Chew v Frykberg

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS): damage to sewer pipes – orders for removal of Fig tree – no damage by hedge proven – applicant failed to maintain own property – high hedges – sunlight is severely obstructed – hedge similar height upon applicant’s occupation – orders for pruning of hedge thus contrary to scope of Pt 2A – respondent values privacy and aesthetics – undesirability of interfering with the trees outweighs the applicant's interest in having the obstruction removed or remedied

Legislation Cited: Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 8, 9, 10, 12, 16, Pt 2A, ss 14A, 14B, 14C, 14D, 14E, 14F

Cases Cited: Barker v Kyriakides [2007] NSWLEC 292
Devile v Frith [2011] NSWLEC 1250
Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122
McDougall v Philip [2011] NSWLEC 1280
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Wisdom v Payn [2011] NSWLEC 1012
Yang v Scerri [2007] NSWLEC 592

Texts Cited: NSW Department of Justice and Attorney General, Review of the Trees (Disputes Between Neighbours) Act 2006 (November 2009)
Woollahra Development Control Plan 2015

Category: Principal judgment

Parties: Melissa Chew (Applicant)
Caroline Mary Frykberg (Respondent)

Representation: Counsel:
M Chew (Self-represented) Applicant)
H Charles (Solicitor) (Respondent)
Solicitors:
Howard S Charles & Co (Applicant)

File Number(s): 2024/370998

Publication restriction: Nil

Judgment

Background

1. COMMISSIONER: Melissa Chew (the applicant), and Caroline Mary Frykberg (the respondent), share a boundary between their properties in Vaucluse. Ms Chew’s land is a triangular corner block, with a dwelling facing east. The dwelling’s straight rear wall was parallel and close to the parties’ common boundary, which was oriented approximately north-south.

2. Mrs Frykberg’s property was located west of the common boundary with a deep front yard and a dwelling facing north. The east side wall of the respondent’s dwelling was parallel with the common boundary and with the rear wall of the applicant’s dwelling, which extended about 6 metres (m) further south than the respondent’s east side dwelling wall.

3. A formal rectangular hedge extended from near the southern end of Mrs Frykberg’s dwelling for about 14.9m along and beside the common boundary. The hedge enclosed the respondent’s conservatory, outdoor living area, and swimming pool at the rear of her dwelling and screened these areas from oversight from Ms Chew’s property, otherwise available through the applicant’s west facing study and bathroom windows.

4. The hedge comprised 15 xCupressocyparis leylandii ‘Leighton’s Green’ (Leyland Cypress trees) with an average height of 5.15m and trunk diameter’s ranging from 0.15-0.25m, at ground level. In 2007, the trees were planted in a broad raised garden bed to replace a hedge that had grown into disrepair. Murraya paniculata hedges*,* albeit not as tall*,* performed a similar role on the garden’s western side.

5. Two tall Ficus benjamina (Weeping Fig trees) that provided symmetry at the rear of Mrs Frykberg’s back yard, predated her 1997 occupation. One of the Fig trees (Tree 1), growing close to the common boundary, overhung Ms Chew’s garage. Since purchasing her property in April 2017, Ms Chew had endured multiple instances of tree root blockage and damage to her sewer pipes, which were primarily located behind her dwelling and under the rear yard close to the common boundary and flowed south to the sewer main beyond the applicant’s garage. Some sewer pipes also branched across Ms Chew’s back yard.

6. Though the genus or species of roots blocking pipes had not been identified, Ms Chew contended that Tree 1 was probably responsible and sought its removal. As the hedge was close to previously damaged sewer pipes and was allegedly also severely obstructing sunlight to her windows, Ms Chew proposed the hedge was also removed, or at least, significantly reduced in height to allow increased sunlight to enter the study and bathroom.

7. The respondent resisted intervention with the trees as she highly valued her privacy, aesthetic and environmental contributions of the trees, and the not insignificant costs involved with the proposed tree removal and or pruning. Further, Mrs Frykberg had previously sought permission from Woollahra Council (Council) for removal of the Weeping Fig trees, but Council had refused permission. In any case, the respondent was not satisfied that Ms Chew had provided sufficient adequate evidence to justify the proposed intervention with the trees.

8. The parties had conducted extensive negotiations, both directly and through Mr Charles, Mrs Frykberg’s Solicitor, but had reached an impasse. Consequently, Ms Chew made an application, pursuant to both s 7 of Pt 2, and s 14B of Pt 2A of the Trees (Disputes between Neighbours) Act 2006 (the Trees Act), seeking orders for removal of the Fig tree, and pruning or removal of the hedge trees.

9. The following abridged version of a chronology submitted by the respondent displays the intertwined nature of the disputed issues, which require separation for assessment under Pt 2 and Pt 2A of the Trees Act:

| Date | Detail | | 1997 | Respondent and late husband purchase and occupy property. Back yard contained 2 tall semi-mature Ficus benjamina at the rear, a tall hedge along the eastern boundary, and a swimming pool. | | 2007 | Respondent and late husband re-occupy the property after living overseas. Gardeners, ‘Beecraft’, replace the hedge as a previous hedge had fallen into disrepair. | | 2007- April 2017 | ‘Beecraft’ regularly maintained the hedge (including the back of hedge from neighbouring property) in a ’formal’ rectangular shape, at the respondent’s expense. | | April 2017 | Ms Chew purchased the adjacent property east of respondent. | | April 2017- April 2021 | ‘Beecraft’ regularly maintained the hedge (including the back of hedge from Ms Chew’s property, with applicant’s consent) in a ’formal’ rectangular shape, all at the respondent’s expense. | | 27 Sept 2019 | Applicant sends text to respondent advising that water main burst near her garage, and that Water Board workers said the pipe damage was due to tree roots. Applicant alleged ha****ving initial discussions with the respondent about Fig roots impacting her sewer pipes, prior to September 2019**.** | | 28 July 2020 | Respondent retained arborist, Guy Paroissien, to inspect and report on the Fig trees. | | 12 Oct 2020 | Paroissien report recommended removal of the Fig trees due to damage caused by their roots and the likelihood of further damage, arising from probable additional tree growth. | | Soon after | Respondent lodges application for removal of both Fig trees with Woollahra Council. | | 16 Dec 2020 | After inspection of respondent’s Fig trees, Woollahra Council arborist issued a refusal of removal notice. | | 1 April 2021 | Applicant emailed the respondent seeking reduction of hedge height. | | 11 May 2021 | Applicant, respondent and Mr Paroissien meet at applicant’s property to inspect the hedge and the obstruction of the applicant’s sunlight by the hedge. | | 25 May 2021 | Respondent emailed the applicant confirming ‘Beecraft’ would prune the hedge (including the back from the applicant’s property) on 28 May 2021. | | 27 May 2021 | Applicant emailed the respondent, withdrawing her consent for ‘Beecraft’ to access her property to prune the back of the hedge. | | June -July 21 | Parties attempt to arrange mediation through a Community Justice Centre but failed to agree on arrangements. | | 15 Oct 2021 | Applicant emailed the respondent copies of Killara and Rose Bay Plumbing tax invoices dated 1 October 2021 for $13,894.24. Applicant indicated intention to seek compensation for same at L&E Court. | | 3 Nov 2021 | Respondent’s Solicitor sends letter to the applicant which included an offer to reduce the hedge height by 200 millimetres, thin the hedge, and cut a 45° chamfer from near the front of the top of the hedge down towards the applicant’s boundary, in order to create a tunnel for sunlight. | | 21 March 2022 | Applicant declines the respondent’s offer of 3 Nov 2021 by email. | | 22 July 2022 | Respondent’s solicitor emailed applicant – seeks access for respondent’s arborist to inspect trees. On 1 August 2022, the applicant declined request for the respondent’s arborist to access trees. | | 20 Feb 2023 | Respondent’s solicitor emailed the applicant – an arrangement was made for each parties’ arborist to inspect both properties on 24 April 2023, but the meeting failed to proceed as the applicant’s arborist was running late. | | 23 June 2023 | Respondent’s solicitor advised the applicant that the respondent’s arborist could inspect at 10am or 2pm on any agreed day during August, September or October 2023. No reply was received from applicant. | | 14 July 2023 | “Killara Plumbing issues tax invoice for $10,450.00”. (though it wasn’t explicit in the chronology, this invoice was probably forewarded to the respondent). Respondent noted having no prior consultation with the applicant about such plumbing works. | | 5 Oct 2024 | Application filed with Court under Pt 2 and Pt 2A of Trees Act. |

The onsite hearing

10. The onsite hearing commenced in the respondent’s property with an inspection and assessment of tree condition, and consideration of the trees’ contributions to the respondent’s privacy and local environment. The Court next inspected Ms Chew’s rear yard and the corridor between the common boundary and the applicant’s dwelling, and clarified the various instances of damage to the applicant’s sewer pipes and related infrastructure. The nature and severity of obstruction of sunlight of two nominated dwelling windows was assessed from outside and within the applicant’s dwelling.

11. Ms Chew was self-represented in subsequent oral submissions while Mrs Frykberg was represented by her Solicitor, Mr Charles. Ms Catriona Mackenzie of Urban Forestry Australia provided an arborist report dated 23rd of December 2024, for the respondent, along with oral submissions at the hearings.

12. Ms Chew had sought leave to tender copies of emails, photographs, and invoices related to emergency sewer pipe clearance on 18 January 2025, a mere 10 days before the hearing, that was required while the applicant was overseas. Though Mr Charles opposed the tabling of these documents, given the imperative of civil jurisdictions to provide for just, cheap, and quick resolution of disputes, and because the documents were relevant and arose from an unpredictable emergency, I was not persuaded they should be excluded. Thus, they were labelled Exhibits F and G.

13. As Mr Charles had detected a flaw in his Alternative orders, he too sought leave to table substitute Alternative Orders “A”. Leave was similarly granted, and Alternative Orders “A” were labelled Exhibit 2. After an unscheduled adjournment on the morning of 28 January 2025, the hearing was completed onsite on 4 February 2025.

14. Ms Chew relied on the following Exhibits:

15. A. Tree Dispute Application – Form C

16. B. Tree Dispute Claim Details (Damage to property or injury to a person) – Form H

17. C. Tree Dispute Claim Details (High Hedges) – Form G

18. D. The applicant’s further evidence dated 26 November 2024

19. E. The applicant’s further submissions and evidence in response to subpoena and attachments, dated 2 December 2024, containing:

(i) screenshots of a message sent to Mrs Frykberg on 27 September 2019 advising that Fig roots had impacted both sewer pipes and the water main, (ii) handwritten data sheet of Mr Guy Paroissien of Landscape Matrix (the respondent’s former arborist) from inspection of 28 July 2020, which records the history of Fig tree roots impacting the sewer pipes in 2019, and (iii) abridged report of Mr Paroissien dated 12 October 2020, containing Appendix A with Photographs 1 & 2 only and without Appendix B.

6. F. Email from house-sitter on 20 January 2025, about emergency work by ‘Local Plumbing Heroes’ on 18 January 2025.
7. G. Email from ‘Ronnie’ of ‘Local Plumbing Heroes’ on 24 January 2025 with colour image of broken PVC pipe from ‘Pipecam’, and invoice for emergency work of 18 January 2025 for $2219.80 – including toilet removal and ‘jet blasting’ to clear roots.
8. H. Written submission tendered at final hearing of 28 January 2025 containing caselaw references.

Applicant’s Proposed Orders:

15. Under Part 2 of the Trees Act, Ms Chew proposed the Court make the following (summarised) orders:

The respondent shall remove Ficus benjamina (Tree 1) adjacent to the applicant’s garage. If removal is not permitted, the respondent shall prune overhanging or encroaching branches to attain a 2m clearance around the applicant’s garage in accordance with ‘2.7 Pruning public trees for clearances’, in Woollahra Tree Management Policy, 2011 (Exhibit A at pp 11).

The respondent shall prune the hedge to attain a 2m clearance around the applicant’s residence in accordance with ‘2.7 Pruning public trees for clearances’, in Woollahra Tree Management Policy, 2011 (Exhibit A at pp 11), or

The respondent shall remove the hedge at the common boundary.

Applicant’s (summarised) orders proposed under Part 2A:

Where the hedge is in front of the applicant’s windows, the respondent shall reduce the height of the hedge by one metre and shall maintain the hedge so that it does not exceed this reduced height, and

Removal of the hedge tree (H14) in front of the applicant's study window (window 2) at the northern end of the hedge.

16. Mrs Frykberg relied on the following Exhibits:

17. Written submissions dated 23 December 2024.

18. Respondent’s new alternative orders labelled Exhibit “A”.

19. Expert report of Catriona Mackenzie of Urban Forestry Australia dated 23 December 2024, which contained:

(i) CV (Annexure A), (ii) Letter of Instruction from Mr Charles (Solicitor) dated 3 December 2024 (Annexure B), (iii) Copy of Ms Chew’s Exhibit E from 2 December 2024, including entire Paroissien arborist report of 12 October 2020, complete with Appendix A with Photos 1-14 and Appendix B – Tree Data Summary (Annexure C), (iv) Mr Paroissien’s text to Mrs Frykberg dated 12 June 2021, proposing hedge height reduction of 200mm and 45° chamfer at rear to create tunnel for sunlight (Annexure D), (v) Mackenzie report photographs – Plate 1-22 (Annexure E), (vi) Ten Nearmap aerial images of hedge between 2009 and November 2023 (Annexure F), (vii) Five Google Streetview’s and Ms Mackenzie’s images of hedge between 2013 and November 2024 (Annexure G).

4. Affidavit of Caroline Mary Frykberg, dated 19 December 2024.
5. Respondent’s exhibit bundle “CMF1”, dated 19 December 2024.
6. Respondent’s further submissions dated, 31 January 2025.
7. Respondent’s response of 2 February 2025 to applicant’s case Response to authorities in Exhibit H.

Respondent’s Proposed Alternative Orders (“A”)

17. If the Court determines that s 9 and s 14D of the Trees Act are satisfied, the respondent consents to the following orders:

18. At the respondent’s expense, her contractors shall carry out routine gardening work upon the applicant's property, two times per calendar year to the hedge overhang (subject of these proceedings) to:

(a) reduce the height of the hedge on each occasion, if required, back to 4.4 metres as measured from the respondent’s garden bed and 4.25 metres as measured from the concrete surface level on the applicant’s side; (b) cut back the hedge horizontally to the common boundary on the applicant side; (c) chamfer the top of the hedge at 45° on the applicant’s side; (d) remove all cuttings trimmings and debris caused by the above work from the applicant's property; and (e) on those occasions to also remove any fallen branches, bark or leaves from the Fig tree located on the respondent’s property.

2. The respondents gardening contractors must at all times of entry onto the applicant’s property maintain contractor’s all risk insurance.

3. The respondent or her gardening contractors must notify the applicant not less than 14 days prior to each proposed date for work.

4. In the event the notified date is unavailable to the applicant, she must mutually agree with the gardening contractors on an alternative date.

5. The gardening work must be carried out on a weekday commencing not before 8:00 AM and completing not later than 5:00 PM.

6. The applicant must provide reasonable access to her property to enable the work to be carried out, including for the respondent’s gardening contractors to bring onto the applicant’s property all necessary equipment.

7. The parties be at liberty to, by mutual written agreement, vary any of the orders (1)-(6) above.

8. Pursuant to s 16 of the Trees Act, these orders are only for the benefit of and binding upon the applicant and the respondent of these proceedings, and not any successors in title.

9. The application under Pt 2 shall be considered initially.

Jurisdictional requirements

19. Part 2 of the Trees Act is enlivened, and relevant sections are set out below;

Part 2**– trees** that cause or are likely to cause damage or injury

7 Application to Court by affected land owner

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.

…

9 Jurisdiction to make orders

(1) The Court may make such orders as it thinks fit to remedy, restrain or prevent damage to property, or to prevent injury to any person, as a consequence of the tree the subject of the application concerned.

(2) Without limiting the powers of the Court to make orders under subsection (1), an order made under that subsection may:

(a) require the taking of specified action to remedy damage to property, or

(b) require the taking of specified action to restrain or prevent damage or, if damage has already occurred, further damage, to property, or

(c) require the taking of specified action to prevent injury to any person, or

(d) require the making of an application to obtain any consent or other authorisation referred to in section 6 (1) (a), or

(e) authorise the applicant concerned to take specified action to remedy, restrain or prevent damage or (if damage has already occurred) further damage to property, or

(f) authorise the applicant concerned to take specified action to prevent injury to any person, or

(g) authorise land to be entered for the purposes of carrying out an order under this section (including for the purposes of obtaining quotations for the carrying out of work on the land), or

(h) require the payment of costs associated with carrying out an order under this section, or

(i) require the payment of compensation for damage to property, or

(j) require the replacement of a tree that the Court orders to be removed and for the new tree to be maintained to a mature growth.

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.

…

12 Matters to be considered by Cour****t

Before determining an application made under this Part, the Court is to consider the following matters:

(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.

Applicant’s submissions:

20. At the procedural hearing of 12 November 2024, Ms Chew was granted leave to subpoena Mr Paroissien’s report for Mrs Frykberg of 12 October 2020 and associated worksheets from Mr Paroissien’s July 2020 inspection, which were all included within Exhibit E. In the interim between writing his report and the current proceedings, Mr Paroissien had retired.

21. In Exhibit E, Ms Chew noted that Mr Paroissien’s handwritten “data sheet for inspection of 28/7/2020 records the history of fig tree roots impacting sewer pipes in 2019”. Ms Chew said, “[h]e wrote on the side of the document “September 19 water pipes and damaged sewer line” (along with the applicant’s address). Ms Chew claimed that Mr Paroissien, “accepts that my sewer pipes and water main have been impacted by fig roots, on page 9 of his report. He confirms the fig tree structural root zone of 2.9 metres, where the sewer main pipe is well within that zone (page 4)”.

22. Exhibit E included a text message from Ms Chew to Mrs Frykberg on 27 September 2019, which said;

“[t]he water main near my garage burst about two weeks ago. The water board repairers said it was likely that the pipe burst due to tree roots. Given the previous issues with my sewerage pipes, I had arranged an arborist to visit this Thursday the 3rd of October 2019 to give me some advice on how I can avoid further issues by managing any roots around the pipes. Perhaps it would be best to wait for their advice?”

23. Ms Chew said Mr Paroissien’s Tree Data Summary (at attachment 4 of Exhibit E), “confirms the majority of the fig tree canopy is over my property and the 5% to 10% of canopy is deadwood.” On this basis, Ms Chew contended, “[t]his risks damage due to fallen dead wood. This is the cause of the damage to the roof on my garage and risks further damage”. Ms Chew alleged past pruning of the tree had left a disproportionate amount of the Fig’s canopy over her garage and land.

24. In Exhibit B, Ms Chew reiterated that branches that fell from Tree 1’s overhanging canopy had damaged her garage roof and said Tree 1 was less than 1m from the garage and within 1.5m of a sewer main, when “general advice is that the weeping fig should not be planted within 7.5m of a structure, given its size at maturity and invasive root system”.

25. Ms Chew added, the roots of Tree 1 “are invasive and contributed to damage to sewer pipes” and “[t]he invasive nature of the roots of this tree are demonstrated by the roots causing similar damage” to two PVC water pipes in the respondent’s property, as described by Mr Paroissien in the tree removal application to Council of 16 December 2020. Ms Chew was aggrieved the application to Council did not “reveal the history of the fig’s tree roots damaging my sewer pipes”, notwithstanding allegedly having personal discussions with Mrs Frykberg and Mr Paroissien when they were preparing the Council application.

26. In Exhibits B and D, Ms Chew provided plumbing invoices as evidence of multiple incidents of damage and blockage of her sewer pipes, subsequent to the burst water main of 27 September 2019, which Ms Chew alleged was reported by Water Board repairers as being caused by roots.

27. The initial invoice of 11 March 2020 from Mc Elroy Plumbing, noted using a water jet to, “cutaway and clear tree roots from sewer pipes on the outlet of the toilet” and “[c]lear blocked sewer gully”. I understood this toilet was replaced in subsequent renovations.

28. I understood a second invoice for $13,894.24 from Killara and Rose Bay Plumbing on 6 October 2021 covered root clearance and replacement of sewer pipe that ran diagonally across the back yard and joined the applicant’s main pipe running parallel to the boundary towards the street at the rear. Appendix 5 of Exhibit B included two images extracted from Pipecam of dense root congestion within the pipes associated with these plumbing works. A third invoice for $10,450.00 was, to the best of my understanding, for works by Killara Plumbing on 14 July 2023, which comprised removal of tree roots and renewal of a “faulty section” of PVC pipe at the back of the applicant’s house and replacement with new PVC sewer pipe.

29. On 20 January 2025, Ms Chew emailed the Court with advice of emergency plumbing that had been required at her property while she was currently overseas. Ms Chew’s house sitter had advised her on 18 January 2025 that the toilet at the southern end of her dwelling had overflowed as a result of blockage by roots in the sewer pipe. Clearing the sewer pipe blockage required removal of the toilet and the total cost was $2,219.80. Pipecam investigation conducted with the works allegedly identified a broken PVC pipe about 8m south of the toilet, in close proximity to the base of the Fig tree. Invoices and a Pipecam image were included in Exhibits F and G, and Ms Chew claimed substantial additional repairs will be required.

30. Within her chronology, Mrs Frykberg referred to emails from the applicant with copies of the plumbing invoices of 6 October 2021 and 14 July 2023, which noted Ms Chew’s intention to claim compensation for these costs. However, within Exhibit B, at Questions 14-15, Ms Chew did not claim compensation for these invoices nor other plumbing invoices included with the application. At the hearing, Ms Chew confirmed she was not seeking compensation. Rather, she was seeking the removal of Tree 1.

31. Ms Chew also proposed pruning the Leyland Cypress hedge trees to provide a clearance of 2m from the dwelling, or removal of the hedge. Ms Chew alleged the Leyland Cypress trees significantly encroached on her dwelling’s roofline and caused a risk of damage to the guttering and roof of both the dwelling and the garage. The applicant claimed the overhanging foliage contributed to gutter litter and blockage, and had displaced gutter guard, which additionally contributed to gutter blockage, gutter overflow, and water damage to the roof.

32. Whilst Ms Chew recognised her responsibility to clean gutters of debris and blockage, she contended the overhang of the hedge and proximity to the roofline prevented safe use of ladders or erection of scaffolding to enable essential gutter maintenance. Ms Chew noted the hedge was less than 1m from sewer pipes that run between her dwelling and the boundary and suggested “general advice” is that the Cypress trees should not be planted within 6m of sewer pipes.

33. Ms Chew acknowledged the Fig tree’s contribution to the landscaping and garden design of Mrs Frykberg’s rear yard and its amenity when viewed from the street, but considered that the negatives associated with the tree outweighed these positive contributions.

Respondent’s submissions:

34. Mrs Frykberg opposed all orders proposed by Ms Chew, and submitted Alternative orders “A” (see [17]), should s 9 and or s 14D of the Trees Act be satisfied.

35. The respondent claimed an absence of expert evidence was tendered by the applicant. Specifically, Ms Chew had chosen not to put into her evidence any arborist report or advice from an arborist or similar relevant expert. The respondent said, this was in spite of the applicant's evidence and communications indicating that on at least three separate occasions she arranged for an arborist inspection. Firstly, on 3 October 2019, to report on piping at the rear of a property; secondly, in May 2021, Ms Chew indicated she would retain her own arborist; and thirdly on and after 24th of April 2023, when Ms Chew failed to agree on dates proposed by the respondent for inspection of the respondent’s property by an arborist the applicant had purportedly retained.

36. With respect to the Fig tree (Tree 1), the respondent contended the applicant had not made a reasonable effort to reach agreement with the respondent as required under s 10(1)(a) of the Trees Act because:

37. prior to filing her application on 5 October, no formal notice was given to the respondent that an order would be sought for removal of the Fig tree,

38. the applicant did not, prior to filing her application, attempt to reach an agreement with the respondent about the Fig tree per se. Although the applicant by her text message to the respondent, of 27 September 2019, alleged damage to the water main at the rear of their properties and some of her sewerage piping, she did not specifically refer to the Fig tree; and

39. after her September 2019 text message, the primary focus of the applicant’s communications related to the Leyland Cypress hedge.

40. The respondent submitted the applicant has failed to tender convincing expert or lay evidence that the Fig tree has caused, is causing, or is likely in the near future, to cause damage to her property as required by s 10(2)(a) of the Trees Act. Except for her lay opinion, the applicant is unable to definitively determine that the damage to the piping was caused by the Fig tree or the hedge trees, and similarly to establish the damage to the garage roof was caused by the branches falling from the Fig tree.

Damage to the applicant's sewer pipes

38. The respondent reiterated the applicant’s failure to tender any expert evidence to demonstrate the causal link between the Fig tree roots and the damage to her sewer pipes. Additionally, the respondent contended that the applicant’s attempt to infer damage to her pipes through reference to damage to the respondent’s piping (at para 4(b) of Exhibit B/ Form H) does not satisfy the test for a causal link between the damage to the applicant's piping and the Fig tree.

39. The respondent contended the applicant’s emails and early discussions on site focused on the hedge and thus it was reasonable for the respondent to interpret references to trees in the plural as meaning the trees comprising the hedge. Further, the three tax invoices from Killara and Rose Bay Plumbing, Killara Plumbing, and McIlroy Plumbing, made no express reference to the Fig tree as the source of the alleged root damage to the applicant’s sewer pipes, and the work carried out was not located near the Fig tree.

40. The respondent claimed the photographs tendered by the applicant do not establish the roots of the Fig tree or the hedge trees to be the cause of the collapse of the piping.

41. The Killara and Rose Bay Plumbing tax invoice of 1st of October 2021 refers to “earthenware piping” and “poorly installed piping that has been installed by others”. When Mr Charles requested the applicant provide particulars from the plumbers as to what was meant by those references in the said invoice, Ms Chew replied by email on the 21st of March 2022 that, “It is not within the expertise, nor is it the role, of any plumber to provide a statement regarding the direction of tree roots or species of tree roots in a sewer pipe.”

42. Mr Charles claimed his intent was to gain further clarification of the plumbing contractor’s own representations about installed plumbing, not an analysis of any roots present in the vicinity of the piping. Therefore, the respondent submitted these are matters within the expertise and experience of a plumber and having been raised in the applicant's own material, they were reasonable particulars for Mr Charles to request.

43. The respondent noted that the applicant’s plumbing invoices variously referred to “new PVC piping and fittings” and “existing PVC pipe work” and references to backfill and concrete. Mr Charles submitted that damage to the old earthenware piping has been removed or otherwise repaired, with the consequence that any damage which was caused (by tree roots from the respondent’s property or otherwise) has been arrested and there is no residual evidence that would satisfy the Court that further such damage is likely to be caused to the applicant’s property in the near future.

44. Mr Charles claimed this submission was corroborated, in the applicant’s evidence, by the opinion of Council’s arborist, Simone Woodman, in her Determination for refusal to remove the Fig tree dated the 16th of December 2020. Mrs Woodman found the tree is a mature specimen in good health, with a well-established root system that was unlikely to have an impact on structures, including the applicant’s garage. Mrs Woodman commented that evidence such as an engineer’s report or further arboricultural investigation would be required to substantiate any claim of damage to structures such as the applicant's garage.

45. Mr Charles noted the relevance of Mrs Woodman’s comments and views in her letter to the Court dated 10 December 2024, which firmly reinforced her findings and opinions after being served with the application and supporting documents, as referenced in para 99 of the respondent’s affidavit (Exhibit 4) and exhibited in “CMF1” (Exhibit 5) at pp 48-49. The respondent also stressed the absence of evidence of any application or direct complaint to Council in regard to Council’s opinion about the Fig tree, by Ms Chew.

46. The respondent submitted that regardless of Ms Chew’s contentions to the contrary in Form H (Exhibit B), the Paroissien report referred specifically to the Fig tree, adjacent retaining walls and other infrastructure (in the respondent’s property) and “accompanying photograph 5 which illustrates the location of sewer repairs and the garage on the applicant's property”.

47. Mr Charles contended, in respect to Ms Chew’s allegations of damage to her sewer pipes, that the applicant’s case is insufficient to engage s 10(2)(a), and therefore, no order should be made under s 9 of the Trees Act. To reinforce this position, the respondent noted the terms of the Woollahra Development Control Plan 2015 (DCP) at E3.3.3 which says:

“Generally, approval will not be given where the proposed work is for … [r]emoval of a tree for minor damage to infrastructure, such as retaining walls and pipes, where the damage can be repaired or the infrastructure restored with the retention of the tree.”

48. The respondent submitted that the applicant’s request for the Court to make an order for tree removal is thus inconsistent with the Council's Tree Management Policy.

49. If, however, s 10(2)(a) is engaged, and the Court contemplates orders, the respondent relied upon the following matters contained at s 12 of the Trees Act:

50. The respondent’s proper conduct in applying to Council for consent for removal of both Fig trees, which was refused (s 12(b)).

51. The inconsistency of the orders sought by the applicant with the tree management provisions of the DCP (s 12(b)).

52. Tree 1 provides considerable appeal to the respondent through its contribution to her landscaping, garden design, amenity and protection from the sun to the land on which it is situated (s 12(b3)).

53. Being a mature Fig tree, Tree 1 contributes to the local ecosystem and biodiversity as a haven for bird life and other wildlife and insects. It also contributes as a carbon sink and source of oxygen (s 12(d)).

54. With respect to contributions to damage by anything other than the tree, (at s 12(h)(i)), the fact the sewer pipes were aged earthenware that were “poorly installed’ has contributed to any failure and the pipes would have had to be replaced “at some stage”.

55. The failure of the applicant to explicitly raise the issue of the Fig tree with the respondent in the time between her text message in September 2019 and the filing of her application (at s 12(h)(i)).

56. The respondent did not plant the Fig tree. It was already established and reasonably mature by 1997, when the respondent purchased her property, and even more mature when the applicant purchased her property in 2017 (s 12(j).

57. The relatively high cost which the respondent would incur in removing the Fig tree and reinstating the area of her garden and landscaping which would be affected by the tree’s removal (s 12(j).

Damage to the applicant's garage

50. The respondent noted the opinion of Mrs Woodman, in Council’s Determination of Mrs Frykberg’s 2020 tree removal application, “it would be unlikely that the root system from the trees would have an impact on structures such as the swimming pool and neighbouring garage if they haven't already.”

51. Mr Charles claimed the applicant had not tendered persuasive evidence as to Fig roots causing garage damage and that evidence of roof damage was limited to one small hole in metal sheeting in the corner of the garage roof. He added that branches may have fallen onto the roof from a Council Brush Box tree growing adjacent to the garage and that the Paroissien report had deemed a deadwood level in the tree of 5-10% to be relatively low.

Findings

Section 10(1)(a)

52. The respondent claimed the applicant failed to make a reasonable effort to reach agreement, at s 10(1)(a) of the Trees Act. However, I find to the contrary, for the following reasons:

53. Mr Charles claimed the applicant had not given Mrs Frykberg formal notice of her intention to apply for orders for removal of the Fig tree (Tree 1), but this is not an explicit requirement for satisfaction of s 10(1)(a). In 2020, in the Paroissien report, Tree 1 was described as about 14 m tall with a canopy spread of about 10 x 12m, with dual trunks, the diameter at breast height (DBH) of which, were 0.48m and 0.56m, respectively. Thus, Tree 1 was a well-established, large tree which was located close to the common boundary and the applicant’s sewer pipes and garage.

54. In September 2019, Ms Chew had texted the respondent about tree roots in the water main and in her sewer pipes at the rear of her property near the Fig tree. Miss Chew claimed to have discussed the tree roots in her sewer pipes with the respondent and Mr Paroissien in late 2020, around the time they were preparing the respondent’s application to Council for removal of both Fig trees due to damage to pipes, retaining walls, and other infrastructure, and the likelihood of future damage. This claim was not disputed by the respondent.

55. In his report of October 2020, Mr Paroissien referred to both Fig trees as representatives of “an environmental nuisance species” even though he noted they were both healthy, of “moderate to high visual significance”, and “not considered at risk of failure in the short term”. He wrote of damage the trees had caused and the likelihood that they would cause future damage. Relying on the expertise I bring to the Court, as an arborist with 45 years’ experience, it is in the nature of large fig trees to conflict with adjacent infrastructure and often cause damage. While such damage is by no means guaranteed, large fig trees are renown for this propensity, and I would be surprised if this wasn’t the basis for the very experienced Mr Paroissien describing the Fig trees as being in “an environmental nuisance species”.

56. In this context, it is reasonable to consider that Tree 1, the Fig tree in close proximity to the applicant’s sewer line, would reasonably be deemed a likely cause of the applicant’s ongoing sewer pipe damage by tree roots, regardless of whether Ms Chew made this explicit. Therefore, I am not satisfied that it should or would have come as a surprise when Ms Chew’s subsequent application alleged the Fig tree had caused damage to her sewer pipes, as well as the Cypress hedge.

57. Regardless that Ms Chew’s subsequent focus may have primarily been on obstruction of sunlight by the Cypress hedge, it is perhaps disingenuous to suggest that the application should be limited to the Cypress hedge in terms of tree roots in the applicant’s sewerage system, notwithstanding that Ms Chew was not aware which trees were responsible for the damage. There is no requirement to correctly identify specific causes of damage, provided it is a tree owned by the respondent. The Trees Act may be engaged by one cause of damage, even when it is a minor cause, or one of many causes.

58. In Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (Robson), Preston CJ provides a framework for consideration of the ‘reasonable effort’ required to satisfy the Trees Act. At [194]-[195], his Honour states:

“[194] The Trees (Disputes Between Neighbours) Act 2006 does not specify any particular time at which the applicant must make a reasonable effort to reach agreement with the tree landowner, other than fixing the end point by requiring that the Court cannot make an order under the Act unless it is satisfied that the applicant has made a reasonable effort to reach agreement with the tree landowner. Hence, although it would be preferable for an applicant to make a reasonable effort to reach agreement with the tree landowner before making application to the Court, so as to avoid court action, there is no requirement to do so and a reasonable effort to reach agreement can be made after making the application at any time up until the Court determines the application.

[195] The language in s 10(1)(a) of the Trees (Disputes Between Neighbours) Act 2006 that the applicant has made “a reasonable effort to reach agreement” is less demanding than the language used in provisions of other statutory enactments which require parties to make reasonable attempts to reach agreement in relation to matters claimed in the court originating process.”

59. The requirement at s 10(1)(a) to make “a reasonable effort to reach agreement” does not prescribe the conduct of an applicant, or how an applicant negotiates, nor does it require compromise or preclude an applicant from adopting an intractable position. Regardless of the respondent’s claim that, “the applicant did not, prior to filing her application, attempt to reach an agreement with the respondent about the fig tree per se” (Exhibit 1, para 9), this is not an explicit requirement of s 10(1)(a), as his Honour explained above, in Robson*;* at [194].

60. Though in earlier correspondence, the applicant displayed an intention to claim compensation for cost of repair of sewer pipe damage, she elected not to do so in the application. Along with Ms Chew’s goodwill at the hearing, I consider this decision helped narrow the issues under consideration and thus represented a tangible example of a “reasonable effort” to reach agreement. In this light and considering his Honour’s interpretation in Robson, I am satisfied that Ms Chew made a reasonable effort to reach agreement with the owner of the land on which the trees are situated, such that s 10(1)(a) of the Trees Act is engaged.

61. Section 10(1)(b) is satisfied as the applicant met the requirements of s 8 of the Trees Act. This required the applicant to serve the application and proposed orders on the respondent and on Council. As well as evidence of service on Council, Ms Chew was granted leave for substituted service on the respondent and provided evidence to show such service was executed appropriately.

Section 10(2)(a) of the Trees Act

62. Notwithstanding earlier claims in her application about the close proximity of the garage to Tree 1, Ms Chew did not pursue her claim regarding root damage to the garage, or damage to the garage roof as a result of sticks falling from the Fig tree. Rather, Ms Chew primarily focused on damage to the sewer pipes.

Pruning for 2m clearance

63. The applicant’s initial proposed orders under Pt 2 of the Trees Act (see [15]), for 2m clearance of Tree 1 from the garage roof (order (1)) and for 2m clearance of the Cypress trees from the dwelling roof (order (2)), were based on section 2.7 of Woollahra Tree Management Policy. During oral submissions, Ms Mackenzie contended this guideline only applied to clearances of public trees, not to private trees on private land. I confirmed this at the hearing. Consequently, there was no reasonable basis to provide satisfaction of the applicant’s claim for a 2m clearance of the Fig tree from the garage and the Cypress hedge from Ms Chew’s dwelling roof.

Sewer pipe damage

64. During the site inspection, the Court considered the nature, location, and sequence of multiple instances of sewer pipe and infrastructure damage. Whilst my notes no doubt contained imperfections about some details, I am satisfied I gained a sound understanding of the circumstances for the purpose of assessment of Ms Chew’s application.

65. Though the applicant had not provided an arborist report, nor identified the species of roots that caused past sewer pipe blockage, and the separate yet cumulative damage was nuanced and involved some uncertainty, I was satisfied, on the balance of probabilities, that the Fig tree (Tree 1) was a major cause of the damage to the applicant’s sewer pipes. Therefore, s 10(2)(a) of the Trees Act is engaged.

66. Firstly, I was satisfied that two images in Exhibit 5 of Exhibit B, from Pipecam investigations during repairs in October 2021, displayed tree roots blocking the applicant’s sewer pipes.

67. A second factor informing my conclusion was viewing the applicant’s clear, original, relatively large photographs that were taken near the common boundary during the plumbing works at the rear of the applicant’s dwelling in July 2023. Ms Mackenzie, who also viewed these photographs, had noted that smaller, grainy, low quality copies of these photographs, included in Exhibit D, were of little benefit, but I found these higher quality images very helpful aids.

68. I was satisfied these photographs displayed roots averaging around 100mm diameter running roughly parallel and in firm contact with adjacent PVC pipes of a similar size and smaller but not insubstantial branching roots that were wrapped around the PVC pipes. Considering the size of the roots, the nature of their branching and grafting, their bark colour, and the appearance and pattern of lenticels and finer roots, I was satisfied they were fig roots. I was also satisfied, on the balance of probabilities, the roots were from Tree 1, rather than from a relatively small Ficus pumila vine growing near the hedge in the respondent’s property, apparently with unusually low vigour.

69. Both parties noted that blockages by roots prior to and including October 2021, primarily impacted earthenware pipes or poorly installed PVC pipes, but I was satisfied that repairs during and subsequent to October 2021 comprised replacement of such pipes with ostensibly well installed PVC pipes.

70. Mr Charles contended that the pipes replaced in July 2023 may also have been earthenware. However, I was persuaded by the applicant’s claim that the root blockages at the rear of the dwelling in July 2023 impacted PVC pipes that were found with large roots wrapped around them as I was satisfied the major roots in the applicant’s photos from these works had been in situ for many years and long predated the works of 2023. I was also satisfied the roots probably caused pipe damage that, at least partly, facilitated the PVC pipe incursion by roots.

71. The respondent contended that the root incursion and damage of July 2023 behind the applicant’s dwelling was unlikely to be caused by Tree 1 as the damage was too far away from the tree. However, the excavation of trenches for pipe access during the various works of the prior 3 or 4 years had provided availability of oxygen and moisture subsequent to excavation and decompaction and thus opportunity for root growth in and along the trenches. Indeed, it is in the nature of tree roots to do precisely this, and, as aforementioned, fig roots are renowned for this propensity.

72. While anecdotes are only useful as illustrative examples, many years ago the Senior arborist at Centennial Park was shown roots causing structural damage at the back of a deep block of land in Lang Road. The property owner had traced the primary root back up his property to near the bottom of his long driveway, then straight along a trench that had long ago been excavated down the middle of his driveway for pipe installation, to the front of his land. The root passed under a broad nature strip, then under Lang Road, into Centennial Park and onward to connect to a large Fig tree. The damage in the back yard was occurring perhaps 100m from the base of the Fig tree.

73. It was thus unsurprising to find the fig roots some distance from the canopy of Tree 1. A fundamental tenet of arboricultural knowledge is the tendency of tree roots to primarily occupy soil within about 500mm of the surface, and or wherever oxygen and moisture are sufficiently available. Further, it is not uncommon for roots to spread laterally, like bendy spokes of a ‘Dali inspired’ wheel, some 3, 4, 5, or more X the breadth of a tree’s canopy, when soil and environmental conditions are favourable.

74. The respondent reasonably submitted that the likelihood of roots gaining entry to the pipes is eliminated or severely minimised now that earthenware and poorly installed PVC pipes have been replaced with PVC pipes, and installed with high quality workmanship.

75. In this case, however, based on the applicant’s photographs taken during the 2023 plumbing works, the roots of Tree 1 clearly appeared to have occupied trenches in close proximity to the PVC sewer pipes. Therefore, I am not persuaded the new PVC pipes are invulnerable. This has already been the case with the damage to PVC pipes that were repaired and replaced in July 2023. Again, this is the reality with the recent root blockages of January 2025, as evidenced by damage to PVC pipes, allegedly close to Tree 1, being apparent in the applicant’s photograph taken from the Pipecam footage (Exhibit G).

76. Notwithstanding that high quality attachment of pipe junctions minimises the likelihood of root incursion, when substantial roots thicken in firm contact with PVC sewer pipes, they often lever or bow pipes and cause attachments at junctions to fail. Only a small gap is required for moisture to seep from a junction and for fine roots to detect the moisture and increase growth under the relatively favourable conditions. The roots do not ‘invade’ the pipe, but unsurprisingly, intermittent moisture, oxygen, and nutrients which are characteristic of sewer pipes, provide hospitable conditions for rapid growth of tree roots, particularly roots that come from a large established Fig tree such as Tree 1.

77. Additionally, although Ms Chew had by now replaced at least the vast majority of her earthenware pipes with PVC, the junctions between PVC pipes and the earthenware pipes of the sewer main, and perhaps also between PVC pipes and residual earthenware pipes extending beneath the applicant’s dwelling, are difficult to seal and remain vulnerable to further root incursion.

78. Consequently, I am satisfied that s 10(2)(a) of the Trees Act is also engaged by the likelihood of damage to the applicant’s sewer pipes in the near future. While such damage may not occur within 12 months in line with the usual ‘rule of thumb’ applied from Yang v Scerri [2007] NSWLEC 592, longer periods than 12 months are not excluded from ‘the near future’. This is shown below; at [14]:

“Ordinarily, the near future would involve a time period extending from the date of determination of the application to 12 months. After 12 months, it would be difficult to describe a period as being “in the near future” or being close in time to the date of determination of the application. We say "ordinarily" because there may be, in the particular circumstances of the case, reason to adopt a longer period than 12 months….”

79. In this case, damage to the applicant’s sewer pipe has occurred in or around 2019, in 2021, 2023, and again in early 2025. The damage is not trivial. It causes serious inconvenience, genuine health and hygiene implications, and involves considerable cost for repairs which are often required in emergency circumstances. There are various past cases where such damage that may reasonably be expected to occur within about 2 years or even in the medium term, have been considered to be ‘likely damage in the near future’.

Section 12 of the Trees Act

80. With respect to the respondent’s submissions regarding s 12 of the Trees Act, I readily accept that Mrs Fryzberg undertook proper conduct in applying to Council for consent for the removal of the Fig trees, which was refused.

81. I also note that both Mr Paroissien and Ms Mackenzie are arborists with considerable qualifications and experience. In his report, Mr Paroissien recommended removal of both Figs, based on infrastructure damage they had caused, and further damage he considered them likely to cause, given that they were far from full-sized. During the hearing, under cross examination from Ms Chew, Ms Mackenzie acknowledged that it was “probable” the applicant’s recent 2025 sewer pipe damage was caused by Tree 1.

82. As to the inconsistency of the orders sought by the applicant with the tree management provisions of the DCP, certainly when assessed in the present tense, I do not consider the cumulative damage to the applicant’s sewer pipes and damage to the respondent’s infrastructure, which jointly have cost many tens of thousands of dollars to repair, and invoked genuine health and safety implications, may reasonably be considered of little consequence. Whilst I respect Council’s difficult role maintaining the community’s trees intact, in light of the applicant’s evidence of persistent sewer pipe damage, I found Mrs Woodman’s largely unaltered position in her letter to the Court dated 10 December 2024, surprising, and of little assistance to the Court. Having said this, though the application documents were provided to Council, Tree Management Officers are often very busy, and Mrs Woodman may not have had sufficient time to consider the detail within the documents.

83. I accept the contention that Tree 1 makes significant contributions to the respondent’s landscaping, garden design, shade, protection from the sun, and to personal and public amenity. It enhances the local ecosystem and biodiversity. However, I am persuaded by the applicant’s argument that these benefits are outweighed by the likelihood and negative impact of ongoing sewer damage as a result of the tree.

84. The fact that the sewer pipes were aged earthenware and or were “poorly installed’ and would have had to be replaced at some future stage has been addressed above, as has “the failure of the applicant to explicitly raise the issue of the fig tree with the respondent in the time between her text message in September 2019 and the filing of her application”.

85. The presence of Tree 1 prior to the parties’ purchase of their properties, does not inhibit the Court’s jurisdiction to make orders, given that the damage caused by Tree 1 is contemporaneous. Similarly, the cost of executing the orders is not necessarily a constraint on the Court at s 9 of the Trees Act.

86. Though the Trees Act requires the Court to consider a tree’s environmental contributions when contemplating orders, and thus view tree removal as a last resort, in this case I can find no reasonable, viable alternative to the removal of Tree 1. Clearing deadwood, bark and leaves dropped by Tree 1 onto the respondent’s property, as proposed in the respondent’s Alternative orders, “A”, would not assist with addressing the impact of the Fig tree’s roots, nor would canopy pruning, regardless of the extent. From a positive perspective, the residual Fig tree on the western side of the respondent’s back yard and the sizeable, healthy Brush Box tree growing on the verge beyond the applicant’s boundary, should mitigate the impact of the loss, at least in part.

The Cypress trees

87. I was not satisfied the trees comprising the Cypress hedge were causing damage to Ms Chew’s gutters or roof of her dwelling, nor to her garage, notwithstanding that overgrown foliage may have dislodged gutter guard. Further, there were various elements arising at s 12, with respect to alleged future dwelling roof or garage roof damage, that mitigated against orders being made for the Cypress trees.

88. Between Ms Chew’s 2017 occupation and April 2021, ‘Beecraft’, Mrs Frykberg’s gardeners, regularly maintained the back of the hedge along the common boundary, from within Ms Chew’s property and with her consent, at the respondent’s expense. From May 2021, Ms Chew withdrew her consent for ‘Beecraft’ to continue such maintenance and chose not to prune the trees herself.

89. Unsurprisingly, in the absence of pruning, the trees grew towards Ms Chew’s dwelling and after a few years began to impact the applicant’s dwelling gutters and roof. At s 12(h)(i) of the Trees Act, with respect to contributions to damage by anything other than the tree/s, one of the elements considered is the failure of an applicant to maintain their own property.

90. There is no requirement for Ms Chew to allow the gardeners from ‘Beecraft’ to enter her property and prune the hedge. However, it is unreasonable for Ms Chew to expect Mrs Frykberg to take responsibility for the hedge impacting the applicant’s roof and gutters when Ms Chew has elected not to prune the hedge at the boundary line, as ‘Beecraft’ had previously done at no cost to Ms Chew, or at some other location, clear of the roof and gutters.

91. Regarding Ms Chew’s claim that the trees prevented roof and gutter maintenance, Mrs Frykberg was not responsible for the close proximity of the applicant’s dwelling and roof eaves to the boundary. Nonetheless, the rationale above similarly applies. Having chosen to terminate the services of ‘Beecraft’, which had been provided by the respondent at no cost, there was no impediment to Ms Chew substituting ‘Beecraft’ with someone she employed to prune the tree’s foliage along the boundary, or to do the work herself. Although the space was restricted by the proximity of the applicant’s dwelling eaves to the boundary, pruning the back of the hedge at the boundary would provide sufficient space for the safe use of appropriate ladders or for the erection of narrow scaffolding to enable essential gutter or adjacent roof maintenance.

92. With respect to the applicant’s submission that, “overhanging foliage contributed to gutter litter and blockage, and had displaced gutter guard, which additionally contributed to gutter blockage, gutter overflow, and water damage to the roof”, no evidence of “water damage to the roof”, was provided. Even if such evidence had been submitted, this issue is addressed and resolved by the application of the Tree Dispute Principle established in Barker v Kyriakides [2007] NSWLEC 292; 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.”

93. As a consequence of this Tree Dispute Principle, the applicant’s submissions regarding overhanging foliage and ‘litter’ in gutters do not invoke the jurisdiction of the Trees Act.

Part 2A of the Trees Act

94. Part 2A provides a limited jurisdiction and does not assume one should have a right to sunlight or views. Even when the jurisdictional tests are satisfied, before making any orders, the Court is still required to balance the benefits of the trees against the interests of the applicant. The process is set out in Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122; at [17] - [22].

Do the trees form a hedge?

95. The first test is s 14A(1), that is, are the trees a hedge for the purpose of the Trees Act?

96. Section 14A(1) states:

(1) This Part applies only to groups of two or more trees that:

(a) are planted (whether in the ground or otherwise) so as to form a hedge, and

(b) rise to a height of at least 2.5 metres (above existing ground level).

97. The 15 Leyland Cypress trees were planted at spacings of about 0.9m and their trunks were about 0.4m from common boundary. From the respondent’s land, the trees averaged about 5.15m tall and they were neatly trimmed along the front face to about 1.3m wide. Though the back of the hedge had been regularly pruned along the boundary until April 2021, wispy, unpruned growth currently extended over the boundary by around 400 millimetres such that the foliage was touching the gutter and roof of the applicant’s dwelling.

98. In Wisdom v Payn [2011] NSWLEC 1012; at [45], “forming a hedge”, for the purpose of the Trees Act, was described as follows:

“...We are satisfied that the words forming a hedge mean that there must be a degree of regularity and arrangement, in a linear fashion, of the trees being considered. Whilst such an arrangement may be more than one tree deep and does not need to be in a perfectly straight line, the impression that is given by the planted arrangement of the trees must be one that, in an ordinary English language understanding of the word, would be perceived to be a hedge.”

99. On this basis, I am satisfied that the respondent’s trees were planted with an intention to form a hedge and continued to form a hedge. Therefore, s 14A(1) of the Trees Act is engaged.

100. Section 14B of the Trees Act states that:

An owner of land may apply to the Court for an order to remedy, restrain or prevent a severe obstruction of:

sunlight to a window of a dwelling situated on the land, or

any view from a dwelling situated on the land if the obstruction occurs as a consequence of trees to which this Part applies being situated on adjoining land.

101. Ms Chew owned her property and claimed that the respondent’s hedge severely obstructed sunlight to windows of her dwelling. As the respondent’s trees were situated on adjoining land, s 14B of the Trees Act is satisfied.

102. Section 14C sets down the requirements for notice of the application to be given to the owner of the affected land on which the trees are located, to Council, and to other relevant parties. The requirement at s 14C had already been satisfied at s 10(1)(b) of Pt 2 of the Trees Act.

103. Section 14D specifies the Court's jurisdiction to make orders. The Court may make such orders as it thinks fit to remedy, restrain, or prevent a severe obstruction of either sunlight to a window of a dwelling, or any view from a dwelling on the occupant's land, if the obstruction occurs as a consequence of trees that are the subject of the application concerned (s 14D(1)).

104. Section 14E(1) addresses the following matters, of which the Court must be satisfied before making an order:

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

that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the trees are situated, and

if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 14C.

105. Section 14E(1)(a) of the Trees Act is engaged, as the requirement under s 14E(1)(a) is the same as that already satisfied at s 10(1)(a) of Pt 2 of the Trees Act.

106. Similarly, s 14E(1)(b) is satisfied as the requirement to give notice of the application in accordance with s 14C had already been satisfied at s 10(1)(b) of Pt 2 of the Trees Act.

Severe obstruction of sunlight to a window of a dwelling

107. At s 14E(2) of the Trees Act, the jurisdiction initially requires assessment of the severity of obstruction of sunlight to a window of a dwelling, or the obstruction of a view from a dwelling situated on the applicant's land, as a consequence of any or all of the trees in the hedge.

108. Section 14E(2) states:

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

(a) the trees concerned:

(i) are severely obstructing sunlight to a window of a dwelling situated on the applicant's land, or

(ii) are severely obstructing a view from a dwelling situated on the applicant's land, and

(b) the severity and nature of the obstruction is such that the applicant's interest in having the obstruction removed, remedied or restrained outweighs any other matters that suggest the undesirability of disturbing or interfering with the trees by making an order under this Part.

109. If the Court is satisfied an obstruction is severe, it must consider s 14E(2)(b); which in turn requires consideration of a range of matters under s 14F. If orders are appropriate, the Court then relies on the discretion in the making of orders provided under s 14D of the Trees Act.

Is the obstruction of sunlight to a window severe?

110. Ms Chew nominated two west facing windows near the southern end of the rear of her dwelling (W1 and W2) for the assessment of obstruction of sunlight. W1 was a bathroom window closest to the southern end of the dwelling and W2 was in an adjoining room used as a study.

111. As they faced west, sunlight could only reach the windows in the afternoon. Even then, the dwelling’s relatively wide roof eaves above the windows prevented sunlight impacting the windows until an hour or more after midday, depending on the time of year.

112. Nonetheless, because the unpruned growth from the hedge extended over the boundary by around 400 millimetres so that the foliage touching the gutter and roof of the applicant’s dwelling, I could see that very little direct sunlight could penetrate to the nominated windows throughout the afternoon when the sun’s arc was fairly high in the sky, from mid-spring to mid-autumn.

113. Consequently, on face value, I was satisfied that the hedge severely obstructed sunlight to the applicant’s nominated windows, W1 and W2, such that s 14E(2)(a)(i) of the Trees Act is satisfied. As s 14E(2)(a) is engaged, the Court must consider s 14E(2)(b), which in turn required consideration of the following relevant matters under s 14F.

Section 14F

114. Section 14F(a) considers the location of the trees concerned in relation to the boundary of the land on which the trees are situated, and the dwelling the subject of the application. The trees were growing adjacent to the common boundary, and the foliage at the back of the trees was overhanging the boundary.

115. Section 14F(b) considers whether the trees existed prior to the dwelling the subject of the application. The applicant’s dwelling was built long before the hedge existed.

116. Section 14F(c) considers whether the trees grew to a height of 2.5 m or more during the period that the applicant has owned (or occupied) the relevant land. This is a very significant consideration in this case. In Exhibit C, Ms Chew noted the trees were about 4m tall (measured from her side) upon her occupation in 2017, and currently they were approximately 4.1m tall, about 100mm higher than their height upon Ms Chew’s occupation. From the path and lawn of the respondent’s property, from a lower level, the trees were measured as about 5.1-5.2m tall.

117. The jurisdiction of Pt 2A of the Trees Act was not intended to provide access to sunlight or to a view not previously available to an applicant. This purposeful approach, which has been consistently applied by the Court, originated in Recommendation 9 of the "Review of the Trees (Disputes Between Neighbours) Act 2006 " (the Review), which was undertaken by the NSW Department of Justice and Attorney General and published in November 2009. The amended Trees Act, which newly included Pt 2A, incorporated all of the recommendations made in the Review. In discussing the Review; at [23] of McDougall v Philip [2011] NSWLEC 1280 (McDougall), Commissioner Fakes said,

“The discussion relating to Recommendation 9 [page 35] states, in part, that:

“The Court would only have the power to hear matters regarding: ...cases where the applicant themselves has lost the light or view. It would not be appropriate, for example, for a person to purchase a property knowing there is a high hedge next door, and then be able to seek orders against their neighbours so as to gain additional solar access [or in this case a view] which had not existed at the time of the purchase.””

118. Other contextualised elements from Recommendation 9 are found in McDougall; at [22]:

“c) That in determining the dispute, the Court balance the respective rights of neighbours to use and enjoy their land, having regard to privacy and other considerations, and the broader benefits of urban vegetation.

d) That the new procedure be drafted so as not to create a right to light or views.”

119. Consequently, the scope of Pt 2A of the Trees Act guides the Court to not make orders that provide an applicant with, “… additional solar access which had not existed at the time of the purchase” (McDougall*;* at [23]).

120. Section s 14F(k) considers the impact any pruning would have on the trees. As noted above at [88]-[90], until April 2021, ‘Beecraft’ regularly pruned the back of the hedge along the common boundary, with access from Ms Chew’s property with the applicant’s consent, on behalf of Mrs Frykberg’s and at Mrs Frykberg’s expense. As I explained at the hearing, whilst there are no requirements under the Trees Act, nor regulations under Local Government DCP’s, that dictate or formalise who should pay for pruning of foliage that overhangs a common boundary, it is rare for tree owners to elect to do so.

121. From May 2021, Ms Chew withdrew her consent for ‘Beecraft’ to continue such maintenance, subsequently chose not to alternatively continue any such pruning herself, and thus allowed the trees to grow towards her dwelling and impact her dwelling gutters and roof. This choice not to prune the overhanging foliage progressively, reduced the availability of afternoon sunlight to the windows.

122. On 3 November 2021, Mr Charles sent a letter to Ms Chew which included an offer to reduce the hedge height by 200 millimetres, to thin the hedge, and to cut a 45° chamfer from the top of the hedge down towards the applicant’s boundary, as specified for Mrs Frykberg by Mr Paroissien.

123. Although this pruning would have created a tunnel allowing afternoon sunlight to stream down to the windows, on 21 March 2022, Ms Chew rejected the respondent’s pruning offer.

124. Section 14F(l) considers any contribution of the trees 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 they are situated. Though Ms Chew acknowledged, at question 27 of Exhibit C, the hedge’s contribution to the respondent’s privacy, she contended the hedge could be significantly lowered without compromising such privacy.

125. While the respondent valued the hedge’s aesthetic contribution to her landscape, privacy was her critical concern. To this effect, the hedge extended north, beyond the southeastern corner of the respondent’s dwelling by about 500mm. This ensured privacy for occupants of a semicircular glass conservatory protruding southward from the rear of the respondent’s dwelling, near the southeastern corner. Ms Chew was adamant that the northern face of the tree at the hedge’s northern end had extended significantly since her 2017 occupation, and made a big impact on her sunlight access, particularly in winter.

126. This issue was considered at length. Historical images extracted from Nearmaps, Google Streetview, and from photographs, by both Ms Chew and Ms Mackenzie, were discussed and examined in detail, almost forensically. The location of the northernmost tree with respect to sunlight and privacy was visually assessed from multiple angles and perspectives. Nonetheless, I remained unpersuaded that the northernmost tree had grown sufficiently significantly during Ms Chew’s occupation, to make more than a marginal difference to Ms Chew’s winter sunlight, relative to 2017. Alternatively, I was satisfied that removal or heavy pruning of the northernmost Leyland Cypress tree would have a major negative impact on the respondent’s privacy.

127. Compared to the potential additional sunlight to W1 and W2 that Ms Chew had elected to forego by refusing the respondent’s November 2021 offer to reduce the hedge height by 200 millimetres, thin the hedge, and cut a 45° chamfer down towards her windows from the top of the hedge, and or, by not maintaining overhanging foliage back near the common boundary, I was satisfied the impact of any and all additional northward hedge growth was relatively insignificant.

128. Section 14F(o) considers the amount, and number of hours per day, of any sunlight that is lost as a result of the obstruction throughout the year and the time of the year during which sunlight is lost. When the sun’s arc was in the northern sky in winter, afternoon sun would become more available during the early afternoon, but it would be blocked by mid-afternoon by the respondent’s dwelling roof.

129. Section 14F(r) considers “the part of the dwelling the subject of the application from which a view is obstructed or to which sunlight is obstructed.” The Court takes guidance from common criteria in Council DCP’s for assessment of sunlight and overshadowing, where sunlight access to living areas is prioritised. W1 and W2 were windows in a bathroom and a study. In Devile v Frith [2011] NSWLEC 1250 (Devile*)**,* in similar circumstances, Acting Commissioner Hewett found obstruction of sunlight was severe, at s 14E(2)(a), but nonetheless dismissed the application because “the undesirability of interfering with the trees outweighs the applicant's interest in having the obstruction removed”, at s 14E(2)(b) of the Trees Act.

130. In Devile*;* at [30]-[31], Acting Commissioner Hewett said:

“30 W1 is a north facing bathroom window. The bathroom is a utility room that is not occupied for long periods and cannot be given weight equivalent to a living area.”

“31 W2 is a study located on the northern end of the house between the bathroom and the garage and is not part of the main living area of the house. Although I would give this room slightly more weight than the bathroom, laundry and garage, it is not a room that could be considered as part of a living area of the house”.

131. This situation in Devile is mirrored here and I would rank the importance of sunlight to these rooms similarly.

132. Consequently, although the obstruction of sunlight to W1 and W2 was severe on face value, the applicant’s choices have been the most potent factor causing obstruction of sunlight to the windows. Sunlight to windows in bathrooms and studies is considered less important than sunlight to living areas and Ms Chew has alternative rooms with northern and eastern aspects that may access much more sunlight. Significantly, the hedge was already almost its current height upon the applicant’s occupation.

Conclusion

133. For the application under Pt 2 of the Trees Act, I was satisfied, on the balance probabilities, that the roots of Tree 1 had caused repeated damage to the applicant’s sewer pipes, and, in the absence of intervention, was likely to cause further damage in the near future. Consequently, orders shall be made for the removal of Tree 1 and grinding of its base to mitigate the tree’s root impact from the applicant’s land.

134. The applicant had largely caused any damage or nuisance attributable to the Cypress hedge foliage by her failure to maintain her own property. I found no evidence of damage caused by Cypress tree roots. Therefore, the Cypress trees shall not be the subject of orders under Pt 2.

135. For the application under Pt 2A of the Trees Act, although the hedge was causing a severe obstruction of the applicant’s nominated windows on face value, the applicant had significantly contributed to the sunlight obstruction by not pruning overhanging foliage and by refusing an offer from the respondent to lower the hedge by 200mm and prune a chamfer at the back of the hedge to tunnel light to the windows.

136. Further, in terms of the relative significance of sunlight access attributed to different room types in Council DCP overshadowing assessment criteria, sunlight to windows in bathrooms or studies are de-prioritised relative to living areas, kitchens, and even bedrooms.

137. Most significantly, Ms Chew submitted that the hedge was about 100mm taller than upon her 2017 occupation. In accordance with the Scope of the Trees Act, as reflected in the Review, “[i]t would not be appropriate, for example, for a person to purchase a property knowing there is a high hedge next door, and then be able to seek orders against their neighbours so as to gain additional solar access which had not existed at the time of the purchase”.

138. Finally, Mrs Frykberg values her privacy highly, and privacy repeatedly arises as the most significant consideration for respondents under s 14F of the Trees Act.

139. Consequently, as Hewett AC found in Devile, I am satisfied, at s 14E(2)(b), that the undesirability of interfering with the trees outweighs the applicant's interest in having the obstruction removed or remedied. Given the circumstances described above, it would not be reasonable for orders for hedge intervention to be made against the respondent. Section 14E(2)(b) is not satisfied, thus the Court has no power to make orders. Consequently, the application under Pt 2A of the Trees Act is refused.

Orders

140. The Court orders:

141. The respondent shall engage and pay Australian Qualification Framework (AQF) Level 3 arborists with all appropriate insurances (the arborists), to remove the respondent’s Ficus benjamina located closest to the applicant’s property, as identified in the application as Tree 1.

142. The respondent shall engage and pay the arborists to grind the base of the Tree 1 sufficiently deep and extensively to prevent regrowth, and to separate all roots that are growing into and on the applicant’s land from Tree 1.

143. The works in Orders (1) and (2) (the works), shall be completed within 60 days of the date of these orders.

144. Should any new growth subsequently arise from the base of Tree 1, or from any roots in either property that emanated from the base of Tree 1, the respondent shall promptly (and repeatedly, if necessary) engage and pay the arborists to regrind the tree base and or roots, until the tree exhausts all energy reserves and dies.

145. All tree works shall be completed in accordance with the Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016.

146. The applicant shall provide all reasonable access to the arborists, upon receipt of at least 5 days notice by email from the respondent or from the respondent’s Solicitor, of the date and approximate start time of all required tree works.

147. All works shall be undertaken during reasonable daytime working hours.

J Douglas

Acting Commissioner of the Court

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