It is well established law that an owner of land can be liable for damage caused by trees located on that owner’s land when the roots of those trees encroach upon the land of neighbouring properties. This is referred to in legal terms as a “nuisance”.  A person can take action through the courts to obtain damages, or even an injunction, against the owner of the land on which the offending trees are located if the encroaching tree roots amounts to an unreasonable interference  with the use and enjoyment of that person’s land.

But what if those trees are located on public land which is under the control of the local council and interfere with the use of a private owner’s land? Our firm recently acted for a Club faced with that issue when the local council refused to remove a number of trees on council property, the roots of which had caused damage to the Club’s car park and prevented the Club from upgrading the car park.

In a recent decision in the case of Michos v. Council of the City of Botany the NSW Supreme Court held that a council was liable in nuisance and in negligence for damage to private land caused by tree roots on council owned land. Damages were awarded to the owners of the private land against the council. The Court also granted a mandatory injunction requiring the Council to take steps to prevent the ongoing nuisance caused by the tree roots.

In the Club’s situation referred to above, following representations made by our firm based on the decision made by the NSW Supreme Court in the Michos case, the local council agreed to reverse its original decision and removed the offending trees, thereby allowing the Club to proceed with the upgrading of its car park.

For more information concerning the law relating to nuisance contact Chris Sydes on c.sydes@pigott.com.au 

This article is intended to provide general information in summary form on a legal topic, current at the time of publication.  The contents do not constitute legal advice and should not be relied on as such. Formal legal advice should be sought in specific circumstances.