Bradshaw v Roberts

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to a ceramic pot – apprehension of further damage and injury – nuisance caused by debris from tree – both parties seek tree removal

Legislation Cited: Environmental Planning and Assessment Act 1979
NSW Climate Change (Net Zero Future) Act 2023, s 8
Trees (Disputes between Neighbours) Act 2006, Pt 2, ss 5, 7, 8, 9, 10, 12
Warringah Local Environment Plan 2011

Cases Cited: Barker v Kyriakides [2007] NSWLEC 292
Black v Johnson (No 2) [2007] NSWLEC 513
Gardiner v Bisley [2021] NSWLEC 1176
Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285
McPherson v Lake [2017] NSWLEC 1081
Reuben v Lace [2010] NSWLEC 1024
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Yang v Scerri *[*2007] NSWLEC 592
Yin v D’Hondt [2014] NSWLEC 1040

Texts Cited: AS 4373:2007, Pruning of amenity trees
Safe Work Australia, ‘Guide to managing risks of tree trimming and removal work’, 2016
Land and Environment Court of NSW, Practice Note Class 2 Tree Applications
M Hartley and J Chalk, A Review of Deaths in Australia from Accidental Tree Failures, 2019
Warringah Development Control Plan 2011

Category: Principal judgment

Parties: Justin Bradshaw (Applicant)
Oliver Clive Roberts (Respondent)

Representation: J Bradshaw (Self-represented) (Applicant)
O Roberts (Self-represented) (Respondent)

File Number(s): 24/451893

Publication restriction: Nil

Judgment

Background

1. COMMISSIONER: Justin Bradshaw (the applicant) and Oliver Clive Roberts (the respondent) share a side boundary between their neighbouring properties in Beacon Hill. Both properties were located on a fairly steep slope that ascended towards the south, with north facing dwellings positioned near the centre of the land parcels. A large Blackbutt (Eucalyptus pilularis) (the tree) was growing slightly west of centre on an elevated lawn covered terrace towards the back of Mr Roberts’ rear yard, which terminated at a cliff face.

2. The tree was about 20 metres (m) tall, with a fairly uniform canopy that spread approximately 16m. The tree’s trunk diameter at breast height was measured as 1.12m. Most of the main branches were distinctly ascending, as is typical of the species. In an arborist report (commissioned in December 2023 by Mrs Tobler, Mr Robert’s east side neighbour), Hugh Millington (an Australian Qualification Framework (AQF) level 5 arborist) noted the tree had ‘Good Health’ and ‘Good Structure’ and provided ‘Very High Amenity Value’.

3. After purchasing their property in 2016, the Bradshaw’s demolished the existing house and constructed a new three-storey dwelling on the sloping land. Relative to its predecessor, the new dwelling occupied a much larger footprint, which brought a bedroom and the roof’s southeastern corner under the tree’s canopy. The upper level of the Bradshaw’s dwelling had been designed to integrate with the existing backyard level, where an inground swimming pool was retained. The level of the paved pool surrounds was also similar to the surface level around Mr Roberts’ tree.

4. Before or upon occupying the new dwelling in 2019, Mr Bradshaw contracted arborists to prune branches near the pool back to the common boundary. Nonetheless, leaves and other debris which fell and blew onto the dwelling roof and gutters blocked mesh filters in a water tank in the dwelling’s lower level and two flooding incidents resulted.

5. In May 2020, a dead branch about 4.1m long fell and broke a ceramic pot near the common boundary in the Bradshaw's rear yard. Due to concern about further damage and risk of injury to his family and pets, Mr Bradshaw sought Mr Roberts’ support for a tree removal application to Northern Beaches Council (Council). Mr Bradshaw contended that surrounding neighbours supported the removal but would not contribute financially so the matter was set aside.

6. In September 2020, ostensibly in response to the ceramic pot breakage, Mr Bradshaw again pruned branches along the common boundary, but without Mr Roberts’ permission. Mr Bradshaw contended the debris from the tree caused damage to his pool cover, an unreasonable maintenance burden, and was a nuisance for his family.

7. Mr Bradshaw claimed that tree removal discussions resumed in late 2023 due to “increased concern from surrounding neighbours”. Mr Roberts said the initial approach came from Mr Tobler, his east side neighbour, notwithstanding the tree’s canopy did not appear to encroach on the Tobler’s property. Mr Roberts told Mr Tobler he had made an unsuccessful tree removal application in 1996. Based on “that experience, the present healthy condition of the tree, and my subsequent detailed reading of Council’s stipulated conditions for permissible true removal”, Mr Roberts advised Mr Tobler, he would “be surprised if an arborist could find defects in the tree that would justify its removal”.

8. Nonetheless, to address the Tobler’s concerns, Mr Roberts offered to allow access to an arborist should the Tobler’s wish to commission one. Further, if the arborist report recommended removal of the tree, Mr Roberts offered to make a tree removal application to Council and pay Council’s application fee. Mr Roberts said he confirmed these conditions in an email to Mrs Tobler soon after the conversation with Mr Tobler and before she commissioned an arborist.

9. Mr Millington’s arborist report (the arborist report) for Mrs Tobler recommended regular maintenance works rather than removal. Nonetheless, Mr Bradshaw “believed it worth submitting an application for removal to Council”. The applicant lodged a removal application with Council in June 2024, accompanied by a letter of support from Mr Roberts. On 1 July 2024, permission was refused for removal, but approval was granted for pruning 20% of live foliage in addition to removal of dead wood. Mr Bradshaw wanted to complete the approved tree pruning, then lodge an appeal with Council against the removal refusal.

10. Mr Bradshaw contacted Council seeking a review of the decision but was told that no internal Council review process was available. He was advised his options were to appeal the removal refusal decision to the NSW Land and Environment Court (LEC) within three months, or to submit a new tree removal application to Council, with a report from an AQF level 5 arborist recommending removal and explaining why alternatives to removal were not feasible.

11. On 5 August 2024, Mr Bradshaw emailed Mr Roberts, “reiterating concern over the unsuitable and dangerous tree” and suggested undertaking the Council approved pruning and appealing to the LEC. Mr Bradshaw also suggested engaging another AQF level 5 arborist to conduct an aerial inspection and Resistograph testing to assess included bark referenced by Mr Millington and submitting another removal application to Council with a new arborist report.

12. Mr Roberts did not reply to the email of 5 August 2024, nor another email of 9 August 2024. On 11 August 2024, Mr Roberts advised Mr Bradshaw that “he is of the opinion that Council’s decision concludes the matter and that he was not going to respond further”. However, Mr Roberts would “allow access to suitably qualified and insured arborist to prune the tree by 20%, at the applicant’s expense, subject to approval of which part of the tree is to be pruned”.

13. Mr Bradshaw noted sending five more emails with requests and proposals to Mr Roberts up to 30 August 2024, all with no reply.

14. Consequently, on 5 December 2024, Mr Bradshaw made an application, pursuant to s 7 of Pt 2 of the Trees (Disputes between Neighbours) Act 2006 (the Trees Act) proposing the Court make orders for removal of a Blackbutt tree located in the rear yard of a neighbouring property.

The jurisdictional framework for the decision

15. Mr Bradshaw’s complaints about the tree can be grouped into three issues: nuisance, damage and injury. In accordance with s 5 of the Trees Act, “no action may be brought in nuisance as a result of damage caused by a tree to which Part 2 applies … “

16. With respect to s 7, an owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land. Section 7 is satisfied by the facts of the case.

17. The Court’s ability to make orders is limited, at s 10 of the Trees Act.

10 Matters of which Court must be satisfied before making an order

(1) The Court must not make an order under this Part unless it is satisfied:

(a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, and

(b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 8.

(2) The Court must not make an order under this Part unless it is satisfied that the tree concerned:

(a) has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or

(b) is likely to cause injury to any person.

18. If the jurisdictional tests at s 10 of the Trees Act are satisfied, the Court can make orders such as those at s 9 to remedy, restrain or prevent damage to property, or to prevent injury to a person, as a consequence of the tree.

19. Before determining the nature of any orders made under this Part, the Court is to consider the following matters, set out at s 12 of the Trees Act:

(a) the location of the tree concerned in relation to the boundary of the land on which the tree is situated and any premises,

(b) whether interference with the tree would, in the absence of section 6 (3), require any consent or other authorisation under the Environmental Planning and Assessment Act 1979 or the Heritage Act 1977 and, if so, whether any such consent or authorisation has been obtained,

(b1) whether interference with the trees would, in the absence of section 25 (t) (Legislative exclusions) of the Native Vegetation Act 2003, require approval under that Act,

(b2) the impact any pruning (including the maintenance of the tree at a certain height, width or shape) would have on the tree,

(b3) any contribution of the tree to privacy, landscaping, garden design, heritage values or protection from the sun, wind, noise, smells or smoke or the amenity of the land on which it is situated,

(c) whether the tree has any historical, cultural, social or scientific value,

(d) any contribution of the tree to the local ecosystem and biodiversity,

(e) any contribution of the tree to the natural landscape and scenic value of the land on which it is situated or the locality concerned,

(f) the intrinsic value of the tree to public amenity,

(g) any impact of the tree on soil stability, the water table or other natural features of the land or locality concerned,

(h) if the applicant alleges that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property:

(i) anything, other than the tree, that has contributed, or is contributing, to any such damage or likelihood of damage, including any act or omission by the applicant and the impact of any trees owned by the applicant, and

(ii) any steps taken by the applicant or the owner of the land on which the tree is situated to prevent or rectify any such damage,

(i) if the applicant alleges that the tree concerned is likely to cause injury to any person:

(i) anything, other than the tree, that has contributed, or is contributing, to any such likelihood, including any act or omission by the applicant and the impact of any trees owned by the applicant, and

(ii) any steps taken by the applicant or the owner of the land on which the tree is situated to prevent any such injury,

(j) such other matters as the Court considers relevant in the circumstances of the case.

The onsite hearing

20. Both Mr Bradshaw and Mr Roberts were self-represented at the hearing, which was also attended by Mrs Bradshaw and Mr Roberts’ daughter. The tree and surrounds were inspected from both parties’ rear yards. Most of the respondent’s yard was enveloped by the tree’s canopy, as was a small part of the back of Mr Roberts’ dwelling roof. Branches also extended over part of the southeast corner of Mr Bradshaw’s dwelling and wispy ends of small branches encroached over the common boundary near the pool, where Mr Bradshaw had pruned overhanging branches, most recently in September 2020.

21. The arborist report included an aerial photograph (image) of the tree (from Google maps) that displayed the extent of encroachment over neighbouring properties and structures. While the canopy appeared to barely traverse Mr Roberts’ eastern boundary, it extended over two adjacent pools located on the northern edge of neighbours’ yards on the clifftop to the south. In the image, foliage extended about halfway across a portion of the pool on the eastern side and over the outer coping of the pool on the western side. Emails from these two neighbours in support of the removal application to Council, noted leaves and other debris falling or blowing in the pools and alleged risk of injury due to branches that fell into the pools. No evidence was submitted to substantiate the risk of injury claim, however.

22. Mr Bradshaw led the Court to the bedroom on the southeastern corner of the upper level of the dwelling, to view and discuss overhanging branches. As the applicant’s dwelling was taller and further upslope than the respondent’s, windows from this vantage also offered a view of the extent of canopy encroachment of the respondent’s dwelling roof and allowed assessment of branches that may impact the roof.

23. Mr Roberts noted past impact and minor roof denting from fallen dead branches but said the roof was relatively accessible for clearing of leaves and gutters as it was flat and solid. He also claimed dead branches had penetrated the roof of an adjacent shed.

The applicant’s case

24. Mr Bradshaw submitted that details in a chronology, copies of the parties’ correspondence, and offers to contribute to the cost of pruning and removal demonstrated his satisfaction of s 10(1)(a), to make a reasonable effort to reach agreement with the respondent. He claimed that notice of the application had been given in accordance with the Trees Act.

25. Mr Bradshaw provided various images as evidence of the broken pot and the branch that broke the pot in May 2020. A tape measure showed the branch was about 42 millimetres (mm) diameter at the branch collar, very tapered, and about 4.1m long. It appeared long dead. He submitted his affidavit as evidence that the tree is continuing to cause damage to his property.

26. In the affidavit of 13 February 2025, the applicant said the new dwelling was completed and occupied in or around 2018. He claimed “[r]ainwater tanks began overflowing almost immediately due to gum tree debris” entering the guttering system. He noted having pruned the tree along the boundary at his expense on two occasions, the first with permission of the respondent and the second without permission.

27. As to the likelihood of injury and future damage by the tree, Mr Bradshaw said “the tree regularly drops dead branches some with green foliage”.

28. A list comprising branch dropping incidents comprised the branch of 13 May 2020 that broke the pot, 7 November 2022 where a dead branch dropped onto the grass area, 13 February 2024 where a dead branch 1.8m long dropped onto the tiled pool area, and 16 March 2024 where a dead branch fell onto the same lawn as the branch that broke the pot. As a result, Mr Bradshaw said he avoided the eastern side of the yard due to the risk of injury, blocked off access to the eastern garden bed to minimise risk to the dogs and the family avoided sitting on the eastern side of the pool due to the risk of injury of falling branches.

29. Mr Bradshaw contended that “persistent and ongoing damage is sustained to the pool cover by small tree branches and twigs penetrating the surface” and “we cannot walk barefoot on the tiled pool area due to the presence of gum nuts”. He claimed the “rainwater tanks have twice overflowed due to the filters being unable to cope with the volume of the tree debris” and flooding of the basement, garage, entrance way, office, storeroom, and bathroom resulted, while the house was unattended. After discussions with builders and plumbers, such filter blockages were circumvented by removal of tank filters.

30. In consideration of reduced amenity and excessive maintenance caused by the tree, Mr Bradshaw claimed that the grass area required at least weekly raking to remove leaves, nuts, and flowers in spring and summer. When in use, the pool area and back deck required daily sweeping, and the pool cover required daily careful raking and scooping of leaves and fine tree debris to minimise spillage. Despite the pool cover, several cycles of the robotic cleaner were needed to deal with the volume of debris and each cycle required removal of the cleaner, the basket emptied, and the filter hosed out. As tree debris covered outdoor sofas and seating with leaves and other fine debris, each seat required sweeping before use. Consequently, Mr Bradshaw found “the outdoor area an unwelcome place to relax due to the mess and effort required to enjoy it”.

31. In the Applicant’s Submission, dated 10 February 2025, Mr Bradshaw said his initial pruning was upon or around his occupation in 2019. He referred to the arborist report regarding possible bark inclusions at the junctions of Stem 1 on the western side and Stem 2 on the eastern side of the tree. He referred to 7.5 and 7.6 of the arborist report, which noted, “the included bark is a characteristic that could become defective and is therefore assessed as having a possible likelihood of failure within the specified timeframe of three years”. He emphasised that a qualification for Stem 1, of “under extreme weather conditions”, was omitted for Stem 2. Mr Bradshaw thus claimed, “the expert evidence demonstrates that without any intervention, these flaws mean there is a possible likelihood of failure in the near future”. Mr Bradshaw suggested that formative maintenance should have been undertaken to correct co-dominant stems.

32. Mr Bradshaw said the arborist report noted failure of deadwood was probable, and deadwood greater than 30mm diameter was considered relevant to potential damage or injury. The areas around neighbouring pools were deemed to be likely target zones.

33. Considering ‘extreme weather conditions’, Mr Bradshaw noted the Bureau of Meteorology (BOM) considered gale force winds as 63km/h or more, and damaging wind gusts as 90km/h or more. He cited an example of a woman killed by a tree in Liverpool, where the winds did not reach these levels.

34. As to tree suitability, Mr Bradshaw claimed, “there appears to be no literature expressly recommending Blackbutts in residential settings. In fact, local government authorities and Australian Academy of Science strongly indicate that this tree is not suitable for particular suburban environments”. He contended, “the court should be satisfied that the characteristics of this tree type pose a serious risk to safety and property damage especially if the tree is not regularly pruned, deadwood is not removed, and the tree has grown to a level of maturity which increases the severity of the risk due to the height and weight of branches”.

35. Mr Bradshaw provided guidance sourced from the Australian Academy of Science which essentially said, if you would like to plant a eucalyptus tree but have safety concerns, first check the species, make sure it's appropriate for the size of your yard, and plant it away from your house. Mr Bradshaw also referenced a fact sheet from Hornsby Council that said this species was occasionally used in horticultural applications but suitable for large gardens or park plantings.

36. The applicant quoted from the Australian National Botanic Gardens and Centre for Australian National Biodiversity Research, in relation to E**ucalyptus saligna; “all eucalypts have an efficient method for shedding limbs, as described by Jacobs (1955). For this reason, larger specimens such as E**ucalyptus saligna should not be planted so that they will overhang dwellings.”

37. Mr Bradshaw then contended, “the respondent’s tree is a different type of eucalyptus, however it's still relevant to consider this information as the Blackbutt tree is a large species of the eucalyptus family, with the same propensity to shed its limbs. It is not suitable in its current location. The respondent’s yard is not large, and the tree significantly overhangs the applicants dwelling and other neighbouring properties.” Based on calculations, for which Mr Bradshaw provided a nondescript source of ‘information about planting the trees in residential areas’, the applicant said there should be a 13m distance from the tree to the dwelling and that his dwelling is well within the 13m radius of the tree. He added that, it is possible for the tree to grow to 30m, in which case the distance should be 20m.

38. Mr Bradshaw submitted that:

“the expert evidence supports this literature and states that there is probable likelihood of failure with a high likelihood of impact in swimming pool areas of four neighbouring properties. At the very least, the applicant’s southeastern bedroom, pool and the entire backyard would be severely impacted by failure of the tree.”

Caselaw

39. Mr Bradshaw cited Barker v Kyriakides [2007] NSWLEC 292 (Barker*)*, which established the following Tree Dispute Principle; at [20]:

“For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis.

The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees will not ordinarily provide the basis for ordering the removal of or intervention with an urban tree.”

40. Mr Bradshaw claimed his circumstances should be distinguished from the Tree Dispute Principle in Barke**r because, in his case, the level of “debris is extraordinary and an unreasonable burden on neighbours”. He reiterated the daily raking and sweeping of leaves, nuts, and flowers was onerous and time consuming and 2-4 cycles of the robotic cleaner are usually required before the pool was ready for use. Further, debris infiltrating the guttering clogs filters in the rainwater tanks, which resulted in flooding of downstairs rooms. The applicant noted having to be home during rain events and climb two ladders to remove fine gum tree debris from the roof or else remove the filters.

41. Mr Bradshaw claimed the decision in Yin v D’Hondt [2014] NSWLEC 1040 (Yin) supported his application. In Yin*,* Commissioner Fakes ordered removal of a large Eucalyptus tree determined to have bark inclusions which “may result in harm to people or property in the near future”. The applicant contended the Blackbutt had similar faults and said the damage to the pot, pool cover, and the flooding damage was also similar to Yin.

42. With respect to the cost of removal, Mr Bradshaw cited Black v Johnson (No 2) [2007] NSWLEC 513 (Black*)*, where the Court published a Tree Dispute Principle which says, in summary, that the fact that the tree was there first should not impact on whether or not some order should be made about the tree/s but, subject to a range of matters discussed in the principle, the prior existence of the tree/s may be a relevant matter to be considered when deciding who should meet the cost of carrying out any orders which the Court might make.

43. Although the tree was long established at the time his dwelling was built, Mr Bradshaw claimed the impact on the safety of the backyard, damage to property, and the use of the backyard is a result of the proximity of the tree, the type of the tree, and Mr Robert’s failure to maintain and prune the tree, so it doesn't impede the close surroundings of neighbours.

44. Mr Bradshaw contended he “had no option to build the structure on the land which would have been able to avoid the impact of the tree” and that “the new dwelling was moved forward on the property, away from the tree in the rear yard”. Further, the applicant claimed it would have been “an unreasonable constraint on the development potential of the site, had the existence of the tree limited” the development potential of the site. He said there had been an existing house on his property and a smaller tree species such as a water gum should have been planted.

45. Mr Bradshaw submitted that the neighbour’s arborist report said there was a possible likelihood of inclusion at a major branch junction. Considering the tree’s large size and its potential to cause damage or injury, he claimed the tree should be removed. In a document supporting the Applicant’s Submission, dated 10 February 2025, Mr Bradshaw included an aerial image from 1971 that he suggested may have shown the tree prior to the swimming pool installation. In another aerial image from 1975, the tree and the pool were both visible.

The respondent’s case

46. Mr Roberts was surprised to receive the application for removal of the tree under the Trees Act. He said he anticipated the respondent would be Northern Beaches Council in an appeal to the LEC against refusal of the applicant’s tree removal application.

47. The tree was long established and fairly mature when Mr Roberts occupied his property about 32 years ago. He had been advised that the tree was planted around 1975, but this was unconfirmed. On 26 February 2025, he submitted two documents to the Court; firstly, a ‘Submission by Respondent’ containing Alternative Orders and a version of his Submission to Council in support of the applicant’s tree removal application. The second document was a Response to Mr Bradshaw's Submission of 10 February 2025, with annotated comments.

48. The respondent’s Alternative Orders were:

49. Remove the tree, including sufficient stump grinding to prevent regrowth, and plant a sapling of a native tree species, the mature height and habit of which will be appropriate to the location, or

50. Pollard the tree progressively in 20% increments over three years to a final stem height of 2.3m. Allow annual pruning of 30% of the regrowth for maintenance, or

51. Prune up to 60% of the canopy, by removing Stems 1 and 2 of the arborist report, and other branches that pose a risk of failure within 12 months, as assessed by a Level 3 arborist, and

52. Assign the costs of the work ordered, to the applicant and the respondent in equal parts.

53. Mr. Roberts said his support of Mr Bradshaw's removal application followed the initial approach from Mr Tobler, Mr. Roberts’ east side neighbour. As aforementioned; at [7], Mr Roberts offered to allow access to an arborist should the Tobler’s wish to commission one. If the arborist report recommended removal of the tree, Mr Roberts would make a tree removal application to Council and pay Council’s application fee. Mrs Tobler was very fearful of the tree uprooting, notwithstanding the trees canopy was largely clear of the Tobler’s land.

54. Mr Roberts clarified that there were no representations by other neighbours about the tree until after Mrs Tobler procured the arborist report and before the applicant’s tree removal application to Council on or about 3 June 2024, notwithstanding that Mr Bradshaw said it was much before this.

55. Mr Roberts also clarified that the applicant’s submission about “further testing of the bark inclusions” was incorrectly referenced from the arborist report, as Mr Millington had noted only possible bark inclusions. Although he advised Mr Bradshaw on 11 August 2024 that he could proceed with the pruning, Mr Roberts said he was reluctant to allow the permitted 20% pruning of a healthy tree.

56. Mr Bradshaw proposed to pay for Resistograph testing by an arborist but wanted Mr Roberts to pay for a report, if the testing provided evidence of bark inclusions. After considering the outcome of Mr Millington’s ground based visual assessment in the arborist report, Mr Roberts doubted the tree had “hidden defects” that would convince Council of the necessity of the tree’s removal.

57. Mr. Roberts said he and Mr Bradshaw had different perspectives about risk. Mr Roberts considered tree risk from a scientific and mathematical perspective. While he acknowledged increasing extreme weather associated with climate change, he noted the death in Liverpool cited by Mr Bradshaw had occurred during high winds, regardless of whether the winds exceeded an arbitrary threshold for “extreme” weather conditions.

58. He referred to BOM and the State Emergency Services advice for preparing for severe weather which included sheltering, securing pets and animals, and securing or storing items in yards or balconies that may otherwise blow around in strong winds. Similarly, for thunderstorms, Mr Roberts cited BOM advice that no place outdoors was safe, and people should shelter immediately and stay inside, well clear of windows, doors and skylights.

59. In response to Mr Bradshaw's contention of insufficient tree maintenance, Mr Roberts claimed he had the tree pruned in 1996 and 1999 by approximately 10% on each occasion and at Mr Bradshaw’s expense in 2019. He offered the perspective that “as a healthy tree, it maintains itself by means of its genetically determined biological structure and growth. As a native tree, the tree is well adapted to its present situation.”

60. Mr Roberts submitted the applicant’s flooding from rainwater tanks in the house may have been related to inappropriately designed gutters and tanks, the incorrect location of the tanks, and the incorrect location of surface water collection points. Additionally, Mr Roberts claimed excessive hard surfaces on the applicant's property and surface water runoff from neighbouring properties may be impacting the flooding.

61. The respondent said the only complaints of nuisance had come from the rear neighbours and that related to leaves falling in their swimming pools. He contended approximately a dozen eucalyptus trees in the park nearby also shed leaves, twigs and similar debris which would blow in these neighbours’ pools.

62. Mr Roberts claimed that during clearing and excavation for the applicant's new house, all existing trees and shrubs were removed, including a 4-5m tall stand of Giant Bird of Paradise (Strelitzia nicolai) which had grown adjacent to the Blackbutt and provided privacy screening along the boundary. Mr Roberts considered it probable that excavation for removal of the Giant Bird of Paradise and excavation of an adjacent trench for sewer pipes, “damaged any roots of the Blackbutt extending beyond the boundary line.” The respondent speculated that this “may explain any extraordinary shedding from the tree”, particularly during severe storms.

63. With respect to Mr Bradshaw's claim of having “no option to build the structure on the land” in order “to avoid the impact of the tree”, Mr Roberts submitted the previous house, which he believed “accommodated a family of 5 or more”, was a single-story dwelling located further from the tree than the new house. He said the new house, which accommodated a family of 5, was two stories above a bottom third level which contained a garage, a study, the front entrance, the hallway, and the staircase. He said the site was excavated by more than a metre, back to the coping of the pool and the new house exceeded the building envelope for a single-family dwelling in several places, per the requirements of Warringah Local Environment Plan 2011 (LEP). He noted having expressed his opinion with Council that the proposed dwelling footprint area and height were excessive but said the dwelling was, nonetheless, approved with conditions.

64. Nonetheless, Mr Roberts agreed to support Mr Bradshaw's application for removal of the tree. He argued that the tree lacked the attributes which would contribute positively to the goals of Council's Tree Preservation Order. He claimed the following factors, not identified in the arborist report, also contributed to the risk:

65. the shallowness of the root plate as indicated by recent excavation nearby,

66. wind exposure: Mr Roberts contended that recent extreme wind gusts, extreme rainfall, and storm water from neighbours’ hard surfaces around their swimming pools enters his yard in heavy rain and saturates the shallow root plate. He inferred this made the tree vulnerable to windthrow.

67. Mr Roberts noted that while more trees in the Local Government Area (LGA) are believed to be a significant remedy to many of the espoused concerns of Council and the NSW government with respect to public amenity, the urban heat island effect, biodiversity, greenhouse gas emissions and mitigations. He submitted that his Blackbutt tree does not perform such remedial functions. Based on a quantitative assessment of the tree’s “carbon sink” function of reduction of the CO2 concentration in the atmosphere, Mr Roberts contended the tree no longer functions as well as an alternative such as replacement with a Blackbutt sapling.

68. Mr Roberts opined that the impact on the “amenity” of the neighbours’ backyard was not addressed. Notwithstanding that he acknowledged the removal of a carbon sink, such as a tree, seemed counter intuitive to Net Zero goals, Mr. Roberts suggested trade-offs were sometimes required, in this case to reduce risk and increase the applicant’s amenity.

69. Mr. Roberts discussed the NSW Climate Change (Net Zero Future) Act 2023 (the Climate Change Act). He submitted that Council’s refusal of the tree removal application was not consistent with the guiding principles of the Climate Change Act, at s 8. Specifically, the right to a clean, healthy and sustainable environment, that Council did not involve appropriate consultation with affected persons communities and stakeholders, did not consider the impact on the amenity of local communities, and the decision does not contribute to the objective of adaptation.

70. The respondent’s submission included application to the Court for a ruling on the applicability of the Climate Change Act to cases under the Trees Act, in accordance with the NSW LEC Practise Note Class 2 Tree Applications dated 22 November 2018 section 19.

71. Mr. Roberts submitted that the tree provided negligible environmental services and amenity, because:

72. The tree is not a remnant of the original bushland or part of recognised or recognisable bushland. It is not a key threatened flora species or in a threatened ecological community, it does not provide habitat for local native plants and animal species, threatened species populations or endangered ecological communities

73. The tree is not a “significant tree” that it has negligible impact on the streetscape. It does not include hollows and is not of conservation significance or habitat value.

74. The tree is a solitary tree. It is not part of an “urban” forest. It does not protect or enhance scenic value and character because it is hidden by surrounding houses. It is not part of any naturally occurring native ecological community and the lot in which it stands is not of high biodiversity value. There is no designated wild-life corridor nearby.

75. The tree’s present contribution to Council’s objectives to minimise soil erosion, to improve air quality, water quality, carbon sequestration, stormwater retention, energy conservation and noise reduction are minuscule, zero or negative. For soil erosion, because it is not near a water course. For carbon sequestration, it makes a negligible and probably declining contribution because the tree is mature. Replacement by a sapling would sequester more carbon in future than the ageing tree, if it were to remain. It provides zero to negative contribution to energy conservation because it throws shadows over the surrounding houses in winter, thus increasing heating requirements but casts no shadows over the surrounding houses in summer.

Tree Risk assessment

66. Mr Roberts provided a critique of Tree Risk assessment within a broader analysis of quantitative and qualitative risk assessment methods and the assessment components of Likelihood of Failure, Likelihood of Impact, and Consequences of Failure. He opined on perceived weaknesses of Tree Risk Assessment Qualification (used in the arborist report) and the three years period applied. He discussed variables that impact on the risk result such as the size of the branch, and likelihood of impact as a factor of duration of human occupancy of a target zone.

67. Mr. Roberts noted that very different risk perspectives would be held by an insurance company, a government authority, or the parents of children living within a target zone. As death or serious injury to a family member is an immeasurable and intolerable consequence for a family, Mr Roberts opined that the human right to self-protection should be paramount in the assessment of tree risk.

Real-World Tree Failures

68. Mr Roberts claimed that tree failures are surprisingly frequent but mostly unrecorded and that many tree failures in urban or suburban situations cause damage. He noted by the applicant’s reference to a woman killed by a falling tree branch in Castlereagh Street, Liverpool on 15 September 2024 and said the BOM had issued a severe weather warning for damaging wind gusts.

69. Mr. Roberts noted the database of Australian fatalities associated with tree failures by M Hartley and J Chalk, who published ‘A Review of Deaths in Australia from Accidental Tree Failures’ (2019). Mr. Roberts discussed the authors’ observation on the database statistics from the annual mortality rate from tree failure during 2000 to 2012 was in the order of 1 per 5 million people. If this rate is extended over the period of the database from 1858 to 2017, it would contain 255 fatalities. The database contains 242 incidents and 273 fatalities. In 8.5% of the incidents, it mentioned light winds or windy without mention of the storm. Inclement weather made up 67% of events. Combined, wind and inclement weather accounted for 85% of the incidents. 71% of fatalities occurred in regional areas, with only 20% in major cities.

70. Mr. Roberts considered the death of Bridget Wright who was killed by a falling branch in a school playground in Pitt Town, in Sydney’s outer north-west. It led to the inspection of 2500 schools and the removal of 9000 trees. The coroner’s primary finding related to changing behaviour, so people avoid or limit being outdoors or driving during storm events. The coroner said, “this has the potential to make significant improvements in reducing the risk from tree failure.”

Real people see risk differently to governments

71. Mr Robert’s opined that “it is a natural impulse to try and eliminate all tangible real risks, and avoid possible risks, as people perceive them”. Exposure and consequences are the overriding concern. When a tree causes immediate concerns about personal risk, most individuals find it frustrating to deal with a Council’s bureaucracy in seeking a solution. He noted policy adopted in the Shoalhaven LGA area where an owner can remove a tree of concern without a Council issued permit according to the “45 degrees” rule.

72. Mr. Roberts serious concerns, in increasing order, were possible damage to his house and neighbours’ property caused by tree failure, safety of neighbours, and personal safety and wellbeing. He was also concerned about the tree’s physical size and that the frequency of deadwood falling has increased during his 30 plus years of occupation. In his submission, at Appendix A, he included a diagram which indicated the approximate locations where pieces of deadwood larger than 10mm diameter had fallen in the past 5 years. The diagram in Appendix A also included the location of the live branch of about 100 mm diameter and 6m length which fell suddenly during benign summer weather about 20 years ago. Mr Roberts attributed the live branch failure to heat stress and subsequently moved a trampoline from under the tree as a precaution.

73. Mr Roberts noted the tree annoyed neighbours, and that he found their conduct to be intimidating on some occasions he discussed the tree with them. He noted disconcerting news reports about a Sydney man who had allegedly been murdered by his neighbour during a dispute over a fallen tree.

Findings

Section 10

74. I am satisfied the applicant's chronology of various discussions with Mr Roberts over recent years, copies of the parties’ correspondence, and offers to contribute to the cost of pruning and removal demonstrated Mr Bradshaw’s satisfaction of s 10(1)(a) of the Trees Act, to make a reasonable effort to reach agreement with the respondent. Mr Bradshaw submitted evidence of appropriate service of the application and the Court allowed sufficient notice so that s 10(1)(a) was also engaged.

75. Therefore, the principal jurisdictional tests in this matter are at s 10(2) of the Trees Act, with respect to damage and risk of injury caused by the tree.

The tree

76. Regarding the tree’s structure, Mr Bradshaw focused on two possible bark inclusions noted in the arborist report as Stem 1 and Stem 2. Stem 1 was a substantial branch, about 18m long, arising from the western side of the trunk about 1.8m above ground level. Stem 2 was a much narrower branch about 15m long, growing towards the east from a trunk attachment about 3.5m above ground level.

77. Notwithstanding that the arborist report said the junctions of these branches displayed signs of possible included bark and “could become defective” with a “possible likelihood of failure”, I was satisfied there was no reason to be concerned about the structural integrity of these branches. Relying on the arboricultural expertise I bring to the Court, accrued over 45 years and including considerable familiarity with this species, I was satisfied the tree was an outstanding specimen in terms of structure and health.

78. The tree’s ascending form and multiple co-dominant junctions were characteristic of the species. As noted by Mr Roberts, the tree showed no sign of cavities, nor did I see trunk or branch wounds of any consequence. Branch attachments at collars and at co-dominant junctions appeared sound and strong. As to Mr Bradshaw’s suggestion that “formative maintenance” should have been undertaken to correct co-dominance, this was neither realistic nor necessary. The co-dominant junctions were a genetic feature, particularly as the tree became increasingly decurrent, and were not a point of discernible weakness. To the contrary, they were open, smooth, occluded, and active, and looked particularly sound.

79. Mr Millington was correct that the junctions of both Stem 1 and Stem 2 showed signs of possible inclusions. The signs indicated very minor inclusions, however. To this effect, at 6.1.5 of the arborist report, Mr Millington noted probing the top of the junction of Stem 1 and reaching sound wood within 200 mm. He did not consider this, “a significant defect that would raise failure potentials”. With respect to Stem 1, the Discussion of the arborist report, at 7.5, said, “the ears are not considered to be pronounced indicating the tree has responded to the included bark (as shown at 7.1.1) or the included bark is small enough not to warrant a significant volume of response growth from the tree”.

80. Critically, both junctions displayed excellent response growth which provided appropriate strengthening to compensate for any weakness. The Discussion of the arborist report, at 7.3, said , “When a tree is successfully occluding a bark inclusion, the ears are less pronounced and appear more like cross Section 1” (at 7.1.1). The tree had appropriate “adaptation and the production of new wood in response to damage”, as discussed at 7.4. This was clearly manifest on the tree as current, vigorous, rounded response growth exactly where I anticipated it was needed.

81. Extensive testing of branches with such response growth has shown equal strength to attachment of branches with no inclusions. Nor was there any reason to presume similar response growth would not continue wherever required, given the tree’s dense foliage cover which reflected good health, strong vigour, and likely carbohydrate reserves.

82. In his submission, Mr Roberts discussed cavities in Blackbutt trees that were over 200 years old. Indeed, Eucalyptus pilularis is a long-lived species, and thus this specimen was relatively young within its potential life cycle. Though Mr Bradshaw feared the tree would grow to 30m tall, this was unlikely as it was an amenity tree that was growing without competition for sunlight (rather than a forest form) and its upper canopy growth was suppressed by ongoing exposure to winds.

83. Both parties expressed concern about the impact of wind on the tree and the likelihood of more intense winds due to climate change but neither factor presented specific threats to the tree. The bottom half of the tree was protected from prevailing southerly winds through its proximity to the adjacent cliff.

84. Significantly, branches, trunks, and roots of trees grow dynamically. They continuously respond to flexing caused by the forces of wind and gravity by producing extra strengthening wood as and where they need it, provided they have sufficient energy and vigour to do so, which this tree clearly does. Even if wind intensity increased over time as an impact of climate change, as is not unlikely, there is good reason to assume the tree would adapt to such impacts.

85. As a species, Blackbutt trees are renown to have strong wood, and at 6.1.1, Mr Millington appropriately noted, “the tree is not considered to have a propensity to live limb failure”. This conclusion was based on discussion with Mr Roberts. As noted in his submission, since Mr Roberts purchased the property in 1993, 32 years prior, the tree had shed only one significant live branch, about 100 mm diameter and 6 m long. No wounds from failed live branches were visible on the tree. This was very unusual. Considering all the storms endured over about 50 years, one may reasonably conclude that the tree had strong branches with structurally sound attachments. The tree was tried and tested.

86. Conversely, it was not reasonable for Mr Bradshaw, in his Submission, to generalise from an article about Sydney Blue Gum (Eucalyptus saligna) and assign Blackbutt trees, “with the same propensity to shed its limbs”. Mr Bradshaw provided no basis for this claim, and it was incorrect. The propensity of trees to shed limbs varies widely between species, and between individuals. A small percentage of Eucalyptus saligna specimens are considered to have a genetic tendency to poorly attached or relatively weak branches that are prone to failure, and usually exhibit this from an early age. However, as a species, Blackbutt trees do not display this characteristic.

87. On the basis of this erroneous claim, Mr Bradshaw then said:

“…the expert evidence supports this literature and states that there is probable likelihood of failure with a high likelihood of impact in swimming pool areas of 4 neighbouring properties. At the very least, the applicant’s southeastern bedroom, pool and entire backyard would be severely impacted by failure of the tree.”

88. Mr Millington made no such reference to the likelihood of any live branch failure. His reference to “probable likelihood of failure with a high likelihood of impact in swimming pool areas”, related only to dead branches.

89. Nor is Mr Bradshaw’s contention that the tree is too big for the yard necessarily reasonable. It was planted near the middle of Mr Robert’s back yard, well clear of then existing houses. Its canopy was currently largely confined to Mr Roberts’ back yard. As seen in Mr Millington’s aerial image, a very small proportion of the canopy extended over Mr Bradshaw’s or Mr Roberts’ dwellings or adjacent pools.

90. Mr Bradshaw’s reference to “information about planting the trees in residential areas”, which suggested there should be a 13m distance from the tree to the dwelling is largely irrelevant due to its non-specified source or criteria on which such a claim was based. For example, structural engineers may consider such a distance should be greater or less than 13m depending on the reactivity of site soils. Regardless, the tree had been determined to be structurally sound, and a 13m distance from the dwelling was unnecessary on safety grounds.

91. Mr Roberts’ misgivings about the tree’s stability in the ground due to insufficient soil depth on a rock shelf were also ill founded. The anchorage and stability of most trees arises from a web of roots that cumulatively spread laterally from the trunk base and are often no deeper than 40 centimetre (cm). Roots grow, thicken and strengthen in response to forces on the tree canopy. Mr Roberts speculated that the tree’s vigour and dense foliage may be due to roots accessing a sewer main. Alternatively, it may be from an abundance of water flowing from properties above the cliff and Sydney’s rainfall levels having been above average since 2020. Regardless, it was not unreasonable to assume the tree had a fairly large, healthy and functional root system. Roots grow opportunistically where conditions are optimised, and sinker roots may have also penetrated and anchored in cracks and crevasses amongst the rocks below.

92. Compromised anchorage is usually associated with soil disturbance, excavation, and root damage in close proximity to a tree’s base and is often accompanied by root rot. While Mr Roberts noted disturbance of the tree’s roots from Mr Bradshaw’s dwelling construction, had serious root damage resulted, the tree would probably have been exhibiting symptoms of dieback from the tips of branches and epicormic growth over recent years. It was not showing such signs, however. Additionally, when tree stability is suspect, cracks usually develop in soil around the trunk and early signs of heaving or lifting are often visible around the trunk base.

93. As with the trunk and branches, I was satisfied that the root system was sound and strong, and the tree was stable in the ground.

94. Mr Bradshaw’s claim that the decision in Yin supported his case was unfounded as the Blackbutt tree did not have faults such as the bark inclusions that led Commissioner Fakes to order the removal of a Eucalyptus tree on the basis that it “may result in harm to people or property in the near future”.

95. Mr Roberts noted many past incidents of deadwood that had fallen in his yard, and he had mapped the locations of impact. Yet, none were reported as being consequential. Further, Mr Roberts had the option of having the deadwood pruned at any time, as pruning deadwood was exempt from Council permission. Though Mr Roberts had the tree pruned in 1996 and 1999, and in 2019 at Mr Bradshaw’s expense, he had otherwise chosen not to prune the deadwood.

Damage caused by the tree

96. Mr Bradshaw included images of the dead stick, which was about 4m long and about 42mm diameter at the branch collar, that fell and broke a ceramic pot near the common boundary in May 2020. The dead stick exhibited multiple transverse cracks near its point of failure, suggesting it had dried and become brittle over a sustained period before breaking and falling.

97. Though the pot was small, and the damage was minor, the Court's decision in Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285 indicates that even relatively minor damage engages the Court's jurisdiction. However, the extent of the damage may influence orders the Court makes.

98. Mr Bradshaw also claimed twigs from the tree had pierced and torn his pool cover. There were small sticks on the cover at the hearing, up to about 50cm long and a few mm diameter. Others in the submitted photographs were a bit larger, and one close up photograph showed a short thicker stick that appeared to have pierced the pool cover. Therefore, I accept Mr Bradshaw’s claim regarding damage to the pool cover by the tree.

99. Consequently, s 10(2)(a) is satisfied, and the jurisdiction of the Trees Act is engaged.

100. The applicant claimed the tree caused flooding on his dwelling’s ground floor and nominated his back yard and the southeast corner of his dwelling roof as likely to sustain damage in the near future. In a guidance decision published in Yang v Scerri [2007] NSWLEC 592 (Yang), as a rule of thumb, the ‘near future’ is deemed to be a period of 12 months from the date of the determination.

101. The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 (Smith). At [62], Craig J states in part "something more than a theoretical possibility is required in order to engage the power under [the Trees] Act...”.

102. As shown in Mr Millington’s aerial image, only a small proportion of the tree’s canopy encroached over Mr Bradshaw’s roof. No faults were apparent on overhanging branches that were visible from ground level. The branches were not overextended. There had been no past reports of branch failures or roof damage. Therefore, consistent with the above commentary about the structural integrity of the tree, on the balance of probability, there was no basis for presuming roof damage due to live branch failure was likely in the near future. Deadwood that may fall was unlikely to cause damage of any significance and shall be addressed later.

103. The tree’s canopy was barely overhanging the applicant’s back yard. The applicant’s evidence contained one photograph of a live fallen branch that was perhaps 70cm long and about 8mm diameter at the breakage point. No other tangible evidence of live branch breakages onto Mr Bradshaw’s land over the past 6 years was submitted. Consequently, live branches were unlikely to fail and cause damage to the applicant’s back yard in the ensuing year.

104. Considering the nature and location of the tree, and the overall absence of live branch loss, I am not satisfied that the tree was likely to cause damage in either of these areas. Therefore, both these claims are refused. The water storage system will be considered with respect to s 12 of the Trees Act.

Risk of injury to persons

105. Mr Bradshaw claimed the tree presented a genuine risk of injury to his family of five people and two dogs. He nominated the back yard and the bedroom under the southeastern corner of the dwelling roof as locations where risk of injury to persons was likely. He discouraged his children from going near the common boundary in the back yard due to the perceived risk.

106. Regarding injury, the Court considers the risk posed by a tree in the foreseeable future based on the characteristics of the tree/s, the history of any failures, any other relevant evidence, and the circumstances of the site apparent at the time of the hearing (McPherson v Lake [2017] NSWLEC 1081 [at 10]).

107. Mr Roberts posited that the Court’s guidance for risk assessment with respect to a person and property is to estimate the Likelihood of failure of the tree within 12 months. If “probable” then the Court may order its removal.

108. As noted at [100], the decision in Yang resulted in the Court usually considering “the near future” with respect to damage, to be about 12 months. For risk of injury, the time period is not defined. It is not restricted to 12 months nor to the three years that Mr Millington applied. Where available, the Court considers the opinions of ‘Expert arborists’ and, as hearings occur onsite, the arboricultural expertise of the Court is applied. Tree removal may be required, or pruning may be sufficient to mitigate the risk, or no orders for intervention may be appropriate.

109. While assessment of damage under the Trees Act relates only to the applicant’s property, consideration of injury can relate to other areas surrounding the tree. In Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (Robson); at [175], Preston, CJ indicated that the applicant’s concern about likely injury can be but doesn’t necessarily have to be injury to a person who would be on the applicant’s land. Orders have been made for the removal or pruning of trees on the basis they may cause injury to people on the respondent’s land (see Reuben v Lace [2010] NSWLEC 1024), or on other private or public land.

110. As noted in consideration of damage, no past live branch failures onto the roof or roof damage had been reported. Mr Roberts was aware of only one notable live branch failure in his 32 years of occupation. As only the tip ends of branches were overhanging either parties’ roof, in the event that a branch did break and fall on a roof, the roof surface may be damaged, but the structure of the roof of either dwelling would almost certainly provide protection from injury to a person within a dwelling. One may reasonably assume branches involved would be relatively small diameter as they would emanate from longer branches currently overhanging fairly low over the roofs or from smaller branches higher in the tree, impacted by wind.

111. The thicker sections of primary branches were confined to the area closer to the trunk, which was too far away to impact the applicant’s land or either dwelling. While small branches may be blown sideways by winds, gravity is the primary force impacting heavier branch sections, so they tend to drop vertically.

112. Consequently, I am satisfied the risk of injury to people inside either dwelling is low.

113. Though he said his list was not exhaustive, Mr Bradshaw noted four dead branches that fell onto his lawn or pool surrounds near the common boundary between 13 May 2020 and 16 March 2024. Given this rarity of reported branch dropping, impact by a branch is unlikely. The largest branch was that which broke the side of a small ceramic pot on 13 May 2020, which was about 4.1m long and tapered rapidly from 43mm diameter at the branch collar. Mr Bradshaw described this branch as ‘large’ and said, “he had no doubt this branch would have killed one of us if struck by it.” Such a consequence is remotely possible, but highly unlikely. A shock, bruising and/or a superficial skin cut would be much more likely. Mr Bradshaw said he reduced the risk of injury from falling branches by avoiding the eastern side of the yard, blocking off access to the eastern garden bed to minimise risk to the dogs and avoided sitting on the eastern side of the pool.

114. Further, Mr Bradshaw’s claim that “a large proportion of the tree overhangs my property” was not supported by the evidence. The pool and pool surrounds were clearly visible in the aerial photo at p 4 of the arborist report and very little of the lower canopy that had previously been pruned in both 2019 and 2020 appeared to extend beyond the boundary at the hearing. Nonetheless, deadwood could and probably did deflect off branches into the applicant’s property when falling from higher in the tree.

115. Based on the adduced evidence, the risk of injury was relatively low. Nonetheless, pruning of deadwood will be ordered to reduce the risk further.

116. Mr Roberts had the tree pruned in 1996 and 1999 by approximately 10% on each occasion. Notwithstanding the recent pruning prompted by Mr Bradshaw, Mr Roberts otherwise said the tree “maintains itself by means of its genetically determined biological structure and growth”. Although Mr Roberts noted many instances of dead branches falling onto his land and mapped their points of impact in Appendix A, and regardless of Mr Bradshaw’s repeated appeals, Mr Roberts had not pruned deadwood from the sections of the tree in relatively close proximity to neighbouring properties.

117. As noted above, this applied to the area proximal to the common boundary with Mr Bradshaw, but it also applied to the area of the canopy overhanging swimming pools of south side neighbours. While there was no obvious risk from overhanging live branches, it was likely that these branches were holding deadwood and entirely predictable that the deadwood would fall. Therefore, Mr Roberts had a duty of care to prune the dead branches over the pool. Given Mrs Tobler’s letter about young children visiting, should the canopy near the common boundary with the Tobler’s also contain obvious deadwood, pruning deadwood from the area near the respondent’s eastern boundary would be prudent.

118. When orders are made for pruning, the Court often specifies a minimum diameter. The usual specification is deadwood above 20mm, or 30mm (the threshold Mr Millington used) where occupancy may be less frequent. Where children regularly play under tree branches, such as in swimming pools, I specify removal of deadwood above 10mm diameter.

119. Both parties and the Tobler’s expressed concern about the tree being uprooted and toppling over as a result of extreme winds. As I noted above, the rare occurrences of uprooting (or windthrow) are usually proceeded by distinct damage or disturbance around the roots, and/or root rot fungus. It was seven years since the applicant’s building works. Had there been marked root impacts from construction, the tree would have shown distinct symptoms within its canopy by now. The soil and root depth and spread on the sandstone shelf was adequate for sound anchorage and this may have been further enhanced by roots growing into cracks in the rock.

120. There is a tendency to equilibrium between above and below ground parts of a tree. Dense, healthy foliage suggests dense, healthy, functional roots. There was no sign of fungal decay above ground and no reason to expect root rot below ground. There were no indications of soil cracks or signs of heaving or lifting around the trunk base that are usually associated with instability. Therefore, there was no reasonable basis to believe tree stability in the ground was suspect and the risk of windthrow was very low.

121. Tree branches also absorb and reduce wind impact by mass damping akin to heavy weights that are suspended in the top of tall buildings. Branches do not bend over simultaneously as a unit. Rather, exposed branches flex and sway in irregular harmonic patterns. Much of the force of the wind is absorbed by the flexing branches and transferred down the stems into surrounding soil. While people may reasonably be concerned about trees causing damage to structures during storms, research shows that trees also mitigate wind impacts and may protect structures from damage such as roof loss.

122. Mr Roberts noted advice from emergency authorities to stay indoors during storms and strong winds, and such advice is usually heeded. Mr Roberts analysis of ‘A Review of Deaths in Australia from Accidental Tree Failures’ revealed that 85% of these deaths occurred in conditions of wind or inclement weather. Even in the most extreme storms where sound trees may suffer windthrow, people are very rarely injured as they are usually protected within houses and other structures.

123. Anecdotes such as the woman killed by a tree in Liverpool do not provide insight to the circumstances surrounding this tree. There is no doubt that there are tragic circumstances where people are very unlucky to be in the wrong place at the wrong time. When someone is killed by a shark whilst swimming, it is similarly unlucky but the probability of either of these events is extremely low. For trees, this extremely low risk can be calculated from the data in ‘A Review of Deaths in Australia from Accidental Tree Failures’.

124. Mr Roberts noted, “it is a natural impulse to try and eliminate all tangible real risks, and avoid possible risks, as people perceive them”. While this is a truism, perception and reality are often different and tree risk according to a layperson may be different to tree risk as assessed by an expert arborist. Arbor phobia is not uncommon. Unfounded fear of trees is included in many Council’s Development Control Plans amongst reasons for refusal of tree removal applications. It is not possible to eliminate risk. For example, people accept a relatively high tangible real risk of death or injury every time they travel on roads.

125. With s 10(2) of the Trees Act satisfied by the broken pot and the damaged pool cover, the Court is required to consider relevant matters in s 12 of the Trees Act, so as to balance the tree’s attributes and benefits against the imperatives informing intervention.

Section 12

126. The tree is situated near the middle of the respondent’s backyard (s 12(a)).

127. The tree is prescribed under Parts E1 and E2 of Warringah Development Control Plan 2011, the jurisdiction for which is founded under the Environmental Planning and Assessment Act 1979 (s 12(b)).

128. Pruning selective deadwood from the tree will have a significant impact on both risk of injury and the tree’s likelihood to cause damage (s 12(b2)).

129. It is a large tree that contributes to privacy, and protection from the sun and wind. Given the proximity of two pools near the edge of the clifftop properties to the south, in the absence of the tree, residents of these properties would overlook Mr Roberts’ backyard and dwelling and perhaps Mr Bradshaw’s pool and dwelling. Privacy is the most regularly mentioned benefit raised under s 12. Many benefits of trees are not known or appreciated until trees are absent (s 12(b3)).

130. Although Mr. Roberts considered the tree provided negligible environmental services and amenities, it does make obvious contributions to local ecosystems and biodiversity. Regardless of whether it is an endemic species, as a large native tree of the Sydney region, its flowers, fruit, branches and trunk may be expected to provide food and habitat for birds and nocturnal animal species, such as possums, flying foxes and microbats. It may form part of wildlife corridors, and as it gets older, its ecosystem services are likely to increase e.g. cavities are likely to start developing in 25-50 years. The tree is likely to foster beneficial fungi above and below ground and enhance the soil rhizosphere. In Robson, his Honour provided commentary on environmental considerations under s 12 of the Trees Act; at [203]:

“203 The matters concerning the values of the tree and its environmental contribution are notable additions to the matters recommended by the Law Reform Commission in its report. The Law Reform Commission report was relatively quiet about environmental factors, in contrast to the earlier discussion paper which had emphasised the environmental values of trees. The legislature, however, took a different view and required the Court to consider environmental factors. This was a point specifically made in the second reading speech:

“The provisions that require the Court to consider environmental factors prior to making an order are in recognition of the importance of urban trees as an environmental asset. Urban trees play a proven environmental role in every urban society. They provide energy savings through lower cooling costs, reduce stormwater run-off, help reduce salinity and provide aesthetic and social benefits associated with being in proximity to nature. The bill therefore recognises the environmental contribution of urban trees as a factor that the court must take into consideration in determining applications”.”

131. Though Mr Roberts suggested mental wellbeing was not being considered in Council’s refusal of tree removal, a contra argument arises from the positive impact on health and wellbeing gained from trees and from contact with nature. Many studies have documented mental health and recuperation benefits gained by hospital patients from viewing or being in proximity to trees. A broader cultural appreciation of the health benefits of trees is epitomised by the Japanese practice of “bathing in the green forest” (s 12(d)).

132. As a native of the Sydney region, the tree contributes to the natural landscape. Though it is in the back yard, the tree is sufficiently large to be visible from the street and from neighbouring properties. Therefore, it provides moderate intrinsic value to public amenity (s 12(e) and (f)).

133. The tree’s web of roots would contribute to soil stability and absorption of water that was referenced in Mr Roberts’ submission as flowing down from the clifftop properties to the south (s 12(g)).

134. At s 12(h), if the applicant alleges the tree has caused damage to his property, s 12(h)(i) requires consideration of “anything, other than the tree, that has contributed, or is contributing, to any damage or likelihood of damage, including any act or omission by the applicant and the impact of any trees owned by the applicant”.

135. The age and nature of a structure is considered at s 12(h) and here this relates to the pool cover, which Mr Bradshaw said was about five years old. A certain amount of wear and tear is expected to arise with any structure over time, and the Court considers this when determining the extent to which a tree may or may not have caused the alleged damage.

136. The branches on the pool cover at the hearing and most of those in photographs in the application were relatively small and light. Such branches would normally not be expected to penetrate or damage a pool cover. The pool cover appeared thinner and less robust than those usually viewed by the Court in hearings under the Trees Act and it may have perished over time from sun exposure. Mr Bradshaw did not seek compensation for pool cover damage, but the age and nature of the pool cover must be considered as major factors impacting the pool cover’s propensity for damage by relatively small, light branches.

137. Nonetheless, orders that will be made for pruning deadwood in close proximity to the common boundary should reduce the likelihood of deadwood falling nearby. I was not persuaded by Mr Bradshaw’s claim, however, that his circumstances should be distinguished from the application of the Tree Dispute Principle in Barke**r because the level of “debris is extraordinary and an unreasonable burden on neighbours”.

138. Many trees in urban areas overhang common boundaries and encroach on neighbouring properties. In Ku-ring-gai, or Woollahra LGA’s, for example, trees form dense canopies that overhang neighbouring buildings and yards. Even there, if the trees have not caused, or are not causing damage, or are not likely to cause near future damage, nor likely injury, there is no power under the Trees Act to prevent the trees from growing as and where they will naturally grow. Internationally, there is often a correlation between areas with dense tree canopies and those with high property values. There is no law per se requiring a property owner to prevent foliage from their trees growing over boundaries.

139. In this case, the tree’s canopy is barely overhanging the common boundary and the backyard area impacted is relatively small. All the backyard debris discussed by the applicant could be maintained relatively quickly, efficiently, and quietly with a battery powered blower/ vacuum, which are readily available. The removal of leaves and other debris from the roof and gutters, which is specifically referenced in Barke**r, is entirely reasonable, particularly given that Mr Bradshaw chose to place his dwelling under the canopy of the long-established tree. There was nothing “extraordinary” about the maintenance burden of the applicant’s site that would lead to exclusion from the reasonable expectations arising as a consequence of the Tree Dispute Principle in Barker.

140. In his submission, Mr Bradshaw cited Black, where Commissioner Moore and Acting Commissioner Thyer provided commentary after they requested plans from Council; at [14]-[16]:

“14. I had made that request as I was concerned that the Black’s residence had been approved and erected at a time when the four trees were already significantly grown at a location along the common boundary some metre or so to the south of that boundary.

15. Indeed, this gives rise to some matters of broader principle which need to be considered in the context of this case but can also be put in general terms as follows:

“Tree Disputes Principle The existence of a tree prior to the construction of a structure which has subsequently been damaged by the tree is not a matter likely to be taken into consideration on the question of whether or not some order should be made for interference with or removal of that tree or other remedial work. On that question, the seriousness of the damage and any attendant risks are the primary matters for consideration. If interference with or removal of the tree or other work is warranted because of the extent of the damage the tree has caused or risks now posed by the damage, the fact that the tree was already growing in the vicinity at the time the structure was built is a matter which may be relevant and appropriate to take into account on the question of who should undertake any work and/or apportionment of the cost of such work. However, it will also be relevant to consider whether or not the tree was self-sown or was planted. If it was planted, consideration will need to be given to the appropriateness or otherwise of:

the type of tree planted; and

the suitability of the location in which it has been planted.

Equally, it will be relevant to consider whether the choice of location for the structure was unnecessary or avoidable or, on the other hand, if it would have been an unreasonable constraint on the development potential of the site had the existence of the tree limited that potential.”

16. In the present circumstances, we have considered what the position would be if there were an alternative design to the Black's residence and have done so in light of the above principles.”

141. Here, Mr Bradshaw’s dwelling had not been damaged by the tree, but he claimed that damage from water tanks flooding the lowest level of his dwelling was caused by the tree. Mr Bradshaw claimed he, “had no option to build the structure on the land which would have been able to avoid the impact of the tree”. He considered it “an unreasonable constraint”, had “the existence of the tree” limited the development potential of the site.

142. Mr Roberts, however, contended the damage from flooding may have been due to inappropriately designed gutters and tanks, the incorrect location of the tanks, and excessive hard surfaces on the applicant’s property. Mr Roberts had claimed the applicant’s dwelling exceeded Council's LEP building envelope for a single-family dwelling, in several places.

143. Mr Bradshaw submitted no evidence of the tree limiting his development potential but he chose to locate his dwelling under branches of the established tree. In light of the Tree Dispute Principle arising when a tree preceded a development, Black; at [16] considers “what the position would be if there were an alternative design to the (applicant’s) residence”. This consideration extended to design elements of the applicant’s residence. Upon locating part of the dwelling roof under the tree, it was entirely predictable that leaves would fall onto the roof, into gutters and downpipes and into the tanks and possibly cause flooding if no precautions were undertaken. Yet, Mr Bradshaw provided no evidence of having considered this likely eventuality in terms of gutter design, and/ or installation of modified gutters, premium gutter guard, and/ or some other means of preventing the leaves entering at the source. The location of the tanks inside the dwelling also seemed an unusual design, and reinstallation of the tank filters after their removal appeared to resolve the initial flooding source sounded imprudent, at best. Consequently, by his actions and omissions, the applicant contributed to the flooding damage.

144. Poor design is an action specifically prompted under s 12(h). Therefore, I am persuaded by Mr Roberts’ argument that the damage from flooding may have been due to inappropriately designed gutters and tanks and the incorrect location of the tanks.

145. Similar considerations arose in Gardiner v Bisley [2021] NSWLEC 1176 (Gardiner), where the Court found, at [71]:

“Additionally, regardless of whether tree debris drops into the applicant’s pool, resulting in more cleaning and addition of chemical or other ameliorants to stabilise water requirements than may be the case in their absence, upon purchasing the property about five years ago, it should have been obvious to the applicant that the tree was large and well established, that its canopy extended over the pool, and that such additional maintenance would be required. In such a scenario, it is unreasonable to expect that the tree be removed or severely pruned, to eliminate or reduce this debris, when the tree long predated the pool’s installation.”

146. In the context of this site, where the tree was already growing close to the applicant’s pool and the roof maintenance burden arose from Mr Bradshaw’s choice to locate the dwelling under the established tree’s canopy, none of the applicant’s submissions with respect to leaves falling onto his roof and into gutters or the flooding of his tanks, invokes the jurisdiction of the Trees Act.

147. Rather, these elements are all resolved and dismissed under the expectation of reasonable maintenance arising from the Tree Dispute Principle in Barker*;* at [20], ‘additional maintenance’ under the rationale in Gardiner; at [71], and ‘poor design’, due to the foreseeability of such outcomes, as considered in the Tree Dispute Principle in Black; at [15], and at s12(h) of the Trees Act.

148. The application under the Trees Act is quite separate to the application to Council for tree removal. Both parties to this application have had the opportunity to study the Trees Act, its limitations and what it does provide for, and to refer to a large body of previous decisions in Caselaw NSW. Mr Bradshaw referred to relevant cases and mounted arguments within his submissions accordingly.

149. Mr Roberts sought a ruling on the applicability of the Climate Change Act to cases under the Trees Act. Part 2 of the Trees Act is limited to assessment of damage and risk of injury to persons by neighbouring trees. Section 12 requires the Court to consider a range of factors that may have a bearing on orders the Court may make.

150. The most relevant element is adaptation to the impacts of climate change in circumstances where a tree was deemed to have faults that may predispose it to cause damage in the near future or present a risk of injury to persons. If the tree was also found to have insufficient vigour to adequately produce reaction wood in compensation of reducing strength at the faults, then unpredictability associated with extremes of future winds and storms would likely be considered in making orders for intervention i.e. for removal or pruning of the tree. In this case, however, where the tree had the benefit of assessment by two expert experienced arborists as structurally sound and very healthy and vigorous, it is reasonable to assume it has significant capacity for adaptation. Therefore, the implications of Mr. Roberts’ submission are not applicable in this case.

151. As to Mr Roberts’ suggestion that replacement with a new tree may produce a superior carbon sequestration outcome, this fails to consider the high failure rate of young plantings. It also fails to consider the opportunity cost of the unnecessary loss of ecosystem services this tree could otherwise continue to, and increasingly provide, in the interim of many decades before a replacement tree established sufficiently to perform a similar meaningful environmental role. Given the pressure Mr Roberts had encountered from neighbours thus far, one could anticipate a replacement tree would also be a much smaller variety.

Conclusions

152. [deleted]

153. The applicant contended that:

“the Court should be satisfied that the characteristics of this tree type pose a serious risk to safety and property damage, especially if the tree is not regularly pruned, deadwood is not removed and the tree has grown to a level of maturity which increases the severity of the risk, due to the height and weight of branches.”

154. Upon inspection, I found the tree displayed a sound trunk and canopy free of indications of fungal decay, and good branch attachment. There were no obvious signs of past live branch failures. The respondent noted only one live branch failure during his 32 years of occupation, which was a medium sized low branch about 20 years ago.

155. Mr Bradshaw noted elements from the arborist report such as ‘possible inclusions’, and ‘possible likelihood in extreme weather’, to cast aspersions on the tree’s safety. However, as noted by Justice Craig in Smith*;* at [62], "something more than a theoretical possibility is required in order to engage the power under [the Trees] Act”. Something that is possible, and especially possible with conditions, does not meet the onus of proof required under civil jurisdictions. Rather, an event must be probable or likely.

156. I was also satisfied my findings were consistent with the findings of the arborist report, which noted the tree’s “Good Health” and “Good Structure” and assigned the tree to the highest Safe Useful Life Expectancy (SULE) category of > 40 years. In keeping with my conclusions, the arborist report said the tree provided “Very High Amenity Value”.

157. Mr Roberts noted, “[a]s a healthy tree, it maintains itself by means of its genetically determined biological structure and growth. As a native tree, the tree is well adapted to its present situation.” These were sound and reasonable conclusions. As a consequence of its health and vigour, the tree displayed active response growth to compensate for any weakness that may have arisen from the minor structural faults noted in the arborist report. As a genetically sound example of a long-lived species, early in its life cycle, the tree was also likely to continue to maintain its capacity to respond and adapt to environmental conditions for many years ahead.

158. The tree had been well located near the middle of the respondent’s back yard. Mr Roberts noted that Blackbutts were on Warringah Council’s list of suitable trees in 1975, around the time it was planted. The tree overhung a corner of the applicant’s dwelling but had been well clear of the smaller original residence on the applicant’s land. Regardless, only the ends of branches overhung the applicant’s or Mr Roberts’ roof or the pools to the south. The tree had an outstanding history absent of live branch failures and people tend to shelter inside during storms and high winds, when branch failures are more likely.

159. All these things considered, regardless of the tree’s height or the weight of its branches, there was no reasonable basis for concluding the tree posed a serious risk to safety or property damage. The minor damage and nuisance the tree caused was addressed at s 12 of the Trees Act. Considering the tree’s history regarding a lack of live branch failures, there was no justification for live branch pruning. However, there was good reason to prune deadwood.

160. The dead branch that damaged the applicant’s ceramic pot fell near the common boundary, either directly or by deflecting off another branch while falling. To reduce the risk of similar occurrences, orders shall be made to prune deadwood from the tree up to two metres from the common boundary on the respondent’s land, and at the respondent’s expense.

161. Similar orders shall be made for pruning deadwood that may be emanating from live branches overhanging the two clifftop pools to the south. Mr Roberts also has the option to prune some of the live branches overhanging these pools within the scope of the existing permission from Council. Further, Mr Roberts may consider pruning deadwood near the boundary with the Tobler’s property.

162. Though unnecessary on safety grounds, the existing permission from Council provided scope for some pruning of foliage overhanging the applicant’s roof. Given the roof was placed under the tree from the applicant’s choice, both logic and the Tree Dispute Principle in B**lack determine that such pruning, if undertaken, should be at the applicant’s expense.

163. Beyond this, no other pruning is required or recommended. Mr Robert’s proposed alternative pruning order (2) was not an appropriate pruning practice, especially for a Eucalyptus tree. It also contravened the Australian pruning standard (AS4373:2007). His alternative pruning order (3) was unnecessary and excessive pruning. Mr Roberts’ reluctance “to allow the permitted 20% pruning of a healthy tree” was a sound approach, however. I cannot understand why such heavy pruning was permitted by Council. Given that leaves produce the carbohydrates that power all tree functions, any loss of leaves has a negative impact on tree health.

164. The areas near swimming pools were identified in the arborist report as having frequent occupation. The risk from deadwood falling in these areas was deemed to be moderate. The removal of the majority of deadwood from these areas will thus significantly reduce the risk the tree poses. Mr Roberts had logged the location of falling deadwood on a diagram and noted that the frequency of deadwood falling has increased during his 30 plus years of occupation.

165. Given these observations, and the pressure Mr Roberts faced from four surrounding neighbours to maintain the tree, it seemed surprising that he had not undertaken such pruning near his boundaries earlier. Nonetheless, pruning of deadwood is an effective and relatively inexpensive way of mitigating risk of damage or injury from the tree. It is a proportionate response to the relatively low level of risk presented by the tree, whereas tree removal would be a disproportionate response.

Orders

166. The Court orders that:

167. The respondent shall engage and pay Australian Qualification Framework (AQF) level 3 qualified arborists with all appropriate insurances (the contractors), to prune deadwood larger than 10mm diameter at the branch collar from the area of the tree’s canopy south of the applicant’s dwelling that overhangs the applicant’s backyard or is within 2 metres of the common boundary.

168. The respondent shall engage and pay the contractors to prune deadwood larger than 10mm diameter at the branch collar from the area of the tree’s canopy that overhangs the swimming pools, and pool surrounds of the two clifftop properties south of the respondent’s land.

169. The works in Orders 1 and 2 shall be completed within 45 days of the date of these orders.

170. The respondent shall engage and pay AQF level 3 qualified arborists with all appropriate insurances to repeat the pruning works in Orders 1 and 2 at intervals of approximately two years after the initial pruning.

171. The applicant shall allow all reasonable access for the contractors to complete the tree works and remove all refuse from the tree from the applicant’s property, upon receipt of at least 72 hours’ notice from the respondent. Ideally, the owners of the clifftop properties to the south would provide similar access for the contractors upon receipt of at least 72 hours’ notice from the respondent. If the owners of the clifftop properties to the south do not provide such access, neither the contractors nor the respondent shall be liable for removal of pruning debris from such owners’ properties.

172. All tree works shall comply with AS 4373:2007, Pruning of amenity trees, and Safe Work Australia, ‘Guide to managing risks of tree trimming and removal work’, 2016.

173. All works shall be completed during reasonable, daytime working hours.

J Douglas

Acting Commissioner of the Court

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Amendments

06 August 2025

Paragraph [152] deleted in accordance with Court Order made on 6 August 2025.

07 August 2025

Catchwords amended