The applicant, Ms Cayley, shares a side boundary with a property owned by the respondents, Mr and Mrs Gervay, in Thirroul, in the Illawarra region.
The applicant has lived in situ since 1997, and the respondents' since 2018. Three trees, Syzgium australe (Creek lilly-pilly's) (the trees) which are in early-maturity, were planted in about 2013 near the common property boundary, which runs from north to south. The applicant's property is located to the west of the respondent's.
In an attempt to remedy damage that the trees have allegedly caused, are causing, or are likely to cause in the near future, and risk of injury, Ms Cayley made an application, pursuant to s 7 of Part 2 of the Trees (Disputes between Neighbours) Act 2006 (the Act).
Ms Cayley, in her affidavit, dated 4 January, 2021, said she advised both Mr and Mrs Gervay, separately, in late 2019 and early 2020 respectively, that the trees were too tall, dropping branches into her property, and were over her house, and needed to be pruned "much smaller". She estimated their height to be "about 30 metres", while Mrs Gervay estimated their height as 15 metres.
Ms Cayley claims that when Mr Gervay visited some days later, she showed him roots from the trees growing on the edge of her adjacent driveway, noted that she did not want additional root growth, and told him that the trees may need to be removed. Ms Cayley says she also told Mr Gervay that tree roots which Sydney Water had removed from her sewer in late 2018/ early 2019 "must be the lillypilly roots because they are just in front of the sewer on my driveway".
Ms Cayley notes that she and Mr Gervay agreed that she would approach Wollongong City Council (Council) for an inspection, and that an Application for Tree Management Permit was sent to her.
Mr Gervay signed the form as the landowner (of the trees), and ticked the box to request pruning. He provided the form to Ms Cayley, for her to complete as the applicant, and Ms Cayley claims that an arrangement was made for her to lodge the form with Council, and to contact Mr Gervay whilst doing so, so that "he was fully aware of what was happening".
Ms Cayley, upon lodging this application on 16 March, 2020, was advised that she could use the same application for pruning and/or removal. She phoned Mr Gervay, and both she and the Council officer spoke with him. He apparently agreed to adding 'Remove' to the application, and Ms Cayley claims that along with this agreement, Mr Gervay reiterated concern about damage to her driveway.
The reasons for pruning/removal noted on the Tree Management Permit application were "too close to neighbour's house, overshadowing, leaves filling gutters and creating slip hazard on driveway. Risk of falling branches damaging property and hurting people". Ms Cayley also noted that "the roots are exposed above the driveway and will eventually cause damage" and "We also had problems with sewerage and Sydney Water have come out a few times and believe tree roots could be the problem."
On 25 March, 2020, Council inspected the trees, and Consent to Remove was granted, along with a requirement for replanting.
Ms Cayley claimed that "while waiting for Council's decision", Mr Gervay started pruning the trees, and told her this was to "keep costs down of the trees being removed". She refers to a copy of an email, dated 26 March, 2020, and attached to her affidavit (as 'A') which contained a copy of the Council permit, and sought clarification as to whether Mr Gervay, or an arborist would remove the trees down to the roots. Ms Cayley noted that Council's recommendation was to employ an arborist to remove the roots, which she supported. She concluded the email with "Is that okay with you?"
Ms Cayley claimed to have had at least two conversations with Mr Gervay about the removal of the trees, and possible species for subsequent replanting, and that they agreed to get "tree loppers" as part of these conversations.
Ms Cayley notes that on 3 April, 2020, "tree loppers" started work on one of the trees, but Mr Gervay ordered that the work be stopped. She claims that Mr Gervay accepted advice that the part removed tree needed to be completed as it was left in a dangerous state, and also accepted Ms Cayley's request to allow the trees to be lopped more as she argued that pruning to "just below the eaves of her house was pointless", presumably meaning insufficient.
Ms Cayley advised that Mr and Mrs Gervay subsequently permitted no further access to their land, particularly for additional tree work, with the loss of privacy incurred being a major consideration. Mrs Gervay re-iterates this at [32] of her affidavit, of 22 January, 2021.
Mr Gervay, in his affidavit, of 22 January, 2021, at [16], claimed that he was advised by phone, by the Council officer dealing with Ms Cayley, with respect to requesting permission for removal as well as pruning, that "the Application is only for Council's permission to prune and/or remove the Trees and that if the trees were to be removed, then the landowner's consent and the property owner's permission would still be required to remove the Trees".
Mr Gervay notes that soon after Council granted permission for tree removal, he consented to the applicant's request that she obtain a quote for pruning, but claims that no quote was provided to him.
Mr Gervay also claims at [21] of his affidavit, that upon returning home on 3 April, 2020, and unexpectedly finding the trees being removed, the tree loppers advised that Ms Cayley had requested their removal. Mr Gervay notes that he told the loppers that "We have not given anyone permission to enter our property and remove any trees."
Mr Gervay also notes receiving no expert evidence from the applicant regarding tree health, likely foreseeable damage they may cause, or options other than removal, nor receipt of any evidence or documentation from the applicant to substantiate "that the Trees are likely to become unstable and topple if the roots are trimmed or cut". Both respondents express a belief that "the Trees do not pose any risk or potential injury to persons".
On 8 June, 2020, Ms Cayley provided Mr Gervay with a copy of legal advice received from Illawarra Legal Centre on 27 May, 2020. She included a copy in her application. Paragraph 3 and 4 read;
"We confirm our advice that you are legally within your rights to have the trees removed. We confirm our advice that should your neighbour become abusive or obstructive we would recommend that you contact NSW police."
"We confirm our advice that should you and your neighbour no longer be in agreement over this matter you could seek mediation at a Community Justice Centre but as the permit has been obtained from Council there is no real reason for you to do this as legally you already have permission to remove the trees."
Ms Cayley notes that on 9 June, 2020, roots were cleared from her sewer, and she included a copy of a tax invoice for the works with her Court application. Mr Gervay claimed to have not seen any such letter prior to seeing Ms Cayley's application, or been provided with "any documentation evidencing that the sewer was blocked with roots from the Trees".
[2]
The onsite hearing
The onsite hearing was attended by both parties, and the respondents were represented by J Denina and K Shurmer, both Solicitors. An inspection was conducted of the trees and sites.
The orders proposed by the applicant are;
1. "To uphold the Consent to Remove three lillypillies issued by Wollongong Council"
2. "To uphold the planting of three substitute native trees in a more appropriate place as per the Consent to Remove"
At question 14 of her application, Ms Cayley also claims $400, being "half the arborist's fee for work that Mr Gervay agreed to but stopped", and $90 for "half plumbers fee for clearing roots from sewer", based on a Tax Invoice supplied by Thirroul Plumbing, dated 9 June, 2020.
Both respondents submitted in their affidavits that they want the trees to remain, and claim compensation for the unauthorised removal of one of the trees. They note that they believe that the trees are healthy, provide amenity value, and contribute to their privacy.
The respondents also seek an Order for a fence to be erected along the common boundary, and for the associated costs to be shared equally.
The two remaining trees have been poorly pruned, down to a height of about six metres, and in stark contravention of Australian Standard AS4373;2007, Pruning of amenity trees. They are likely to develop extensive epicormic (suckering) regrowth throughout the canopy.
[3]
Jurisdictional requirements and discretionary matters
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.
The applicant has provided evidence that the requirement under s 8(1)(a) of the Act: to serve notice to the respondent more than 21 days prior to the proceedings, has been satisfied.
She has also satisfied s 10(1)(a) of the Act: to make a reasonable effort to reach agreement with the owners of the land on which the trees are situated, notwithstanding that the dispute has been protracted, and bitter, and agreement has appeared remote.
The next major test is posed by s 10(2) of the Act, which states:
(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.
If the jurisdictional test in s 10(2) is satisfied, s 9 of the Act empowers the Court to make any order it sees fit to remedy, restrain or prevent damage to property or injury to persons. If orders are to be made, the Court must consider a number of discretionary matters in s 12 of the Act.
[4]
Damage caused by roots
Small roots from the trees were growing towards, along and possibly under the edge of the applicant's concrete driveway, and photographs of this are included in the application. On site it was clear that these roots have been severed and were not causing damage, and any driveway uplift that may have occurred as a result of root penetration, is sufficiently insignificant as to not reduce the performance of the driveway.
While this damage may not necessarily be significant, nonetheless, 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.
Whether the damage is minor or major is irrelevant in answering the jurisdictional tests in s 10(2) but it can be relevant in determining what orders, if any, should be made.
Satisfaction of s 10(2) requires the Court to consider matters under s 12 before determining an application made under this Part. Subsection 12(b3) considers the trees' contribution 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.
The respondents have noted the amenity provided by the trees, and particularly the privacy they provide between the parties' dwellings. This is a reasonable and important consideration, particularly in the absence of a solid common boundary fence, and outweighs the impact of any minor driveway damage that may have been caused by the tree's roots.
With the roots now severed and clear of the driveway, I am also not satisfied that they are likely, in the near future, to cause damage to the applicant's property, where, in a guidance decision published in Yang v Scerri [2007] NSWLEC 592, in relation to damage, as a rule of thumb, the 'near future' is deemed to be a period of 12 months from the date of the determination.
Therefore, no orders will be made with respect to damage caused to the driveway by the tree's roots.
[5]
Sewer pipe obstruction
The applicant advised that "We also had problems with sewerage and Sydney Water have come out a few times and believe tree roots could be the problem". She also provided a plumbers receipt which noted; "clear blocked sewer - tree roots in line from lilly pilly trees adjacent".
The respondents questioned whether this sewer obstruction was caused by the trees, or perhaps by other vegetation.
In Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 at [62], Craig J said "something more than a theoretical possibility is required in order to engage the power under the Trees (Disputes between Neighbours) Act to make an order to remedy, restrain or prevent damage".
In Stevens v Russell [2016] NSWLEC 1233 at [40], Commissioner Fakes notes that:
"it is a common assumption that the mere presence or proximity of a tree is sufficient to conclude that the tree is the cause of the damage. It is not. It is necessary to find evidence to substantiate the assumption that the tree has caused the damage. In the case of alleged root damage, some excavation is usually required."
Though there may be a relationship between the tree roots and this sewer obstruction, there was no evidence provided of any excavation having been undertaken to locate and clarify a breach in the pipe, nor DNA or other testing to ascertain the genus of the vegetation. There are other species of trees, shrubs, weeds and vines, including Morning Glory, growing nearby, any of which could have been responsible for the pipe obstruction. I do not accept that either Sydney Water workers or the plumber have the required expertise to identify the source of the roots, when there is no indication that they had been traced from the pipe breach to their source.
Given that the onus rests with the applicant to prove their case, in the absence of other reliable evidence, I am, therefore, not satisfied that proximity alone is sufficient evidence to display a causal link between the tree roots and this sewer obstruction, and thus this element of the claim is set aside.
Even if a causal link was established between the tree roots and the pipe obstruction, s 12(i) of the Act requires consideration of the age and nature of the structure. Whether the sewer pipes are terracotta, and thus at least 30 years old, or more modern PVC, a break or crack or poorly attached pipe junction is almost always a precondition for root entry. Pipe repair or replacement can therefore protect against ongoing root incursion, and removal of trees can often be avoided.
[6]
Proximity to applicant's dwelling, leaves in gutters, and tree refuse on driveway
The reasons for pruning/removal noted on the Tree Management Permit application were "too close to neighbour's house, overshadowing, leaves filling gutters and creating slip hazard on driveway.
In Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (Robson), Preston CJ addresses the issues of encroachment of branches, and annoyance or discomfort which they may cause. At [169]-[171] of Robson, his Honour notes,
"169 At common law, although damage is necessary to complete the cause of action in nuisance, the type of damage required varies depending on the kind of nuisance involved. For nuisances of the first kind, causing encroachment as by roots and branches of trees, actual damage to the land (including property attached to or inherent in the ground) must be proved: see paragraph 56 above. For nuisances of the second kind, causing physical damage, actual physical damage to land (including property attached to or inherent in the ground) is also required: see paragraph 67 above. For nuisances of the third kind, causing unreasonable interference with the use and enjoyment of the neighbour's land, however, no actual financial loss or injury to health need be involved. The damage consists of the annoyance and discomfort caused to the occupier of the neighbouring land, such interference being of a material character: Clerk & Lindsell on Torts,19th ed, Sweet & Maxwell, London, 2006, [20-27], p 1178.
170 The types of actual damage required at common law for nuisances of the first and second kind would also constitute "damage to property on land" within s 7 of the Trees (Disputes Between Neighbours) Act 2006, with the possible exception noted earlier (at paragraph 166) that damage to the surface layer of the land may not be damage to property on land.
171 However, annoyance or discomfort to the occupier of the adjoining land occasioned by nuisances of the third kind is not "damage to property on the land" within s 7 of the Trees (Disputes Between Neighbours) Act 2006. Hence, leaves, fruits, seeds, twigs, bark or flowers of trees blown onto a neighbour's land might cause annoyance or discomfort to a neighbour, but unless they also cause damage to property on the neighbour's land they will not be actionable under s 7."
Therefore, encroachment of branches over a common boundary does not invoke the Court's jurisdiction, if the trees are not also causing damage as defined in the Act.
In this respect, the Court has published a Tree Dispute Principle in Barker v Kryiakides [2007] NSWLEC 292 which, at [20], states that:
"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, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering the removal of or intervention with an urban tree."
There is no remedy under the Act, therefore, for leaves in gutters, or tree refuse on the driveway. The issue of overshadowing was also resolved by the heavy pruning of the trees.
[7]
Risk of Injury
I am not satisfied that the trees present anything greater than a low risk of injury, which is an acceptable risk. While they are likely to re-establish a larger canopy, they were reduced to a height of about six metres, their canopy is enclosed, and is protected from heavy winds by neighbouring trees. There are no visual indications which an arborist may associate with instability in the ground, such as soil cracks or heaving, nor was a risk assessment provided by the applicant to substantiate her position. Therefore, no orders can be made in regards to risk of injury related to the trees.
The applicant has noted her right to sever roots of the trees up to her side of the boundary, the increased instability this would cause, and the increased risk that would result. Had this action been implemented, any orders contemplated under s 10(2), would require the Court to consider s 12(i), which states;
12(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.
Such action by the applicant to intentionally compromise tree stability would thus likely not assist her claim.
Overall, neither the driveway damage, sewer pipe obstruction, nor risk of injury satisfy the requirements of the Act, and, therefore, the Court has no jurisdiction to make orders.
I concur with Mr Gervay's understanding that, as advised by Council staff, "the Application is only for Council's permission to prune and/or remove the Trees and that if the trees were to be removed, then the landowner's consent and the property owner's permission would still be required to remove the Trees".
Local Government tree management operates under a permissive, rather than a coercive system. Council can grant permission for tree works, but under normal circumstances, cannot compel or order that they be completed. I was surprised by the advice from Illawarra Legal Centre to Ms Cayley, and recommend that professional advice is sought for clarity, if necessary.
Should the tree removal proceed on the basis of the permission gained from Council, I also concur with Mr Gervay that the permission notice specified replanting of three substitute specimens in the applicant's property.
The respondents sought an Order from the Court for a fence to be erected along the common boundary, and for the associated costs to be shared equally.
While Section 13A(1) of the Dividing Fences Act 1991 provides the Land and Environment Court (LEC) with the jurisdiction to hear and determine matters arising under this Act in proceedings to which this section applies,
(2) this section only applies if:
(a) application for the exercise of the jurisdiction is made in relation to proceedings under section 7 of the Trees (Disputes Between Neighbours) Act 2006 that have been commenced but not determined, and
(b) the tree that is the subject of those proceedings:
(i) has caused, is causing, or is likely in the near future to cause damage to a dividing fence, or
(ii) is part of a dividing fence and has caused, is causing, or is likely in the near future to cause damage to the applicant's property or is likely to cause injury to any person.
As Section 13A(2)(b) has not been satisfied, the Court has no powers to make orders for installation of a fence.
The applicant claimed compensation of $400.00 towards the cost of the completed tree removal and pruning, and $90 towards the cost of clearing the obstructed sewer pipe. As the applicant has failed to prove her case under the Act, no such orders can be made.
The respondents claimed compensation for the unauthorised removal of one of the trees. Commissioners do not have the powers to award such claims. Such claim would need to be pursued by notice of motion, and would be decided by the Registrar or a Judge of the Court.
[8]
Conclusion
I have inspected the trees and the site and reached the following conclusions.
1. Any damage that the trees have caused, are causing, or are likely to cause in the near future, is very minor, and outweighed by the respondents reasonable desire for privacy, and amenity provided by the trees, which must be considered under s 12 of the Act. The risk of injury is low and acceptable.
2. Section 10(2)(a) of the Act is therefore not satisfied, thus no orders can be made by the Court.
3. The extent and nature of the damage caused to the trees as a result of the pruning, will likely result in ongoing epicormic growth which requires regular remedial pruning. Nonetheless, provided that they are maintained, they are likely to remain viable and provide privacy and amenity in the medium term.
4. Remedy for the respondent, with respect to the erection of a boundary fence, may require action under the Dividing Fences Act 1991, s 7(1) of which provides that:
Adjoining owners are liable to contribute in equal proportions to the carrying out of fencing work in respect of a dividing fence of a standard not greater than the standard for a sufficient dividing fence.
[9]
Orders
The Orders of the Court are:
1. The application is dismissed.
[10]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 18 May 2021