Cases cited: Allied Pastoral Case [1983] 1 NSWLR 1

Blackshaw & Evans v Campbell [2016] ACAT 80

Gales Holdings Pty Limited v Tweed Shire Council [2011] NSWSC 1128

Richmond City Council v Scantelbury (1988) 68 LGRA 49

Robson v Leischke [2008] NSWLEC 152

Young v Wheeler and Anor (1987) Aust Torts Reports 80 -126

Date of Reasons for Decision: 16 September 2016

1. Within 28 days, the respondent remove all of the nine (9) evergreen trees growing on the respondent's property located on or adjacent to the boundary between the respondent's property and the applicants' property as depicted on a survey sketch dated 13 May 2014 prepared by Peter Mayberry, registered surveyor.
2. The respondent must give the applicants three (3) days' advice by email of the intended commencement of the work referred to in order 1.
3. The applicants and the respondent must ensure that any contractors, their servants and agents who are engaged by the respondent to remove the trees referred to in order 1 have access to their respective properties at any time between Monday and Friday inclusive between the hours of 8am and 5pm for the purpose of removing the trees.
4. All amounts payable for removal of the trees in accordance with order 1 are to be paid by the respondent.
5. In the event that the respondent does not remove the trees within 28 days in accordance with order 1, the applicants may engage contractors to remove the trees at a cost not exceeding $10,000.
6. If order 5 applies and the applicants engage contractors to remove the trees, the applicants and the respondent must ensure that those contractors, their servants and agents have access to their respective properties at any time between Monday and Friday inclusive between the hours of 8am and 5pm for the purpose of removing the trees.
7. If order 5 applies and contractors remove the trees under contract with the applicants, the respondent must pay the applicants the amount stated on the contractors' tax invoice or invoices as payable for the work done within 28 days of the applicants giving the respondent a copy of the invoice or invoices.

1. This application concerns a dispute between neighbours arising from nine cypress trees planted on the respondent's land close to the common boundary between the applicants' and respondent's respective properties. The trees are approximately 20 years old[1] and have grown to approximately 10 metres in height.[2] The trees have the potential to grow to between 20 and 30 metres in height.[3]
2. A survey plan[4] shows that the centres of the trunks of the trees are between 18cm and 67cm from the boundary with the applicants' land. The trunks have an average diameter of 30cm.
3. By application dated 30 November 2015, the applicants brought a claim in common law nuisance against the respondent, relying on six grounds as detailed below which involve encroachment onto their land, overshadowing and actual or imminent property damage. By way of remedy, they seek an order that the respondent remove the trees. They do not seek an award of damages.
4. The application was initially listed for hearing on 18 April 2016. At the request of the respondent, the hearing was relisted to occur on 16 May 2016. On the morning of the hearing, again at the request of the respondent, the hearing was again adjourned, this time to 24 June 2016.
5. On 22 June 2016, the respondent filed an the application for the hearing to be vacated; for the matter to be set down "no earlier than two months" hence and for the respondent to be given additional time to submit evidence. The Tribunal granted the application and adjourned the matter again.
6. By letter dated 8 July 2016, the Tribunal advised the parties that the matter had been relisted for hearing on 4 August 2016.
7. On 1 August 2016, the respondent again applied for orders that the hearing of the applicants' application again be vacated; that it be fixed for hearing "no earlier than 8 weeks from the date of the hearing of this [interim] application"; and that the respondent be given additional time to submit her evidence. In this regard, the respondent relied on a medical certificate in which a doctor stated that the respondent "is unfit to resume her usual duties and any court hearings and attendances until 22 August 2016."
8. On 3 August 2016, I heard and dismissed the respondent's application for the adjournment. I gave oral reasons for my decision, which I do not repeat or summarise here.
9. The respondent did not appeal or apply for a stay of my order dismissing the respondent's application for the further adjournment, and the hearing proceeded on 4 August 2016. The applicants appeared in person. Mr Kozaric, solicitor, appeared for the respondent.

Applicable principles concerning the law of nuisance

1. In Robson v Leischke[5] Preston CJ of the NSW Land and Environment Court summarised the principles concerning a claim in common law nuisance arising from the encroachment of branches and roots from trees on a neighbour's land.
2. At paragraphs 44 and 45, his Honour observed that the tort of nuisance involves fault of some kind or another and that fault generally requires proof that the damage from the nuisance was reasonably foreseeable. Liability in nuisance is not a strict liability.
3. His Honour observed that the type of fault required will vary depending on whether the defendant created the nuisance or adopted and continued the nuisance. In this case, the cypress trees were already planted when the respondent purchased her property. She did not 'create' the nuisance: the trees spread and grew naturally.
4. Regarding adoption and continuance of a nuisance, an occupier of land continues a nuisance or a potential nuisance if, with actual or constructive knowledge of its existence, he or she fails, within a reasonable period of time, to take reasonable measures to bring it to an end.[6]
5. Regarding duty to rectify a nuisance, an occupier of land who knows or ought to know of a nuisance, and the possibility of damage occurring as a consequence must take such positive action as a reasonable person in the person's position would consider necessary to eliminate the nuisance.[7]
6. Regarding liability, the occupier of land will be liable if, when the nuisance arose, the defendant did not take any reasonable means to bring it to an end when he or she became aware, or ought to have been aware, of the existence of the nuisance and damage results.[8]
7. At paragraph 54, his Honour expanded on the general principles concerning a claim in private nuisance.

54 Private nuisance involves balancing, on one hand, the right of one owner or occupier of land to do what he or she likes on their land with, on the other hand, a right of a neighbour not to have his or her use or enjoyment of their property interfered with: Sedleigh-Denfield v O'Callaghan [1940] UKHL 2; [1940] AC 880 at 903. The tipping point in the balance is where the consequences of the use by the first person of his or her land unduly interferes, in ways recognised by the law as constituting a nuisance, with the use and enjoyment by the neighbour of his or her property. Three kinds of interference are recognised by the law as constituting a nuisance:

(a) causing encroachment on the neighbour's land, short of trespass;

(b) causing physical damage to the neighbour's land or any building, works or vegetation on it; and

(c) unduly interfering with a neighbour in the comfortable and convenient enjoyment of his or her land ...

1. Concerning the first kind of nuisance, mere encroachment of branches, roots or trees onto a neighbour's land is not sufficient to complete a cause of action: damage must be suffered as a result of the encroachment.[9]
2. However, if there is proof of apprehended damage, a remedy by way of an injunction (meaning an order that a person act to remove the threat before the damage occurs) can be made. [10]
3. Examples of cases where encroaching roots have caused an actionable nuisance include where the roots have:
   • (a) caused shrinkage of the soil, undermined the foundations of a house and/or causing cracking or subsidence of the buildings on the neighbour's land;
   • (b) damaged storm water and sewerage drains;
   • (c) damaged a neighbour's lawn and patio and interfered with their enjoyment of their land; and
   • (d) caused substantial interference with a neighbour's gardening operations.[11]
4. Nuisances of the second kind arise where there is not an encroachment but the consequences of an occupier's use of his or her land cause damage on the neighbour's land. For example, an occupier has been held liable where he or she allowed a drain on his land to become blocked or made a concrete paved drive so that water overflowed onto his neighbour's land. In relation to trees, it may involve an occupier, on whose land a tree grows, taking action which adversely affects the tree so that it, or parts of it, fall onto the neighbour's land.[12] That kind of nuisance does not arise in this case.
5. Nuisances of the third kind arise where an occupier uses his or her land in a way that results in an unreasonable interference with the neighbour's enjoyment of his or her land, having regard to the ordinary usages of humankind living in a particular society. In determining whether there has been such an unreasonable interference, a balance must be maintained between the right of the occupier to do what he or she likes with his or her own land and the right of the neighbour not to be interfered with. Nuisances of this third kind will usually arise from something emanating from the defendant's land such as noise, vibrations, dust, sediment from soil erosion, smells or smoke.[13]
6. In Gales Holdings Pty Limited v Tweed Shire Council[14] the Supreme Court of NSW, per Bergin CJ in Equity, commented on this third kind of nuisance as follows:

Nuisance is the unreasonable interference with the use and enjoyment of a person's land ... The determination of whether there has been "unreasonable interference" is by the application of an objective test - whether a person of ordinary habits and sensibilities in the plaintiff's position and circumstance would regard the interference with the enjoyment of the land as unreasonable. It is necessary to decide whether there has been "an inconvenience materially interfering with the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions" of the community. ... These include the notion of "reasonable give and take".

1. The applicants relies on six areas of concern arising from the cypress trees:
   • (a) The trees are preventing construction of a new boundary fence.
   • (b) The tree roots are causing damage to the applicants' stormwater drains.
   • (c) The tree roots are blocking the drains causing plumbing and other costs on the applicants' land.
   • (d) The trees are damaging the applicants' house by causing rising damp and have the potential to damage the sewerage pipes and the foundations of the house.
   • (e) The trees are encroaching onto the applicants' land in a way that is adversely impacting upon their use and enjoyment of their land.
   • (f) The trees are having an adverse impact on the applicants' solar access.
2. I will deal with the claims in turn, but first observe that this case highlights the complexity, uncertainty, and seeming inadequacies in the law of nuisance when dealing with disputes between neighbours arising from trees. It is not a new concern. In Young v Wheeler & Anor[15] Wood J of the NSW Supreme Court said:

The law in this field of neighbourly relations remains in some uncertainty and may merit the attention of law reform. In particular there may be utility in a simple procedure for resolution of such disputes, and for the recovery of the reasonable costs of abatement where the purpose is to remove a real threat of actual damage to property.

1. Wood J's observations led the NSW Parliament to enact the Trees (Disputes Between Neighbours) Act 2006 (NSW), the origins and operation of which are discussed in Robson v Leischke.[16] That Act provides an accessible, simple and objective means by which disputes of this kind can be determined. I respectfully enquire whether consideration has been given to passing similar legislation in the ACT.

1. The applicants contend that trees numbered 4 to 9 on the survey plan prepared by Mail McDonald Barnsley need to be removed in order to construct a new boundary fence. They also rely on advice from the Conservator of Flora and Fauna (the Conservator) that trees 1 - 3 and 5 - 9 do not require approval for the removal and the Conservator's decision dated 24 December 2014 giving approval for the felling and removal of tree 4, being a 'regulated tree' for the purposes of the Tree Protection Act 2005.
2. The respondent does not take issue with the evidence, but submits that I should not make any finding about whether any tree needs to be removed in order to construct the new boundary fence because that issue has already been heard and determined in Blackshaw & Evans v Campbell.[17]
3. I disagree. In my view, that the tribunal has already ordered removal of some trees to facilitate construction of the boundary fence in accordance with the Common Boundaries Act 1981 does not preclude the applicants from contending, or the tribunal determining, that the trees should also be removed on the ground of nuisance.
4. The difficulty is that the applicants did not explain why the need to remove some or all of the trees in order to build the boundary fence gives rise to a claim in nuisance. In my view, the lack of a boundary fence in good order, or the need to build one, does not convert to any of the three kinds of actionable nuisance identified in Robson v Leischke. The absence of a boundary fence or a fence in good order is not causing an encroachment onto the applicants' land, it is not causing any damage on the applicants' land and (in my view) is not an unreasonable interference with the applicants' use and enjoyment of their land. To the extent that a boundary fence provides privacy between neighbours to enhance mutual use and enjoyment of their respective properties, and neighbours are therefore entitled to have a boundary fence, the trees are providing privacy.
5. For these reasons, in my view the applicants' claim in nuisance arising from the trees preventing construction of a boundary fence must fail.

1. The applicants contend that roots from the trees have invaded the stormwater pipes on their land. They contend that because the pipes were blocked, stormwater could not escape. They contend that the stormwater therefore bubbled out of the stormwater vents and manholes, flooded onto the applicants' land and seeped into the concrete slab upon which the applicants' house is built.
2. The applicants are concerned that the periodic flooding is jeopardising the structural integrity of their home. They rely on photographs of stormwater pooling on their land.[18]
3. They rely on emails from Mr Mulville from Territory and Municipal Services (TAMS) confirming TAMS' attendance on five occasions in 2010, 2012, 2014 and 2016 to attend to blocked pipes. They rely on Mr Mulville's advice that the "stormwater main was partially blocked from tree root intrusion", that "the origin of these roots is unknown but are in close proximity to the location of the trees on the boundary of your property" and that "the smaller 100mm branch line that your residence feeds into the main is not able to be cleaned and cleared from roots."[19]
4. The applicants also contend that the trees should never have been planted adjacent to the boundary in the first place. The trees are planted alongside the stormwater pipes on the applicants' land and on top of the sewage pipes on the respondent's land.[20] The applicants rely on a publication from TAMS, which states that trees and large shrubs should not be planted near water and sewer pipes.[21]
5. The applicants are also concerned that the tree roots from the cypress trees, having already broken into the stormwater pipes, may break into the sewer pipes which are laid under the applicants' home. The applicants noted that the home is built on a concrete slab and that there is potentially very significant and costly damage if these pipes were to break or block or if the roots were to cause structural cracking or lifting of the foundations. The applicants referred to the location of the sewer line,[22] and that the trees are planted almost directly on top of the line.
6. The applicants also rely upon a report dated 6 September 2014 from Alan Ewer of Ewer Constructions who states:

It is very noticeable on site the damp proof course "DPC" level that is trying to prevent rising damp up the bagged concrete wall

... the rising damp is caused by the surrounding ground and the fact that it does not dry out properly.

After recently inspecting the site, I surmise that the cause of this dampness is twofold.

Firstly the evergreen pines form a thick wall of foliage that completely shades the area. ...

The tree roots from the pines have penetrated the pipes and caused blockages. These blockages back up and leak on and into the surrounding ground and foundations of my client's home.

On two occasions ACTEW has been to clear the lines. My clients have also had private companies to site to electric eel the stormwater line.

In one storm the pressure backed up so much in the pipe that it caused the manhole cover to lift off and the backyard to be completely flooded.

1. In reply, the respondent relied on a report from Mr Stephenson from Capital Locating Service and CCTV footage from a 'crawlercam' inspection of the 225 mm concrete TAMS stormwater main from the manhole on the driveway verge of the applicants' property to the manhole at the rear of their property conducted on or around June 2016.[23] Mr Stephenson reports that the CCTV footage showed the line to be "in very good condition considering its age." His report and the CCTV footage is equivocal about tree root invasion into the branch lines on the applicants' land leading to the main.
2. Mr Kozaric also relied on a report dated 3 February 2016 from Mr Broadhurst of Canberra Building Inspections who commented on other 'possible reasons' for why blockages and water could have bubbled up from the stormwater vents onto the applicants' land, for example builder's rubble that had fallen into the pipes. Mr Broadhurst also stated that during his inspection he did not observe any mould or damp inside or outside the applicants' house.
3. Mr Kozaric submitted that there is no evidence that roots in the stormwater pipes are (or were) tree roots, and that even if they are tree roots there is no evidence of the trees from which these roots come. Mr Kozaric submitted that the roots could be from the trees on the street, and that it is 'speculation' that the roots are from the cypress trees 1 - 2 metres away from the stormwater pipes.
4. Mr Kozaric also submitted that I should place little weight on the advice set out in the email from Mr Mulville stating that the stormwater branch line is not able to be cleaned and cleared from roots because the origin of his information is unknown. He made a similar submission regarding the statements of fact in the report from Mr Ewer, contending there is no indication of the source of the information in his report.
5. At hearing, Mr Kozaric advised the tribunal he had no objection to the tender of Mr Mulville's email or Me Ewer's report. There was no request for either author to be available for questioning in relation to their evidence or generally. In my view, having taken that course, the respondent cannot after the event challenge the reliability of the unambiguous statements of fact made by Mr Mulville and Mr Ewer.[24] It is procedurally unfair. Both authors should have been given the opportunity to answer this concern if it is later to be raised. In any event, the source of the information is reasonably clear. Mr Mulville is a project officer from TAMS and was commenting on work done by TAMS. Mr Ewer explains in his report that his opinions regarding the cause of the damage are drawn from him 'inspecting the site'.
6. Having regard to the whole of the evidence, I am satisfied on the balance of probabilities that tree roots have on many occasions over the past six years invaded and blocked the stormwater main, although I accept that there is no evidence that roots are presently in the main or the extent of any present root invasion. The CCTV footage suggests the main is presently clear, although the applicants rely on the footage as showing where the roots were entering the drains before they were cleared out.
7. I accept also that there is no proof that the roots, previously or presently, are from the cypress trees. However I find on the balance of probabilities that the roots are from those trees. It is wholly improbable that the roots are from the street trees, which I estimate to be approximately 15 metres from the stormwater main where there are numerous cypress trees planted parallel and adjacent to the main.[25]
8. The respondent, as I understand it, accepts that the applicants have the right to abate the encroachment of the tree roots by continuing to clear them from their land including the stormwater main and branch lines on their land. The question is whether that is the limit of their rights and remedy.
9. Relying on Robson v Leischke[26] at [56], mere encroachment is insufficient to complete a cause of action for nuisance; damage must be suffered as a result of the encroachment to obtain remedies of damages or an injunction.
10. In Robson v Leischke at paragraph 77, the Court commented on a neighbour's liability in nuisance for physical damage to a neighbour's land as follows:

If the defendant did not create the nuisance (such as by planting the tree or carrying out works to or around the tree) he could still be liable if he adopted or continued the nuisance. If the defendant as occupier of the land in which the tree grew, knew or ought to have known of the unsuitability of the tree, such as because of the kind of tree or its location or condition or health or other reason, and the possibility of damage occurring in consequence is a real risk, the defendant would be under a duty to take such positive action as a reasonable person, in his position and circumstances, would consider necessary to eliminate the nuisance. The defendant would be liable for nuisance if he fails to do so and the tree causes damage.

1. It was plainly foreseeable that roots from the cypress trees planted adjacent to the common boundary would cross onto the applicants' land. The repeated root invasion over many years and the applicants' communication of the problem to the respondent in different ways satisfy me that the respondent knew that roots in all probability from the cypress trees were encroaching onto the applicants' land and that she did not take reasonable action to prevent either the encroachment or the damage. I am therefore satisfied that the first kind of nuisance is proved.
2. In this case, the applicants do not seek monetary compensation for the damage. They seek an injunction, meaning removal of the trees in order to address the apprehended further damage to their property.
3. The question therefore is what positive action is reasonably necessary to eliminate the nuisance. To require the respondent to remove the trees, or periodically to clear roots from the stormwater main and the applicants' drains or to construct an effective root guard to prevent roots from encroaching onto the applicants' land, are all possible actions. What action is necessary or appropriate is a question of balance.
4. In Robson v Leischke at [58], the Court noted:

The degree of probability of future damage required has been said to be "a real appreciable probability of the repairable damage"... However, it has also been noted that "the degree of probability of future injury is not an absolute standard: what is to be aimed at is justice between parties, having regard to all the circumstances".

1. I have considered the significance and seriousness of the root invasion; the actual and potential damage that the applicants face; the likelihood and imminence of that damage; the degree of inconvenience and cost if the drains were to be cleared from time to time as part of ongoing maintenance; the likelihood that the respondent would take responsibility for such maintenance; the impracticality of an effective root guard in circumstances where the tree trunks are so close to the boundary; the environmental significance of the trees; and the value of the trees to the respondent.
2. I have concluded on balance that it is appropriate to order removal of the trees. Whilst I accept that blockage of the stormwater pipes has not occurred for approximately 18 months and that the rising damp that Mr Ewer observed in 2014 was not present when Mr Broadhurst observed the applicants' house in 2016, I am still satisfied that root encroachment is an ongoing and serious issue. Resultant flooding has caused property damage and may do so again. There is a risk that roots may also invade the sewer pipes. The delegate to the Conservator noted that the cypress trees in issue "have an extensive root system and are opportunistic when it comes to clay or concrete pipes. If there's a crack or dislodgment of the service, roots will intrude into the pipe work regularly."[27]
3. I am not persuaded that the applicants should be obliged to address this issue as an ongoing maintenance issue on their own property, nor am I persuaded that the respondent would carry out that task on the applicants' behalf particularly where (perhaps as an oddity of the law of nuisance) she is not obliged to pay for that cost.[28]
4. Also, there does not appear to be any alternative long-term practical solution such as a root guard on the respondent's land because there is no space between the tree trunks and the boundary to install the guard, either at all or in a manner that would not cause loss of all the root structure on the southern side of each trunk.
5. I have also taken into account the minimal if any environmental value of the trees, noting that the trees are recognised under the Tree Protection Act 2005 as a 'problematic tree species'.
6. I recognise that the respondent values the trees for the privacy and shade they offer her among other things, but she enjoys those benefits entirely at the applicants' cost.
7. For these reasons, I am satisfied that tree roots from the respondent's cypress trees have repeatedly caused damage on the applicants' land, and are likely to cause further significant damage. In circumstances where there is no sensible and practicable alternative for addressing the ongoing problem of root encroachment, the trees should be removed.

1. This ground of complaint appears to duplicate the previous ground, save that the applicants contended that a plumber charged them $335 to attempt to clear the 'pipe' and quoted $2,500 to carry out an excavation of the pipe. They also rely on their increased heating bills to address loss of solar passive heating and future increased costs.
2. I am not persuaded that this ground adds in any material way to the previous ground. Despite references to a 'plumber's quote', I was not provided with a copy of the quote, nor any evidence (for example electricity or gas bills) to evidence increased heating costs. It would also be difficult to attribute increased heating costs to the cypress trees, as opposed (for example) to increases in the cost of heating.

1. The applicants contended that the trees are causing and or are highly likely to cause significant structural damage to their home. This, they said, is occurring in two ways.
2. First, they refer to significant problems with rising damp caused by the surrounding ground that it is never able to dry out. They rely on Mr Ewer's report in which he explains that there are two causes of this rising damp: the trees' foliage and the trees' roots causing blocked drains and consequent stormwater flooding. Mr Ewer's observations regarding stormwater flooding are set out above. Regarding the trees themselves, Mr Ewer states in his report:

the evergreen pines form a thick wall of foliage that completely shades the area. This "foliage wall" is eight metres high, and for an estimated eight months of the year sun cannot penetrate the ground or the wall. Even in summer it is filtered light at its best.

1. The applicants also rely on the extensive overhanging, and that branches could fall on their car or their children who walk down the driveway every day. They noted the trees are presently approximately 10m high, and could grow to twice that height which will increase the size of the overhanging and the consequent danger. They observed that the existing height is already too high to enable them to trim the trees. They refer to hard nuts from the trees that fall on their car and other material that gets under the rubber seals on their car.
2. In the case of actual damage, the applicants referred to the rising damp and damage to their car. I have already addressed the rising damp in response to ground 2. I did not receive evidence of damage to the applicants' car, and in any event it was described as minimal. I would not have regarded it as justification for removal of the trees: only compensation for the damage (if the loss were proved) which is not sought.
3. In the case of potential damage, I am not persuaded that the risks to the foundations of the applicants' house arising from root damage are 'imminent or very likely to occur in the near future'. Rather, it is a concern. I accept that it is real, and must be addressed but it is not imminent. The applicants might with justification question why that should make any practical difference, but I am obliged to apply the law as it is not what others might think it should be.
4. I'm also not persuaded that shading of the applicants' land from the trees constitutes damage. It is a prevention of solar access, which I deal with response to the fifth and sixth grounds.
5. For these reasons, I am not persuaded that the claim from property damage advances the applicants' case.

1. The Tribunal in Blackshaw & Evans v Campbell conducted a view of the property on 24 June 2016. The Senior Member took five photographs of the trees which show that the trees overhang the applicants' property to a large degree varying, in my estimation, between 2 and 3m. These photographs were accepted into evidence in this proceeding without objection.[29] Viewed in conjunction with other photographs accepted into evidence,[30] I am satisfied that the trees overhang the applicants' property much more than they cover land on the respondent's property.
2. There is no dispute that the trees encroach upon the applicants' land. The applicants are entitled to abate the encroachment by trimming the trees to the boundary. That is not a practical option where the centre of the trunks of the trees are between 18cm and 67cm from the boundary.[31] To trim the trees to the boundary would almost certainly render the trees highly unstable and perhaps kill them.
3. An issue is whether encroachment from the trees is so substantial as to establish a claim nuisance of the third kind, so that the respondent is legally responsible for rectifying the encroachment.
4. In support of the claim that the encroachment is actionable, the applicants refer to the serious and significant manner in which the trees encroach on their land. They refer to dangerous branches overhanging their land where they would otherwise park their car and where they walk. They refer to the tree roots which prevent the applicants from completing paving works on their driveway. They refer to hard nuts that would land on their car if it were parked under the tree branches. They refer to trees 1 - 3 that overhang the roofline of their house.
5. They refer to the significant overshadowing of their house and garden caused by the trees along most of the northern boundary. It was difficult to determine what portion of the overshadowing is caused by the height of the trees as opposed to the encroachment of branches onto the applicants' land. However, as a matter of logic, the overhanging branches must contribute to at least some overshadowing particularly when the sun is overhead or primarily in the east or west.
6. Mr Kozaric, on behalf of the respondent, did not suggest that the encroachment was acceptable in the sense of being within the bounds of 'reasonable give and take' between neighbours. Implicitly he agreed that the encroachment needed to be addressed, and sought an order that the respondent be able to access the applicants' property to trim the trees both as to their height and to address the encroachment of the branches onto the applicants' property. This, he said, was the preferable approach. He submitted that the respondent wants to trim the trees and "that has been denied".
7. In support of his submission, Mr Kozaric relied on an email from the respondent to the applicants sent on 15 February 2016 stating "please let me know when we can trim the trees and have access to your property" ' and Ms Evans' reply sent to the respondent on 17 February 2016 in which she stated:

Thank you for your offer to trim the trees, however there are a range of issues that may not be resolved by simply trimming the trees, the most obvious being the construction of a new fence on the correct boundary. Based on the advice we have received, we believe the best long-term solution is for the trees to be removed rather than trimmed. We understand you do not agree. Given this, the most effective and fair course of action to resolve this issue is a determination from an independent arbiter.[32]

1. Mr Kozaric also relied on his email to the applicants sent on 27 July 2016, nine days before the hearing, stating that "Our client is against seeking permission for her tree surgeon to access your property to trim the trees. In that regard, we note that it is [in] neither party's interest to keep the trees untamed."
2. I also took into account the respondent's offer of compromise dated 11 May 2016, in which the respondent proposed that she and the applicants seek advice from a tree surgeon (at a cost shared equally) to advise on how to reduce the height of the trees without damaging them.
3. Mr Kozaric also relied on a statutory declaration from a tenant in the respondent's property, Mr Freeburner, who stated that on 2 August 2016 the applicant, Ms Evans, said to him words to the effect that she was not going to let them trim the trees and they are going to be taken out. Ms Evans gave oral evidence on oath denying that she made any such statement.
4. I am not persuaded that the applicants did anything to impede the respondent from trimming the trees, at least when this was a practical option. It is illogical that they would do so, where they built their extensions to create a solar passive home with reliance on the respondent's promise to manage and trim the trees. The respondent says she stopped trimming the trees from September 2011 because the applicants wanted the height reduced to 2.5m.[33]
5. Ms Evans' email of February 2016 does not establish any resistance to trimming the trees. To the contrary, it does no more than put forward her opinion that to trim the trees was no longer an appropriate solution and her willingness to refer the issue to an independent arbiter.
6. I regard any exchange or words between Mr Freeburner and Ms Evans on 2 August 2016 as irrelevant. By that time, any exchange of words could have no bearing on the substantive question of whether the trees can or should be trimmed, rather than removed.
7. For several reasons I am satisfied that the trees should be removed, rather than trimmed and pruned to reduce their height and to remove their encroachment onto the applicants' land.
8. First, the cypress trees should never have been planted along the boundary between the applicants' and respondent's land. They have become very large trees and will continue to grow to a height of approximately 20m. They have been planted in a sewer easement on the respondent's land, and close to a stormwater easement on the applicants' land.[34]
9. Second, the trees are unsuited for the applicants' and respondent's comparatively small blocks, both of which are little more than 500m2. In his decision dated 24 December 2014,[35] the delegate of the Conservator gave approval for removal of tree 4 on the basis that "the location of the tree is inappropriate given its potential size and growth habit." The delegate also refused approval for major pruning or lopping because the criteria for that approval had not been satisfied. In other words, the only option is removal.
10. Third, trees 5- 9 are listed in Schedule 2 to the Tree Protection (Approval Criteria) Determination 2006 (No 2) as 'problematic tree species for the purposes of criterion 1(2) of the Determination. Criterion 1(2) of the Determination permits the Conservator to give approval for removal of a tree listed in Schedule 2, including a regulated tree, 'if the tree is located on a block of less than or equal to 1200m2'. The applicants' and respondent's blocks are less than half that size.[36]. In an email sent on 9 May 2016, the delegate of the Conservator explained that trees listed in Schedule 2 'are generally approved for removal as they have detrimental effects on energy, building structural integrity, solar access and services interference.'[37]
11. Fourth, the applicants are entitled to trim the trees to their boundary, but that is not a practicable option. The trees have been planted so close to the boundary that to trim to the boundary them would leave nothing but the bare trunks, and would not resolve the ongoing problems with root invasion. In his email sent on 9 May 2016, the delegate of the Conservator said "generally residents are permitted to trim trees to the boundary however in this case it would not be wise as the cuts would be major and could cause irreversible damage to the trees." In his report dated 23 June and 8 July 2016 prepared for the respondent, Stephen Griffiths, per Treeworks (ACT/NSW) Pty Ltd, states that to trim the trees to that extent would kill them. Mr Griffiths notes that the canopy would need to be 2.5m from the trunk, but that would only be possible if the applicants consented to continuing encroachment of the trees onto their land because the centres of the trunks of all nine trees are between 18cm and 67cm from the boundary.[38]
12. Fifth, if trimming the trees was to be done, it would need to be done gradually over time. In an email sent to the respondent on 29 July 2016, a delegate of the Conservator commented on pruning options, noting that the trees' susceptibility to dieback would mean that the 10% method' should be used meaning successive pruning events limited to 10% of the tree to facilitate recovery. Where the trees are approximately 10m high, trimming or pruning to more appropriate heights and scales would take many years. Mr Griffiths noted that the first trim would need to be 'conservative'. He stated that the trees will be able to be trimmed to 1/3 of their height 'eventually'. Meanwhile, the numerous problems with root encroachment would continue.
13. I have concluded that the encroachment of the trees' branches is an unreasonable interference with the applicants' enjoyment of their land and that removal of the trees is the only practicable option to address that interference.

1. The applicants contended that they designed and built extensions and alterations to their house at a cost of $154,000 based on solar passive principles. They contended that the design was contingent on the cypress trees on the respondent's property being trimmed and managed, and that the respondent agreed to do so when the applicants chose to proceed with the renovations.
2. The applicants contended that because the trees were not trimmed and managed, they have reached a height that now blocks the applicants from receiving any solar access to their northern windows. They maintain that their garden is now mostly in shade and that they cannot enjoy winter sun even on their verandah. They contended this loss of solar access has significantly reduced the value of their property.
3. In support of their claims, the applicants relied on solar access diagrams depicting overshadowing to the northern sides of their house and most of their garden. These diagrams were admitted without objection.[39]
4. The applicants also rely on a report dated 29 April 2014 from Mr Lowe, who is the architect that designed the alterations and additions to the applicants' premises. Mr Lowe notes that the residence was designed using passive solar principles and that, although threatened by the potential of the neighbour's vegetation to the north, "the neighbour agreed on 23 October 2005 to keep the tree-hedge on boundary trimmed to allow solar access to Robyn and Adam's block."[40] Mr Lowe's report was admitted without objection, and the respondent did not request he be available to answer questions.
5. The applicants also rely on a report from Mr Rabey, a real estate agent, admitted without objection, who stated:

It is very difficult to estimate what effect the overshadowing may have a a (sic) final sale price for the home but in my mind it could amount to up to 10% less

What is clear that from a livability (sic) perspective the loss of the northern sun will add substantially to your power bills especially as you have lost the sun to your solar efficient rear extension.[41]

1. The respondent relies on a report from Mr Stan Bevanda, architect, who stated that it would be 'unreasonable' for the applicants to insist on removal of the trees on the neighbouring block because they were preventing the applicants from receiving good winter sunlight. Mr Bevanda contended that the respondent "cannot be held responsible for the problems of the design and the issues taken into account at the time the additions were designed." Also, the respondent denied any agreement to trim the trees. Mr Kozaric submitted that even if there was an agreement it was not enforceable.
2. The respondent also relied on a report from Mr Edward Streatfeild who stated that "there is no approval requirement for the planned new trees all for removal of existing trees should they cause overshadowing."[42]
3. Referenced to the law of nuisance, the issue turns upon whether the interference with the applicants' solar access arises from encroachment of the trees onto the applicants' land, as opposed to the mere existence of the trees on the respondent's land. Where trees do not encroach, I accept Mr Bevanda's opinion that a neighbour does not have a right to good winter sunlight with reliance on the law of nuisance. In Robson v Leischke [43], the Court said:

The use of land by the defendant, which does not cause something to emanate from the defendant's land, although it nevertheless in some way interferes with the use and enjoyment by the plaintiff of his or her land, will rarely constitute an actionable nuisance. Thus, a defendant may erect a building or other structure such as a fence, or plant a tree on his or her land which interferes with the neighbour's enjoyment of their land. The building, structure or tree may:

(b) in the absence of an easement, restrict the flow of air onto the neighbour's land ...; or

(c) in the absence of an easement, take away light from the neighbour's windows...

yet such interferences are not actionable as a nuisance...

1. In this case, there is not sufficient evidence for me to determine whether obstruction of winter sunlight arises primarily from the height of the trees on the respondent's land or the encroachment of the trees onto the applicants' land. To the extent it is the former, no action in nuisance would lie because the height is not causing anything to 'emanate' from the respondent's land. If the latter, it becomes an additional factor in favour of an order that the trees be removed because removal or trimming of the branches back to the boundary is not a practicable option. Where I have already concluded that for reasons of root and branch encroachment the trees should be removed, it becomes unnecessary for me to determine the extent to which the encroaching branches are also impeding the applicants' access to winter sunlight.

1. For these reasons, I am satisfied that the applicants have established their claim in nuisance and that the only practicable option to remedy the nuisance is to remove the trees. Accordingly, I make orders to that effect.

[1] Exhibit A11, report dated 8 July 2016 from Mr Griffiths of Treeworks (ACT/NSW) Pty Ltd prepared for the respondent

[2] Exhibit A8, email dated 9 May 2016 from a delegate of the Conservator of Flora and Fauna

[3] Exhibit A8, email dated 9 May 2016 from a delegate of the Conservator of Flora and Fauna

[4] Survey certificate dated 13 May 2014 prepared by Mail McDonald Barnsley and attached sketch

[5] [2008] NSWLEC 152

[6] Robson v Leischke at [49]; Richmond City Council v Scantelbury (1988) 68 LGRA 49 at 53

[7] Robson v Leischke at [51]; Richmond City Council v Scantelbury (1988) 68 LGRA 49 at 56

[9] Robson v Leischke at [55] - [56]

[12] Robson v Leischke at [67] - [83]

[13] Robson v Leischke at [84] - [86]

[14] [2011] NSWSC 1128 at [295]

[15] (1987) Aust Torts Reports 80-126

[16] Robson v Leischke at [107] - [219]

[17] [2016] ACAT 80

[18] Exhibit A7, photograph of flooding taken by applicant of ground drain

[20] Exhibit A1, Email from Mr Mulville, TAMS, 6 May 2014, attached stormwater and sewerage plan

[21] Exhibit A14 building requirement document from ICON Water

[22] Exhibit A1, civil dispute application with attachment of an email dated 6 May 2014 from Mr Mulville and attached plan showing location of sewer line

[24] Allied Pastoral Case [1983] 1 NSWLR 1 at 23

[25] Exhibit A1, attached stormwater plans

[28] Young v Wheeler (1987) Aust Torts Reports 80-126 at 68, 970

[34] Exhibit A1, email dated 6 May 2014 from Mr Mulville, TAMS

[38] Exhibit A1, survey sketch done by Mail McDonald Barnsley