trees (Disputes between Neighbours) Act 2006 (NSW). The
Tree Act codifies the common law tort of private nuisance
and provides a simple, inexpensive and accessible process
for resolving neighbour disputes about trees.
However, the Tree Act does not apply to trees
owned or managed by a Local Council (s 4(2)(a)), and so it
did not apply to the camphor laurel which was growing on the
footpath in Futuna Street.
Therefore the owner brought a claim in the tort of
private nuisance seeking orders for the removal of the tree
and damages against Hunter’s Hill Council, the owner of the
The Court found that the Council had committed the tort
of private nuisance:
- It is well established that encroaching roots from a
neighbour’s tree is an actionable nuisance. The fact
that the tree is located in a ‘leafy garden suburb’ will
not preclude a claim based on significant physical
- In this case the damage was material and substantial
– the uneven path, the entrance gate no longer closing
properly and the bowing and lifting of the front fence.
It was not a minor or trifling interference with the
owners’ enjoyment of the land.
- Council was aware that the fence would be
constructed when it gave approval in 1989 and must be
taken to have been aware of the damage caused by the
tree roots by the visible damage to the road, kerb and
footpath. The damage was brought to its attention by the
owner in November 2017, yet Council has failed to take
reasonable steps to bring the nuisance to an end.
- The damage by the encroaching tree roots is
reasonably foreseeable and there is a real risk of
further significant damage.
The Court orders
The Court indicated it will make these orders:
- An award of damages be made to the owner as follows:
- For the cost of repairing the fence, gate and
path - $28,765.33.
- For two expert reports pre-litigation - $1,715.
- For interference with and loss of enjoyment of
the land - $5,000.
- The tree be removed within four months (at Council’s
cost). In exercising its discretion to grant injunctive
relief, the Court considered and rejected Council’s
arguments for retention of the tree, as follows:
- While expert opinion is divided upon whether the
tree can be saved, it is important to obtain some
finality and certainty in litigation instead of
engaging in further investigation;
- While it is may be possible to modify the fence
and the gate to retain the tree, the suggested
change will give rise to further dispute;
- The tree has only about a 15 year life
expectancy – it is not like a tree with a 50 year
likely life where options to save it might be
- To retain the tree “does seem to place the tree
and its roots above the plaintiff’s private rights
to seek to avoid further unreasonable physical
damage to his property”;
- “While community assets and amenity are
important, the plaintiff’s property rights must be
balanced in the relief granted.”
- The Council pay the owner’s legal costs of the
As can be seen from the photographs the author has taken
(below), there is a compelling case for the removal of the
tree. The Council agreed, until the local residents opposed
Only owners with deep pockets can afford to challenge a
Council if the Council refuses to remove a tree growing on a
footpath or nature strip on a street, or on a reserve or
park that Council owns or manages, where tree roots are
causing damage to their property.
The author estimates that in this case, each of the Owner
and Council has incurred about $120,000 in legal costs, for
a five day court hearing, including the expert witnesses.
The owner was successful in this case and so will recover
the greater part of their legal costs from the Council.
The legal costs are high because many Councils will argue
strongly for retention of trees for aesthetic and
streetscape value, even if the tree is undesirable. In this
case, the Hunter’s Hill Council strongly argued for the
retention of a camphor laurel (Cinnamomum camphora) which is
gazetted as a noxious weed under the Noxious Weeds Act
1993 (NSW) by the State Government.
Photographs taken 5 April 2020