Who Is Responsible When a Tree Falls on a Neighbour’s Property in NSW?

A tree from next door comes down during a storm and lands on your roof. Or a branch from your tree falls across the fence and damages your neighbour’s shed. Who is legally responsible? Who pays?

These are among the most commonly misunderstood questions in residential property law in NSW. The popular assumption is simple: the tree belongs to whoever owns the land it grows on, so that person is responsible for any damage it causes. But the law is considerably more nuanced than this.

This article explains how tree liability works between neighbours in NSW — including the key legislation, what ‘negligence’ actually means in this context, and the practical steps to take when you’re dealing with a tree dispute.

If your situation also involves an insurance question, see our companion article: Does home insurance cover tree removal in Sydney?

 

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The Legal Framework in NSW

Two bodies of law are relevant when trees cause damage between neighbours in NSW:

• The Trees (Disputes Between Neighbours) Act 2006 (NSW) — This Act gives the NSW Land and Environment Court jurisdiction to hear disputes between neighbours about trees, including applications for tree removal or trimming, and claims for compensation for damage caused by trees.
• General negligence law — Under established common law principles, a property owner may be liable in negligence for damage caused by a tree on their property if they knew (or reasonably should have known) that the tree posed a risk, and failed to take reasonable steps to address that risk.

The interaction between these two frameworks — and the specific facts of each situation — is what makes tree liability between neighbours in NSW complex.

⚖️  Key Principle:  In NSW, tree ownership alone does not automatically make you liable for damage your tree causes to a neighbour. Liability generally turns on negligence — whether you knew of a risk and failed to act reasonably.

The Critical Role of Negligence

This is the concept most people get wrong. The common assumption is: ‘It’s your tree, it’s your problem.’ But NSW courts have consistently held that property owners are not automatically liable simply because a tree they own caused damage.

For negligence to be established, the affected party generally needs to show:

1. The tree owner owed a duty of care — this is generally accepted as existing between neighbouring property owners
2. The tree owner knew, or reasonably should have known, that the tree posed a risk of damage — this is the crucial element
3. The tree owner failed to take reasonable steps to address that risk
4. That failure caused the damage in question

This means that if a perfectly healthy tree falls during an exceptional storm event, with no prior indication of any structural problem, the tree owner may not be liable — because there was no reasonably foreseeable risk they should have acted on.

Conversely, if a tree was visibly dead, diseased, or structurally compromised — and the owner had been warned about this risk, either by a professional arborist or in writing by the neighbour — and the tree then fell and caused damage, the liability picture changes significantly.

⚠️  Important: If you are aware that a tree on your property is dead, diseased, leaning dangerously, or has been flagged as a risk by an arborist — and you fail to act — you may be found negligent if it causes damage to a neighbour’s property. The cost of inaction can far exceed the cost of professional tree maintenance.

The Role of Written Notice

One of the most practically significant aspects of the Trees (Disputes Between Neighbours) Act 2006 and general negligence principles is the effect of written notice. If you write to your neighbour formally stating that their tree poses a risk to your property — and they fail to act — this notice significantly strengthens any future negligence claim.

Similarly, if your neighbour has written to you about a tree on your property and you have ignored that notice, this will be directly relevant to whether you were aware of the risk — and therefore whether you acted reasonably.

Written notice should:

• Clearly identify the specific tree(s) of concern
• Describe the observed risk (dead branches, obvious lean, disease visible, structural damage, etc.)
• Request specific action (professional inspection, pruning, removal)
• Be sent by a method that creates a record — email with read receipt, or post with proof of delivery

✉️  Practical Step:  If you have a tree on your property that a neighbour is concerned about, or vice versa, getting a professional arborist assessment and acting on the advice creates a documented record of responsible behaviour that can protect you legally.

Scenario-by-Scenario Breakdown

Scenario	Likely Liability Position	Why
Healthy neighbour’s tree falls on your property during a severe storm	Neighbour likely NOT liable	No foreseeable risk if tree was healthy; storm is an extraordinary event
Dead or visibly diseased neighbour’s tree falls on your property	Neighbour MAY BE liable	If neighbour knew or should have known of the risk and failed to act — negligence potential
Neighbour’s tree falls after you gave written notice of a risk	Neighbour more likely LIABLE	Written notice establishes that they had actual knowledge of the risk
Your tree falls on neighbour’s fence — tree was healthy	You likely NOT liable	No negligence if tree was healthy and risk not reasonably foreseeable
Your tree falls on neighbour’s fence — you’d had arborist warning	You likely LIABLE	You had professional knowledge of risk and failed to act
Overhanging branches fall and cause minor damage	Depends on knowledge of risk	Neighbour can trim back to the boundary at their cost; claim depends on negligence
Tree roots damage neighbour’s driveway, pipes or foundations	Disputed — seek legal advice	Gradual damage claims are complex; governed by Encroachment Act and negligence principles

Note: This table reflects general legal principles only. Every case turns on its specific facts. Seek legal advice for any actual dispute.

The Trees (Disputes Between Neighbours) Act 2006 (NSW)

This Act provides a specific legal pathway for neighbours to resolve tree disputes without necessarily going to court. Key points about the Act:

• It applies to trees on adjoining private land — not trees on public land (those are the council’s responsibility)
• It allows an affected neighbour to apply to the NSW Land and Environment Court for orders about a tree, including removal, pruning, or compensation for past damage
• The Court must weigh multiple factors including the tree’s contribution to the environment, its amenity value, privacy considerations, and whether the risk is foreseeable
• Applications under the Act are separate from insurance claims — they deal with legal rights and responsibilities between neighbours directly
• Before applying to the Court, parties are generally expected to have made a genuine attempt to resolve the matter directly with the tree owner

 

📋  Land & Environment Court:  The NSW Land and Environment Court has a specific Trees (Disputes Between Neighbours) jurisdiction that provides an accessible pathway for resolving tree disputes. Application forms and guidance are available through the Court’s website.

What to Do When a Neighbour’s Tree Causes Damage

If a tree from a neighbouring property falls on or damages your property, here is a practical sequence to follow:

5. Ensure safety first — do not approach the tree if it is in contact with power lines, structural damage is unclear, or any part of the tree appears unstable. Call emergency services if required.
6. Document everything — photograph and video the fallen tree, the damage caused, the origin of the tree (to confirm which property it came from), and the general condition of the tree if visible.
7. Contact your own insurer first — your home insurance policy may cover the damage to your property regardless of who owns the tree. Your insurer can then pursue recovery from the neighbour if appropriate.
8. Communicate with your neighbour — calmly and in writing. Document the damage and request they take steps to address the situation. Many disputes are resolved at this stage without legal action.
9. Get a professional arborist assessment — Sydney Tree Company’s qualified arborists can assess the condition of the tree, identify whether defects were pre-existing, and provide a professional report that may be useful if the matter proceeds to an insurer or a legal dispute.
10. Seek legal advice if needed — if the matter cannot be resolved amicably and the damage is significant, consult a NSW solicitor. They can advise on your options under both negligence law and the Trees Act.

 

⚠️  Important: Avoid taking matters into your own hands. You cannot remove a tree that is on your neighbour’s property without their permission, even if it overhangs or poses a risk to your property — unless you have a court order. Doing so may expose you to a claim for damage or interference with the neighbour’s property.

What to Do When Your Tree Falls on Your Neighbour’s Property

If your tree falls and damages a neighbour’s property, the same principles apply — but from the other direction:

11. Communicate with your neighbour promptly and calmly. Acknowledge the situation and ask what damage has been caused.
12. Contact your own home insurer — your home and contents insurance may provide third-party property liability cover that responds to damage you’ve caused to a neighbour’s property. Check your PDS.
13. Do not immediately accept liability — the question of whether you are legally responsible depends on the negligence analysis described above. Accepting liability prematurely may complicate your insurer’s handling of the matter.
14. Arrange professional removal — get the tree removed promptly by a qualified arborist. Sydney Tree Company provides fast, professional service across all Sydney suburbs and can attend urgently when a fallen tree is causing ongoing risk or access issues.
15. Keep records — document your communications, any professional arborist reports or inspections, and any steps you take to address the situation.

Council Trees and Public Land

It’s worth noting that if the tree causing damage originates on public land — a council nature strip, park, or roadway — the responsible party is the relevant local council, not a neighbouring property owner. Claims against councils for tree-related damage from public land are handled differently and typically involve negligence claims against the local government authority.

If you’re uncertain whether a tree is on public or private land, or what preservation orders apply to trees in your area, Sydney Tree Company can assist you in identifying the applicable council requirements and advise on the appropriate course of action.

🌿 Sydney’s Trusted Arborists Since 1999 Qualified, insured, and experienced across all Sydney suburbs. Whether you need urgent removal, a professional assessment, or help navigating council approvals — we’re here. →  Get Your Free Quote →

Frequently Asked Questions

My neighbour’s tree fell on my fence during a storm. Do they have to pay for repairs?

Not automatically. Your neighbour’s liability depends on whether they were negligent — meaning whether they knew or should have known the tree posed a risk and failed to act. If the tree was healthy and the storm was severe, they may not be liable. Your own home insurance (if your policy covers fences) is usually the most practical first port of call. See our article: Does home insurance cover tree removal in Sydney?

Can I cut branches from my neighbour’s tree that overhang my property?

Generally yes — you are entitled to trim branches that overhang your property boundary, back to the boundary line, at your own cost. You cannot go onto your neighbour’s property to do this without their permission. You should return the cut material to your neighbour and cannot simply dispose of it. For larger branches or significant pruning work, getting the neighbour’s agreement first is advisable.

I wrote to my neighbour about their dangerous tree and they ignored it. What can I do?

Keep a copy of all written communications. If the tree then causes damage, that notice significantly strengthens a negligence claim. You can also apply to the NSW Land and Environment Court under the Trees (Disputes Between Neighbours) Act 2006 for orders requiring tree work or removal, or for compensation for damage already caused.

How do I find out if a tree is covered by a council preservation order?

Each Sydney council maintains information about its tree preservation rules and which trees require a permit before removal or significant pruning. Sydney Tree Company’s preservation orders page links directly to the tree management information for every major Sydney council. You can also call your local council directly.

Does my home insurance cover me if my tree falls on a neighbour’s property?

Many standard home insurance policies include a liability section that may cover property damage caused to others — including damage from your tree. However, this depends on your specific policy and typically requires that you were negligent. If you were not negligent (the tree was healthy and the fall was due to an exceptional weather event), there may be no legal liability in the first place.

What is the Trees (Disputes Between Neighbours) Act 2006?

It is a NSW law that gives the NSW Land and Environment Court jurisdiction to hear disputes between neighbours about trees on adjoining private land. It allows affected parties to apply for orders about tree maintenance, removal, or compensation for damage — providing a formal legal pathway that doesn’t require ordinary civil litigation.