Dunn v Slattery

The onsite hearing

1. Both parties were self-represented at the hearing which commenced with assessment of the trees in the respondent's property. The trees were located close to the common boundary, with buttressing roots and the trunk of Tree 2 impacting the metal boundary fence. The trees were about 15 m tall and appeared to display good health and fair structural characteristics.
2. The Court moved to the applicant's land where Mr Dunn explained the constraints relating to his development, the imperative for the fence to be repositioned to meet his DA boundary offset requirements and his desire for the fence to be positioned precisely on the boundary. Mr Dunn stressed that this was not possible whilst retaining the trees as the fence would suffer further damage and he rejected fence modification around the trees as an unsuitable option.
3. The respondent values the habitat and other environmental services the trees provide. Ms Slattery resisted the application for tree removal but accepted the trees had damaged the fence. She had previously offered to repair the damage at her cost. Ms Slattery contended that the tree could not cause of damage to the applicant's driveway as there was no driveway in existence.
4. Mr Dunn proposed the following orders: "1. Trees have damaged the existing fence and are likely to cause damage to the proposed fence. 2. The Trees are to be removed. 3. Alternatively, the Trees are to be trimmed." In the Tree Dispute Claim Details (Exhibit B) at question 17, the applicant also proposed replacement of the common boundary fence, pursuant to s 13A of the DF Act.
5. On 28 February 2024, the applicant submitted 'Evidence of David Dunn' containing four exhibits: 1. The LRS boundary determination which displayed Tree 1 extended 20 mm beyond the boundary while Tree 2 encroached by 140mm. The document noted the LRS boundary determination was under appeal, but I understand that an appeal was not pursued. 2. Images of stumps of trees previously removed by the Slattery's, one of which was a Paperbark. Mr Dunn claimed the Slattery's wanted the two boundary Paperbark trees removed and procured a quote in preparation. 3. A letter to the Slattery's on 18 September 2023 which stated Mr Dunn would arrange tree removal and stump grinding at his cost and "look after any notices or fines to eliminate the Slattery's of any wrongdoing they thought might be placed upon them". Mr Dunn said his arborist was currently "preparing statements for council". 4. A letter from Ms Slattery's on 3 October 2023 which showed the Slattery's agreed to the tree removals four days prior to "the commencement letter" delivered to the Slattery's on 7 October 2023.
6. Both parties submitted reports from Australian Qualification Framework (AQF) level 5 arborists. The applicant relied on an Arboricultural Impact Statement and Tree Management Report of 28 September 2023, from Mark Bury of Mark Bury Consulting (Bury report/ Exhibit C).
7. Mr Bury provided a bulky report that mainly comprised generic material for managing trees on development sites. The Synopsis commenced with; "This report advises that two (2) trees located on the proposed development site (Proposed new fence) can be preserved …. as the proposed fence post holes can be dug to not interfere with existing roots of the trees. Tree 1 will require some shaving of the trunk to accommodate the new fence line (200 mm) at the base of the tree", and 100 mm for Tree 2. "… this will not affect the tree as they are very hardy species." At par 7, Mr Bury said, "if the trees are not to be trimmed, they should be removed as not cause (sic) any further damage to fences and new concrete driveway as proposed". Mr Bury did not qualify what "trimmed" meant or whether it related to tree canopies or roots. Canopy pruning was not otherwise recommended or specifically discussed in the report. Mr Bury concluded par 9 with, "If any trees are required to be preserved by Council, then they should be protected as per the Tree Management Plan in Appendix 7."
8. In his Discussion, at section 5, Mr Bury said both trees were "in fair condition", will not be impacted by proposed works provided "post holes are properly sited away from the roots" and had a medium retention value as the trees will grow too large for their site. At par 5.3, Mr Bury said, "It would be considered appropriate tree management that the tree be preserved and managed as per the tree management plan in appendix 7". He reiterated the requirement for trunk shaving for fence clearance.
9. In Overall Recommendations, at section 6, Mr Bury said an "AQF Level 5 Arborist should be on site during all future excavation works near the tree" if required for retention by Council, and "site arborist should make regular inspections to ensure compliance with Appendix 6" (Construction Impact Statement).
10. The report's Tree Schedule contained two identical profile sheets, in which the trees were described as "poor condition", "low vigour", and "poor form". Mr Bury provided no original commentary to qualify these determinations, which conflicted with the results of my tree inspection and that conducted by the respondent's arborist. Mr Bury said both trees were 15 m tall, with a 6 m canopy spread and trunk diameter at breast height (DBH) of 410 mm. Though the trees were of similar height, the trunk diameter (and thus DBH) of Tree 2 was distinctly smaller than Tree 1.
11. Mr Bury noted the trees "have no Ecological or Habitat matters" but "will be required to be preserved for the development to be constructed on the site" and should be protected as per Appendix 7. Mr Bury also classified the trees as Useful Life Expectancy (ULE) of 3b, which he interpreted as, "Trees that may live for more than 15 years but would be removed for safety or nuisance reasons."
12. In the Construction Impact Statement at Appendix 6, the DBH of Tree 2 was now noted as 300 mm and its Tree Protection Zone (TPZ) as 3.6 m. The TPZ for Tree 1 was calculated as 4.7 m, but this was incorrect. The TPZ formula is 12 x DBH = 12 x 0.410 = 4.92 m. The Structural Root Zones (SRZ) were calculated as 2.4 m for Tree 1 and 2.2 m for Tree 2. The Arboricultural Management Plan in Appendix 7 was ostensibly personalised for Mr Dunn's property but, in reality, was 17 pages of generic tree protection information adopted from various sources, only a minor part of which was relevant to Mr Dunn's development.
13. There were two identical 'Individual Tree Management Plan Specifications' towards the back of the report which, in essence, were excerpts from Appendix 7, copied and pasted into a different format. On this occasion, however, both trees were "in good condition" and "should be protected and managed as per the tree management plan in Appendix 6".
14. Overall, the report was characterised by inconsistent and contradictory findings. The trees were in "fair condition" in the report's Discussion, which changed to "poor condition", "low vigour", and "poor form" in the Tree Schedule (most likely to inform a ULE determination of 3b), and they completed the report "in good condition". Similarly, Mr Bury appeared to hedge his bets, variously recommending both tree preservation and management according to the plan in Appendix 7, and tree removal due to damage and nuisance.
15. The respondent relied on an Arborist Report from Michael Marley of Bellevue Tree Consultants, dated 2 March 2024 (Marley report/ Exhibit 1), which comprised clear, concise, relevant information. Unlike Mr Bury, Mr Marley acknowledged adherence to the Expert Witness Code of Conduct in s 7 of the Uniform Civil Procedures Rules 2005, as required by the Court. Mr Marley, however, declared that payment for the site attendance and report was contingent on a successful outcome by Ms Slattery. Such an arrangement is contrary to the Court's expectation as it is vulnerable to a conflict of interest resulting in biased findings and opinions. Nonetheless, Mr Marley actively disclosed the contingency payment arrangement, provided appropriate relevant findings, and the report was largely non-partisan.
16. The Marley report estimated the trees' age as 35-40 years and their ULE as > 40 years. Both trees were said to display good vigour, fair structural condition, sound branch unions, and no evidence of pest or disease. "[M]inor conflict" was identified between the fence and the tree bases. For Tree 1, DBH was noted as 560 mm, TPZ was 6.7 m and SRZ was 2.7 m, with both the latter two measurements indicating the radius of the relevant zone from the centre of the trunk. The DBH of Tree 2 was 380 mm, TPZ was 4.5 m and SRZ was 2.4 m.
17. The Marley report concluded that the trees and the fence can co-exist without causing future injury to the trees or damage to the fence and allow space for future tree root development. Mr Marley claimed the "trunk shaving" recommended by Mr Bury "would compromise the trees' structural integrity and provide a potential entry point for pest and disease; it is considered an unacceptable pruning practice and is not compliant with Australian Standard AS 4373 - Pruning of amenity trees".
18. Other summarised recommendations from the Marley report were: 1. Tree sensitive techniques for fence post installation with non-destructive excavation techniques to protect roots and no severing of roots > 40 mm diameter. 2. If a new fence is to be installed, fence panels affecting the trees should be designed to accommodate the trees' existing basal flare and future trunk development, with panel design approval by an AQF level 5 project arborist. 3. Any future driveway within the TPZ of both trees shall not be located within 300 mm of the fence. Tree sensitive design techniques such as no-dig ground stabilisation and above ground load support systems are to be used for driveway construction with modular interlocking vehicle panels or similar permeable material placed above existing ground levels, to allow vehicles to pass over without damaging tree roots. All works shall be approved and supervised by an AQF level 5 project arborist. 4. All underground services shall be routed and installed beyond the TPZ's of both trees. The AQF level 5 project arborist must be consulted about proposed route and methodology if an incursion into a TPZ is essential, and any excavation within the TPZ of both trees shall be by hand methods, hydro-vac or an airspade under AQF level 5 project arborist supervision.

Jurisdictional requirements

1. With respect to s 7 of the Trees Act, 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.
2. As root buttresses of the trees were growing near or over the boundary, clarification of the trees' location was necessary to ensure the trees were "situated on adjoining land", as required by the Trees Act. When a tree straddles a boundary, for the purposes of the Trees Act, the tree is situated on adjoining land if it is wholly or principally on that land (s 4(3)). The Court has previously found, as in Dive v Lin & anor [2017] NSWLEC 1348, that to be principally situated on land, more than 50% of the area of the tree's stem, where it enters the ground, must be on that property.
3. From my site inspection and analysis of the LRS boundary determination, I was satisfied that more than 60% of each tree's stem, where they enter the ground, were positioned on the respondent's land. Therefore, the trees were principally situated on adjoining land.
4. Section 8(1) of the Trees Act requires the applicant to give at least 21 days notice of the lodging of the application and the terms of any order sought to: 1. the respondent, and 2. any relevant authority that would, in accordance with s 13, be entitled to appear in proceedings in relation to the tree, and 3. any other person the applicant has reason to believe will be affected by the order.
5. Ms Slattery claimed Mr Dunn had not notified her about fence damage caused by her trees prior to lodging the application under the Trees Act on 19 December 2023. The satisfaction of the requirement at s 8(1) of the Trees Act is addressed in Ball v Bahramali & Anor [2010] NSWLEC 1334 (Ball). Section 14C(1) was considered in Ball, where s 14C(1) is the same requirement in Pt 2A as s 8(1) in Pt 2 of the Trees Act. Ball, at [38], says; "38 With respect to Mr Gerathy's contentions concerning the notice given by the applicant and compliance with s 14C(1) the application was filed with the Court on 19 August. The date specified and stamped in the application by the Court regarding when the application had to be served on the respondents and other parties was 27 August. The matter was listed for a preliminary hearing on 21 September 2010. This information is recorded in the application; this was copied and made available to the applicant. Thus there was at least 21 days notice specified by the Court for the serving of documents and the preliminary hearing and therefore compliance with s 14C(1)."
6. In this case, the application was filed with the Court on 19 December 2023. The date specified and stamped in the application by the Court regarding when the application had to be served on the respondents and other parties was 30 January 2024. The matter was listed for a preliminary hearing on 20 February 2024. This information is recorded in the application; this was copied and made available to the parties. Thus, there was at least 21 days notice specified by the Court for the serving of documents and the preliminary hearing, and therefore compliance with s 8(1)(a) of the Act.
7. An Annotated Trees Act (annotated Act), available on the Court's website, assists with interpretation of the legislation by providing commentary about relevant cases. At page 30, with respect to s 8(1)(a), the annotated Act says; "It is clear that the 21-day period relates to notice of an application having been made not of an intention to lodge an application".
8. In the file, there was no evidence of service of the application documents on Council, as required by s 8(1)(b). Section 8(3) of the Trees Act provides the Court with powers to waive the requirement to give notice or vary the period of notice under this section if it thinks it appropriate to do so in the circumstances. Given the circumstances before me of an intense dispute requiring resolution, I waived the requirement to serve the application on Council. There was no requirement for the applicant to provide the application documents to any other authority or person.
9. Section 9 of the Trees Act details the Court's powers to make a broad range of orders, as discussed at length in Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (Robson); at [211] - [217].
10. The Court is next obliged to consider matters pursuant to s 10 of the Trees Act. Section 10(1)(a) requires that the applicant has made a reasonable effort to reach agreement with the owners of the land on which the tree is situated. In Robson; at [194] - [195], Preston CJ says: "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."
11. Mr Dunn submitted a proposal to remove the trees in a letter to Ms Slattery of 18 September 2023, and Ms Slattery's agreed to remove the trees as required for the fence relocation in her, "Final Attempt to try to reach agreement" letter to Mr Dunn on 3 October 2023. Mr Dunn also noted engaging in onsite mediation, albeit unsuccessful, with the respondent under Acting Commissioner Peatman of the LEC on 16 October 2023, as directed by Pritchard J. Regardless that these tree removals were originally planned in conjunction with the erection of a new fence rather than in response to the application's damage claims, the Trees Act application from Mr Dunn proposing to remove the trees and replace the fence cannot be a surprise to Ms Slattery.
12. At [192] of Robson, his Honour said; "The Trees (Disputes Between Neighbours) Act 2006 does not prescribe any particular means by which an applicant must make a reasonable effort to reach agreement with the tree landowner", nor the manner of the applicant's negotiations. Consequently, I am satisfied that the requirement of s 10(1)(a) of the Trees Act has been met; that the applicant has made a reasonable effort to reach agreement with the owners of the land on which the tree is situated.
13. The next major test that is posed, by s 10(2) of the Act, is that the Court must be 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.

Damage caused by the trees

1. I was satisfied that the buttressed roots and tapered lower trunks of the trees had damaged a section of the metal panel fence, with impact on 6 posts and 4 panels. Mr Dunn had also caused damage to 1 fence panel, most likely with his machinery.
2. The respondent submitted that the trees may not be the only cause of the fence damage and that a large tree that previously grew close by on the applicant's land likely also caused damage to the fence. However, the trees need only be a cause of damage to engage the jurisdiction and I am satisfied of the nexus between the trees and the fence damage. Conversely, as there was no trace of the former trees in the applicant's back yard, in the absence of evidence, Ms Slattery's claim of damage by Mr Dunn's tree or trees is mere speculation. Consequently, s 10(2)(a) of the Trees Act is engaged.
3. Mr Dunn claimed damage to his proposed concrete driveway, shown on the site diagram to abut the fence and the base of the trees. Though the DA is approved, the driveway does not yet exist and there is no timetable for its installation. Thus, one cannot assess the relative levels, the concrete thickness and strength of the driveway, or the position and proximity of roots.
4. The jurisdiction of the Trees Act covers past damage, current damage, and damage likely to be caused by a tree in the near future. Based on the decision in Yang v Scerri [2007] NSWLEC 592 (Yang), the near future is defined, as a rule of thumb, to be a period of one year. Even if the driveway had already been installed, a reinforced concrete driveway sufficiently strong enough to carry Mr Dunn's construction machinery, would usually resist the impact of thickening tree roots entirely or for a long period. Therefore, I am not satisfied that near future damage to the concrete driveway is likely in either of these circumstances.
5. If the jurisdictional test in s 10(2) is satisfied, s 9 of the Trees Act empowers the Court to make any order it sees fit to remedy, restrain or prevent damage to property or injury to persons. In making an order, the Court must consider relevant matters in s 12 of the Trees Act.

Discretionary considerations - Section 12

1. The trees' trunk bases and root buttresses are located immediately adjacent to and over the common boundary (ss 12(a)).
2. Section 12(b) considers whether interference with the tree/s would, in the absence of s 6(3), require any consent or other authorisation under the Environmental Planning and Assessment Act 1979 (EP&A Act) or Heritage Act 1977 and, if so, whether any such consent or authorisation has been obtained. In Exhibit B, Mr Dunn answered no to this question (18) and noted "[r]efer to arborist report". Although it listed current and historical repealed legislation and planning instruments, the Bury report provided no specific information informing this issue.
3. Submissions from the respondent addressed this consideration on two levels. Initially, Ms Slattery noted that the applicant's DA plans submitted to Council for assessment under the EP&A Act, did not include the respondent's Melaleuca trees, thus contravening Council's DA supporting document requirements in accordance with Chapter 6.6 of Gosford Development Control Plan (DCP) 2013. This stipulates neighbouring trees within 5 m of a proposed development and "all trees that may be affected by proposed buildings, access, services and bush fire protection zones" be included in a 'Tree Locations and Schedule', and that "[a]ll trees are to be plotted (by land survey) and numbered on the Development Application".
4. Regardless of being a licenced and experienced local building contractor, Mr Dunn pleaded ignorance of this and other Council DA requirements. Mr Dunn claimed that his DA application was prepared by allied professionals, and he signed it without reading it, consistent with his usual practice, without regard to whether Council DA requirements had been satisfied. That the DA was approved, apparently in absence of a site inspection to ground truth to the application, casts aspersions on Council's DA assessment process.
5. Ms Slattery submitted that permission for the trees' removal is required under Chapter 3.5 Tree and Vegetation Management of Central Coast DCP 2022, the jurisdiction of which sits under the EP&A Act. The respondent emphasised advice from Council, that "[o]nly the owner of the property can authorise the approval for the removal of trees on their property." As there were no criteria within Council's list of Exempt Tree Works that applied to the trees, Council permission would be required for their removal, contrary to Mr Dunn's answer at question 20 of Exhibit B.
6. Section 12(b2) considers the impact any pruning would have on the tree. Regarding Mr Dunn's proposed Order (3) for "Alternatively the trees are to be trimmed", while I concur with Ms Slattery that the desired pruning was unspecified, Mr Dunn was dissatisfied with the trees' canopies encroaching the common boundary. There is, however, no remedy for encroachment under the Trees Act unless the encroaching part is causing damage or likely to cause near future damage or risk of injury. As the trees' canopies did not satisfy these conditions, there was no reasonable basis to order canopy pruning.
7. The respondent appreciates the trees' beauty and amenity they provide by shading and cooling in summer. They contribute to the scenic value of the respondent's land, and add some intrinsic value to public amenity as they may be viewed from the street (subss 12(b3),(e) and (f)).
8. Though Mr Bury claimed this species was not endemic to this area, it is endemic and plentiful in east coast wetlands from Botany Bay to Cape York. Thus, the trees contribute to local biodiversity. Ms Slattery noted various birds and other wildlife that use the trees for food, roosting, or habitat (s 12(d)).
9. The trees would assist in absorbing water and reducing pooling. This species is adapted to low oxygen levels common to high water tables, reported as characteristic of this area. At par 42 of her affidavit, Ms Slattery said, "The trees are also perfect for the conditions as they also can tolerate wet feet or being inundated with water for periods of time. Considering their contribution and benefits these Paperbarks should be retained (ss 12(g))".

Findings

1. As s 10(2) of the Trees Act was satisfied by the trees causing damage to the fence, the Court may assess Mr Dunn's application pursuant to s 13A of the DF Act.
2. Mr Dunn wanted the fence moved to the boundary per the Cahill survey as this was the basis of his DA and was required to provide boundary offsets for his rear carport and the driveway adjacent the planned new dwelling consistent with his approved plans. As the boundary in the LRS survey boundary was 0.115 m south of the 'Cahill boundary' at the street and 0.125 m south at the rear corner, moving the fence to the boundary will no longer provide satisfaction of Mr Dunn's DA offset requirements. Moving the fence to the true boundary was the primary reason for Ms Slattery initially agreeing to a new fence and tree removals.
3. This reason for moving the fence has thus dissolved as the LRS survey determined the existing fence is almost on the boundary. The fence encroached 10 cm into Ms Slattery's land at the street corner and 9 cm into Mr Dunn's property at the rear corner, a net incursion onto Ms Slattery's land of about half a square metre.
4. Ms Slattery claimed the current fence is a satisfactory fence for the purposes of the DF Act and she preferred to repair and retain the fence. Ms Slattery had repeatedly advised Mr Dunn of her concerns about the welfare and security of her dogs being jeopardised by fencing works, but Mr Dunn rejected two options from Ms Slattery for replacing the fence that would have provided security for her dogs, both of which were detailed but not unreasonable.
5. Respondents wanting to retain trees causing damage are required to submit alternative options for mitigation of damage by trees. Accordingly, the Marley report included recommendations for fence panel modification to prevent additional fence damage, at least in the medium term. Ms Slattery provided a diagram of an example modified fence panel. Presuming the metal panels are standard, at 2.4 m long, the fence contained about 23 posts and 22 panels. The existing fence required replacement of only 6 posts and 4 panels by the respondent, and 1 panel by the applicant. The remainder of the fence appeared relatively straight, sound, rigid, and undamaged and the recommended fence panel modification provides for the replaced fence section to be positioned in a relatively straight line where it passes the trees rather than bowing towards the applicant's land, as is currently the case.
6. From the adduced evidence, I am therefore satisfied that the existing fence is a satisfactory fence for the purposes of the DF Act, subject to replacement of 6 adjacent posts and 4 adjacent panels commencing at the 2nd post and 3rd panel west of the back corner, and the 8th panel west of the back corner.
7. Fence post installation shall be undertaken by or under supervision of an AQF level 5 arborist (the arborist) and shall employ non-destructive excavation techniques to protect roots. Mr Marley recommended no severing of roots > 40 mm diameter while Mr Bury recommended no severing of roots > 25 mm. I also apply 25 mm as a default criterion, but such determinations are contextual, and a 40 mm maximum is not unreasonable with this tree species.
8. Modified fence panels should be designed to accommodate the trees' existing basal flare and future trunk development, with final panel design to be approved by the arborist. Installation of modified panels immediately adjacent the trees will require onsite collaboration between the arborist and the fencing contractor. These fencing works and associated arborist fees shall be at the respondent's expense.
9. Though it was required by Council, Mr Dunn failed to include the respondent's trees in his DA plans, thus denying Council the opportunity to determine appropriate protection for the trees from the impacts of his development. Nonetheless, both arborists included and/or recommended measures to protect the trees' roots during installation of the applicant's driveway and underground services, from which an appropriate protection program may be drawn.
10. The Bury report recommended "an AQF Level 5 Arborist should be on site during all future excavation works near the tree". The Marley report recommended any future driveway within the TPZ of both trees shall not be located within 300 mm of the fence. Tree sensitive design techniques such as no-dig ground stabilisation and above ground load support systems are to be used for driveway construction with modular interlocking vehicle panels or similar permeable material placed above existing ground levels, to allow vehicles to pass over without damaging tree roots. All works shall be approved and supervised by the arborist.
11. In Appendix 7, with respect to services, the Bury report said, "[a]ll underground utilities and drain or irrigation lines shall be routed outside the tree protection zone. If lines must traverse the protection area, they shall be tunnelled or bored under the tree. The site arborist should be present during any such works."
12. The Marley report similarly recommended service installation beyond the TPZ's of both trees. Any potential incursion into a TPZ requires consultation with the arborist about proposed route and methodology and any excavation within the TPZ of both trees shall be by hand methods, hydro-vac or an airspade, under supervision of the arborist.
13. Considering the arborist recommendations, and the fact that Melaleuca quinquenervia is tolerant of minor to moderate root damage, I have determined a regime that provides protection for the trees' roots while retaining the majority of Mr Dunn's concrete driveway, rather than the alternative surface treatments recommended by the Marley report. Though "modular interlocking vehicle panels or similar permeable material placed above existing ground levels, to allow vehicles to pass over without damaging tree roots" would provide greater aeration and moisture to the roots, I am satisfied that the utility and practicality of the applicant's development would be compromised if the concrete driveway area was significantly altered. Therefore, the concrete driveway shall be retained as planned, except for the area within 300 mm of the fence within the trees' TPZ's, which shall be filled with a porous material to protect the roots.
14. Nonetheless, preparation for installation of the concrete driveway within the TPZ's will likely require bridging over roots and may require areas of raft slab or slab on piers, as per AS 4790:2009, Protection of trees on development sites. Alteration of levels may also be required. This shall be determined by the arborist, subject to the location and characteristics of exposed roots.
15. Effective tree protection requires arborist determinations as circumstances unfold. The TPZ of Tree 1 was 6.7 m in the Marley report and about 4.9 m based on Mr Bury's figures. Though the Marley report figures are more likely to be correct, based on either TPZ determination, routing the applicant's stormwater pipes and services around the TPZ will be challenging. As some TPZ incursion is thus likely, sound arborist supervision and decision making is critical.
16. Considering the inconsistent and contradictory findings that characterised the Bury report and the repeated recommendation to cut sections out of the trees' trunks to accommodate the fence, contrary to sound arboricultural practice, I am not satisfied that Mr Bury is an appropriate project arborist. Conversely, Mr Marley has provided detailed findings and sound recommendations and is likely to provide effective tree protection in the role of project arborist.
17. Mr Dunn may contract any AQF level 5 arborist to supervise his construction works within the TPZ. However, as a consequence of the circumstances of the dispute between the parties and the reasonable expectation of the respondent to have her trees' roots genuinely protected, should Mr Dunn select a project arborist other than Mr Marley, Mr Dunn's chosen arborist shall be subject to prior approval by the respondent. Therefore, from a practical perspective, Mr Dunn is encouraged to employ Mr Marley as project arborist for construction works within the TPZ's.
18. Mr Dunn shall also replace the 8th metal fence panel west of the back corner at his expense.

Conclusion

1. Based on my inspection of the trees and the site, and documents supplied by both parties, I have reached the following conclusions:
2. The respondent's trees have damaged the common boundary fence. Orders shall be made for Ms Slattery to replace the section of tree damaged fence including modified panels to provide allowance for the trees' trunks and roots. Fence panel design and installation and post hole excavation shall be subject to supervision by an AQF level 5 arborist.
3. Mr Dunn omitted the respondent's trees from his DA and thus avoided consideration of his development's impact on the trees. Consequently, the Court has applied a protection regime based on a synthesis of both arborists' recommendations to protect the trees from root damage within TPZ's, while retaining a functional concrete driveway for the applicant. Prior to any excavation, compaction, or alteration of soil level, the applicant, at his expense, shall contract an AQF level 5 arborist to supervise all works within the TPZ's.
4. Though Mr Dunn considered fence modification around the trees an unsuitable option, many urban trees are located near and across boundaries and it is a common practice to modify fences and bridge over roots. The environmental benefits of trees are specifically included for consideration under the Trees Act. Though the trees may potentially cause damage in the long term, other than the cost of the tree protection measures imposed on the applicant, Mr Dunn will gain a relatively straight fence almost on the boundary and a concrete driveway with only a minor alteration from his DA plans. Simultaneously, the trees will continue to provide cumulative environmental benefits as a consequence of sound protection measures.
5. Ms Slattery proposed an alternative order to subpoena all documents associated with Mr Dunn's DA from Council. Under the Trees Act, however, the Court has no powers to make such orders.

Orders

1. The Court orders that: 1. Within 90 days of the date of these orders, the respondent, at her expense, shall replace 6 posts and four panels of the common boundary fence, comprising the 2nd to the 7th post inclusive and the 3rd panel to the 6th panel inclusive, when considered from the fence's eastern end. The design of fence panels in alignment with trunks and roots of the trees shall be modified to accommodate the trees' existing basal flare and future trunk development. 2. In conjunction with the works in Order (1), the respondent, at her expense, shall employ an Australian Qualification Framework (AQF) level 5 arborist with appropriate insurances, to supervise or undertake excavation of all fence post holes, determine and approve the design of modified fence panels, and collaborate with fencing contractors with respect to the installation of modified fence panels. 3. Within 90 days of the date of these orders, the applicant, at his expense, shall replace the 8th panel of the common boundary fence when considered from the fence's eastern end. 4. Prior to any excavation, compaction, alteration of soil level, or any other construction activity within the Tree Protection Zones (per the Arborist Report from Michael Marley of Bellevue Tree Consultants, dated 2 March 2024), the applicant, at his expense, shall employ an AQF level 5 arborist with appropriate insurances to supervise all construction activity within the Tree Protection Zones, including the concreting. Should Mr Dunn prefer to employ an AQF level 5 arborist other than Mr Marley, Mr Dunn's chosen arborist shall be subject to prior approval by the respondent. 5. Should access be required to the other party's property to undertake works, each party shall provide all reasonable access, subject to at least 72 hours notice by email, advising the date and approximate start time of the works. 6. The works shall be completed during reasonable daytime working hours.

Amendments 27 June 2024 - Amendment made to paragraph 12 to refer to the Court moving to the applicant's property. 31 July 2024 - Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the "slip" rule), correction is made to paragraph [76] to refer to the correct party. 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: 31 July 2024

In the Tree Dispute Claim Details (Exhibit B) at question 17, the applicant also proposed replacement of the common boundary fence, pursuant to s 13A of the DF Act.

1. On 28 February 2024, the applicant submitted 'Evidence of David Dunn' containing four exhibits:

(1) The LRS boundary determination which displayed Tree 1 extended 20 mm beyond the boundary while Tree 2 encroached by 140mm. The document noted the LRS boundary determination was under appeal, but I understand that an appeal was not pursued.

(2) Images of stumps of trees previously removed by the Slattery's, one of which was a Paperbark. Mr Dunn claimed the Slattery's wanted the two boundary Paperbark trees removed and procured a quote in preparation.

(3) A letter to the Slattery's on 18 September 2023 which stated Mr Dunn would arrange tree removal and stump grinding at his cost and "look after any notices or fines to eliminate the Slattery's of any wrongdoing they thought might be placed upon them". Mr Dunn said his arborist was currently "preparing statements for council".

(4) A letter from Ms Slattery's on 3 October 2023 which showed the Slattery's agreed to the tree removals four days prior to "the commencement letter" delivered to the Slattery's on 7 October 2023.

1. Both parties submitted reports from Australian Qualification Framework (AQF) level 5 arborists. The applicant relied on an Arboricultural Impact Statement and Tree Management Report of 28 September 2023, from Mark Bury of Mark Bury Consulting (Bury report/ Exhibit C).
2. Mr Bury provided a bulky report that mainly comprised generic material for managing trees on development sites. The Synopsis commenced with; "This report advises that two (2) trees located on the proposed development site (Proposed new fence) can be preserved .... as the proposed fence post holes can be dug to not interfere with existing roots of the trees. Tree 1 will require some shaving of the trunk to accommodate the new fence line (200 mm) at the base of the tree", and 100 mm for Tree 2. "... this will not affect the tree as they are very hardy species." At par 7, Mr Bury said, "if the trees are not to be trimmed, they should be removed as not cause (sic) any further damage to fences and new concrete driveway as proposed". Mr Bury did not qualify what "trimmed" meant or whether it related to tree canopies or roots. Canopy pruning was not otherwise recommended or specifically discussed in the report. Mr Bury concluded par 9 with, "If any trees are required to be preserved by Council, then they should be protected as per the Tree Management Plan in Appendix 7."
3. In his Discussion, at section 5, Mr Bury said both trees were "in fair condition", will not be impacted by proposed works provided "post holes are properly sited away from the roots" and had a medium retention value as the trees will grow too large for their site. At par 5.3, Mr Bury said, "It would be considered appropriate tree management that the tree be preserved and managed as per the tree management plan in appendix 7". He reiterated the requirement for trunk shaving for fence clearance.
4. In Overall Recommendations, at section 6, Mr Bury said an "AQF Level 5 Arborist should be on site during all future excavation works near the tree" if required for retention by Council, and "site arborist should make regular inspections to ensure compliance with Appendix 6" (Construction Impact Statement).
5. The report's Tree Schedule contained two identical profile sheets, in which the trees were described as "poor condition", "low vigour", and "poor form". Mr Bury provided no original commentary to qualify these determinations, which conflicted with the results of my tree inspection and that conducted by the respondent's arborist. Mr Bury said both trees were 15 m tall, with a 6 m canopy spread and trunk diameter at breast height (DBH) of 410 mm. Though the trees were of similar height, the trunk diameter (and thus DBH) of Tree 2 was distinctly smaller than Tree 1.
6. Mr Bury noted the trees "have no Ecological or Habitat matters" but "will be required to be preserved for the development to be constructed on the site" and should be protected as per Appendix 7. Mr Bury also classified the trees as Useful Life Expectancy (ULE) of 3b, which he interpreted as, "Trees that may live for more than 15 years but would be removed for safety or nuisance reasons."
7. In the Construction Impact Statement at Appendix 6, the DBH of Tree 2 was now noted as 300 mm and its Tree Protection Zone (TPZ) as 3.6 m. The TPZ for Tree 1 was calculated as 4.7 m, but this was incorrect. The TPZ formula is 12 x DBH = 12 x 0.410 = 4.92 m. The Structural Root Zones (SRZ) were calculated as 2.4 m for Tree 1 and 2.2 m for Tree 2. The Arboricultural Management Plan in Appendix 7 was ostensibly personalised for Mr Dunn's property but, in reality, was 17 pages of generic tree protection information adopted from various sources, only a minor part of which was relevant to Mr Dunn's development.
8. There were two identical 'Individual Tree Management Plan Specifications' towards the back of the report which, in essence, were excerpts from Appendix 7, copied and pasted into a different format. On this occasion, however, both trees were "in good condition" and "should be protected and managed as per the tree management plan in Appendix 6".
9. Overall, the report was characterised by inconsistent and contradictory findings. The trees were in "fair condition" in the report's Discussion, which changed to "poor condition", "low vigour", and "poor form" in the Tree Schedule (most likely to inform a ULE determination of 3b), and they completed the report "in good condition". Similarly, Mr Bury appeared to hedge his bets, variously recommending both tree preservation and management according to the plan in Appendix 7, and tree removal due to damage and nuisance.
10. The respondent relied on an Arborist Report from Michael Marley of Bellevue Tree Consultants, dated 2 March 2024 (Marley report/ Exhibit 1), which comprised clear, concise, relevant information. Unlike Mr Bury, Mr Marley acknowledged adherence to the Expert Witness Code of Conduct in s 7 of the Uniform Civil Procedures Rules 2005, as required by the Court. Mr Marley, however, declared that payment for the site attendance and report was contingent on a successful outcome by Ms Slattery. Such an arrangement is contrary to the Court's expectation as it is vulnerable to a conflict of interest resulting in biased findings and opinions. Nonetheless, Mr Marley actively disclosed the contingency payment arrangement, provided appropriate relevant findings, and the report was largely non-partisan.
11. The Marley report estimated the trees' age as 35-40 years and their ULE as > 40 years. Both trees were said to display good vigour, fair structural condition, sound branch unions, and no evidence of pest or disease. "[M]inor conflict" was identified between the fence and the tree bases. For Tree 1, DBH was noted as 560 mm, TPZ was 6.7 m and SRZ was 2.7 m, with both the latter two measurements indicating the radius of the relevant zone from the centre of the trunk. The DBH of Tree 2 was 380 mm, TPZ was 4.5 m and SRZ was 2.4 m.
12. The Marley report concluded that the trees and the fence can co-exist without causing future injury to the trees or damage to the fence and allow space for future tree root development. Mr Marley claimed the "trunk shaving" recommended by Mr Bury "would compromise the trees' structural integrity and provide a potential entry point for pest and disease; it is considered an unacceptable pruning practice and is not compliant with Australian Standard AS 4373 - Pruning of amenity trees".
13. Other summarised recommendations from the Marley report were:

(1) Tree sensitive techniques for fence post installation with non-destructive excavation techniques to protect roots and no severing of roots > 40 mm diameter.

(2) If a new fence is to be installed, fence panels affecting the trees should be designed to accommodate the trees' existing basal flare and future trunk development, with panel design approval by an AQF level 5 project arborist.

(3) Any future driveway within the TPZ of both trees shall not be located within 300 mm of the fence. Tree sensitive design techniques such as no-dig ground stabilisation and above ground load support systems are to be used for driveway construction with modular interlocking vehicle panels or similar permeable material placed above existing ground levels, to allow vehicles to pass over without damaging tree roots. All works shall be approved and supervised by an AQF level 5 project arborist.

(4) All underground services shall be routed and installed beyond the TPZ's of both trees. The AQF level 5 project arborist must be consulted about proposed route and methodology if an incursion into a TPZ is essential, and any excavation within the TPZ of both trees shall be by hand methods, hydro-vac or an airspade under AQF level 5 project arborist supervision.

1. With respect to s 7 of the Trees Act, 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.
2. As root buttresses of the trees were growing near or over the boundary, clarification of the trees' location was necessary to ensure the trees were "situated on adjoining land", as required by the Trees Act. When a tree straddles a boundary, for the purposes of the Trees Act, the tree is situated on adjoining land if it is wholly or principally on that land (s 4(3)). The Court has previously found, as in Dive v Lin & anor [2017] NSWLEC 1348, that to be principally situated on land, more than 50% of the area of the tree's stem, where it enters the ground, must be on that property.
3. From my site inspection and analysis of the LRS boundary determination, I was satisfied that more than 60% of each tree's stem, where they enter the ground, were positioned on the respondent's land. Therefore, the trees were principally situated on adjoining land.
4. Section 8(1) of the Trees Act requires the applicant to give at least 21 days notice of the lodging of the application and the terms of any order sought to:

(1) the respondent, and

(2) any relevant authority that would, in accordance with s 13, be entitled to appear in proceedings in relation to the tree, and

(3) any other person the applicant has reason to believe will be affected by the order.

1. Ms Slattery claimed Mr Dunn had not notified her about fence damage caused by her trees prior to lodging the application under the Trees Act on 19 December 2023. The satisfaction of the requirement at s 8(1) of the Trees Act is addressed in Ball v Bahramali & Anor [2010] NSWLEC 1334 (Ball). Section 14C(1) was considered in Ball, where s 14C(1) is the same requirement in Pt 2A as s 8(1) in Pt 2 of the Trees Act. Ball, at [38], says;

"38 With respect to Mr Gerathy's contentions concerning the notice given by the applicant and compliance with s 14C(1) the application was filed with the Court on 19 August. The date specified and stamped in the application by the Court regarding when the application had to be served on the respondents and other parties was 27 August. The matter was listed for a preliminary hearing on 21 September 2010. This information is recorded in the application; this was copied and made available to the applicant. Thus there was at least 21 days notice specified by the Court for the serving of documents and the preliminary hearing and therefore compliance with s 14C(1)."

1. In this case, the application was filed with the Court on 19 December 2023. The date specified and stamped in the application by the Court regarding when the application had to be served on the respondents and other parties was 30 January 2024. The matter was listed for a preliminary hearing on 20 February 2024. This information is recorded in the application; this was copied and made available to the parties. Thus, there was at least 21 days notice specified by the Court for the serving of documents and the preliminary hearing, and therefore compliance with s 8(1)(a) of the Act.
2. An Annotated Trees Act (annotated Act), available on the Court's website, assists with interpretation of the legislation by providing commentary about relevant cases. At page 30, with respect to s 8(1)(a), the annotated Act says; "It is clear that the 21-day period relates to notice of an application having been made not of an intention to lodge an application".
3. In the file, there was no evidence of service of the application documents on Council, as required by s 8(1)(b). Section 8(3) of the Trees Act provides the Court with powers to waive the requirement to give notice or vary the period of notice under this section if it thinks it appropriate to do so in the circumstances. Given the circumstances before me of an intense dispute requiring resolution, I waived the requirement to serve the application on Council. There was no requirement for the applicant to provide the application documents to any other authority or person.
4. Section 9 of the Trees Act details the Court's powers to make a broad range of orders, as discussed at length in Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (Robson); at [211] - [217].
5. The Court is next obliged to consider matters pursuant to s 10 of the Trees Act. Section 10(1)(a) requires that the applicant has made a reasonable effort to reach agreement with the owners of the land on which the tree is situated. In Robson; at [194] - [195], Preston CJ says:

"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."

1. Mr Dunn submitted a proposal to remove the trees in a letter to Ms Slattery of 18 September 2023, and Ms Slattery's agreed to remove the trees as required for the fence relocation in her, "Final Attempt to try to reach agreement" letter to Mr Dunn on 3 October 2023. Mr Dunn also noted engaging in onsite mediation, albeit unsuccessful, with the respondent under Acting Commissioner Peatman of the LEC on 16 October 2023, as directed by Pritchard J. Regardless that these tree removals were originally planned in conjunction with the erection of a new fence rather than in response to the application's damage claims, the Trees Act application from Mr Dunn proposing to remove the trees and replace the fence cannot be a surprise to Ms Slattery.
2. At [192] of Robson, his Honour said; "The Trees (Disputes Between Neighbours) Act 2006 does not prescribe any particular means by which an applicant must make a reasonable effort to reach agreement with the tree landowner", nor the manner of the applicant's negotiations. Consequently, I am satisfied that the requirement of s 10(1)(a) of the Trees Act has been met; that the applicant has made a reasonable effort to reach agreement with the owners of the land on which the tree is situated.
3. The next major test that is posed, by s 10(2) of the Act, is that the Court must be 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

1. I was satisfied that the buttressed roots and tapered lower trunks of the trees had damaged a section of the metal panel fence, with impact on 6 posts and 4 panels. Mr Dunn had also caused damage to 1 fence panel, most likely with his machinery.
2. The respondent submitted that the trees may not be the only cause of the fence damage and that a large tree that previously grew close by on the applicant's land likely also caused damage to the fence. However, the trees need only be a cause of damage to engage the jurisdiction and I am satisfied of the nexus between the trees and the fence damage. Conversely, as there was no trace of the former trees in the applicant's back yard, in the absence of evidence, Ms Slattery's claim of damage by Mr Dunn's tree or trees is mere speculation. Consequently, s 10(2)(a) of the Trees Act is engaged.
3. Mr Dunn claimed damage to his proposed concrete driveway, shown on the site diagram to abut the fence and the base of the trees. Though the DA is approved, the driveway does not yet exist and there is no timetable for its installation. Thus, one cannot assess the relative levels, the concrete thickness and strength of the driveway, or the position and proximity of roots.
4. The jurisdiction of the Trees Act covers past damage, current damage, and damage likely to be caused by a tree in the near future. Based on the decision in Yang v Scerri [2007] NSWLEC 592 (Yang), the near future is defined, as a rule of thumb, to be a period of one year. Even if the driveway had already been installed, a reinforced concrete driveway sufficiently strong enough to carry Mr Dunn's construction machinery, would usually resist the impact of thickening tree roots entirely or for a long period. Therefore, I am not satisfied that near future damage to the concrete driveway is likely in either of these circumstances.
5. If the jurisdictional test in s 10(2) is satisfied, s 9 of the Trees Act empowers the Court to make any order it sees fit to remedy, restrain or prevent damage to property or injury to persons. In making an order, the Court must consider relevant matters in s 12 of the Trees Act.

1. The trees' trunk bases and root buttresses are located immediately adjacent to and over the common boundary (ss 12(a)).
2. Section 12(b) considers whether interference with the tree/s would, in the absence of s 6(3), require any consent or other authorisation under the Environmental Planning and Assessment Act 1979 (EP&A Act) or Heritage Act 1977 and, if so, whether any such consent or authorisation has been obtained. In Exhibit B, Mr Dunn answered no to this question (18) and noted "[r]efer to arborist report". Although it listed current and historical repealed legislation and planning instruments, the Bury report provided no specific information informing this issue.
3. Submissions from the respondent addressed this consideration on two levels. Initially, Ms Slattery noted that the applicant's DA plans submitted to Council for assessment under the EP&A Act, did not include the respondent's Melaleuca trees, thus contravening Council's DA supporting document requirements in accordance with Chapter 6.6 of Gosford Development Control Plan (DCP) 2013. This stipulates neighbouring trees within 5 m of a proposed development and "all trees that may be affected by proposed buildings, access, services and bush fire protection zones" be included in a 'Tree Locations and Schedule', and that "[a]ll trees are to be plotted (by land survey) and numbered on the Development Application".
4. Regardless of being a licenced and experienced local building contractor, Mr Dunn pleaded ignorance of this and other Council DA requirements. Mr Dunn claimed that his DA application was prepared by allied professionals, and he signed it without reading it, consistent with his usual practice, without regard to whether Council DA requirements had been satisfied. That the DA was approved, apparently in absence of a site inspection to ground truth to the application, casts aspersions on Council's DA assessment process.
5. Ms Slattery submitted that permission for the trees' removal is required under Chapter 3.5 Tree and Vegetation Management of Central Coast DCP 2022, the jurisdiction of which sits under the EP&A Act. The respondent emphasised advice from Council, that "[o]nly the owner of the property can authorise the approval for the removal of trees on their property." As there were no criteria within Council's list of Exempt Tree Works that applied to the trees, Council permission would be required for their removal, contrary to Mr Dunn's answer at question 20 of Exhibit B.
6. Section 12(b2) considers the impact any pruning would have on the tree. Regarding Mr Dunn's proposed Order (3) for "Alternatively the trees are to be trimmed", while I concur with Ms Slattery that the desired pruning was unspecified, Mr Dunn was dissatisfied with the trees' canopies encroaching the common boundary. There is, however, no remedy for encroachment under the Trees Act unless the encroaching part is causing damage or likely to cause near future damage or risk of injury. As the trees' canopies did not satisfy these conditions, there was no reasonable basis to order canopy pruning.
7. The respondent appreciates the trees' beauty and amenity they provide by shading and cooling in summer. They contribute to the scenic value of the respondent's land, and add some intrinsic value to public amenity as they may be viewed from the street (subss 12(b3),(e) and (f)).
8. Though Mr Bury claimed this species was not endemic to this area, it is endemic and plentiful in east coast wetlands from Botany Bay to Cape York. Thus, the trees contribute to local biodiversity. Ms Slattery noted various birds and other wildlife that use the trees for food, roosting, or habitat (s 12(d)).
9. The trees would assist in absorbing water and reducing pooling. This species is adapted to low oxygen levels common to high water tables, reported as characteristic of this area. At par 42 of her affidavit, Ms Slattery said, "The trees are also perfect for the conditions as they also can tolerate wet feet or being inundated with water for periods of time. Considering their contribution and benefits these Paperbarks should be retained (ss 12(g))".

1. As s 10(2) of the Trees Act was satisfied by the trees causing damage to the fence, the Court may assess Mr Dunn's application pursuant to s 13A of the DF Act.
2. Mr Dunn wanted the fence moved to the boundary per the Cahill survey as this was the basis of his DA and was required to provide boundary offsets for his rear carport and the driveway adjacent the planned new dwelling consistent with his approved plans. As the boundary in the LRS survey boundary was 0.115 m south of the 'Cahill boundary' at the street and 0.125 m south at the rear corner, moving the fence to the boundary will no longer provide satisfaction of Mr Dunn's DA offset requirements. Moving the fence to the true boundary was the primary reason for Ms Slattery initially agreeing to a new fence and tree removals.
3. This reason for moving the fence has thus dissolved as the LRS survey determined the existing fence is almost on the boundary. The fence encroached 10 cm into Ms Slattery's land at the street corner and 9 cm into Mr Dunn's property at the rear corner, a net incursion onto Ms Slattery's land of about half a square metre.
4. Ms Slattery claimed the current fence is a satisfactory fence for the purposes of the DF Act and she preferred to repair and retain the fence. Ms Slattery had repeatedly advised Mr Dunn of her concerns about the welfare and security of her dogs being jeopardised by fencing works, but Mr Dunn rejected two options from Ms Slattery for replacing the fence that would have provided security for her dogs, both of which were detailed but not unreasonable.
5. Respondents wanting to retain trees causing damage are required to submit alternative options for mitigation of damage by trees. Accordingly, the Marley report included recommendations for fence panel modification to prevent additional fence damage, at least in the medium term. Ms Slattery provided a diagram of an example modified fence panel. Presuming the metal panels are standard, at 2.4 m long, the fence contained about 23 posts and 22 panels. The existing fence required replacement of only 6 posts and 4 panels by the respondent, and 1 panel by the applicant. The remainder of the fence appeared relatively straight, sound, rigid, and undamaged and the recommended fence panel modification provides for the replaced fence section to be positioned in a relatively straight line where it passes the trees rather than bowing towards the applicant's land, as is currently the case.
6. From the adduced evidence, I am therefore satisfied that the existing fence is a satisfactory fence for the purposes of the DF Act, subject to replacement of 6 adjacent posts and 4 adjacent panels commencing at the 2nd post and 3rd panel west of the back corner, and the 8th panel west of the back corner.
7. Fence post installation shall be undertaken by or under supervision of an AQF level 5 arborist (the arborist) and shall employ non-destructive excavation techniques to protect roots. Mr Marley recommended no severing of roots > 40 mm diameter while Mr Bury recommended no severing of roots > 25 mm. I also apply 25 mm as a default criterion, but such determinations are contextual, and a 40 mm maximum is not unreasonable with this tree species.
8. Modified fence panels should be designed to accommodate the trees' existing basal flare and future trunk development, with final panel design to be approved by the arborist. Installation of modified panels immediately adjacent the trees will require onsite collaboration between the arborist and the fencing contractor. These fencing works and associated arborist fees shall be at the respondent's expense.
9. Though it was required by Council, Mr Dunn failed to include the respondent's trees in his DA plans, thus denying Council the opportunity to determine appropriate protection for the trees from the impacts of his development. Nonetheless, both arborists included and/or recommended measures to protect the trees' roots during installation of the applicant's driveway and underground services, from which an appropriate protection program may be drawn.
10. The Bury report recommended "an AQF Level 5 Arborist should be on site during all future excavation works near the tree". The Marley report recommended any future driveway within the TPZ of both trees shall not be located within 300 mm of the fence. Tree sensitive design techniques such as no-dig ground stabilisation and above ground load support systems are to be used for driveway construction with modular interlocking vehicle panels or similar permeable material placed above existing ground levels, to allow vehicles to pass over without damaging tree roots. All works shall be approved and supervised by the arborist.
11. In Appendix 7, with respect to services, the Bury report said, "[a]ll underground utilities and drain or irrigation lines shall be routed outside the tree protection zone. If lines must traverse the protection area, they shall be tunnelled or bored under the tree. The site arborist should be present during any such works."
12. The Marley report similarly recommended service installation beyond the TPZ's of both trees. Any potential incursion into a TPZ requires consultation with the arborist about proposed route and methodology and any excavation within the TPZ of both trees shall be by hand methods, hydro-vac or an airspade, under supervision of the arborist.
13. Considering the arborist recommendations, and the fact that Melaleuca quinquenervia is tolerant of minor to moderate root damage, I have determined a regime that provides protection for the trees' roots while retaining the majority of Mr Dunn's concrete driveway, rather than the alternative surface treatments recommended by the Marley report. Though "modular interlocking vehicle panels or similar permeable material placed above existing ground levels, to allow vehicles to pass over without damaging tree roots" would provide greater aeration and moisture to the roots, I am satisfied that the utility and practicality of the applicant's development would be compromised if the concrete driveway area was significantly altered. Therefore, the concrete driveway shall be retained as planned, except for the area within 300 mm of the fence within the trees' TPZ's, which shall be filled with a porous material to protect the roots.
14. Nonetheless, preparation for installation of the concrete driveway within the TPZ's will likely require bridging over roots and may require areas of raft slab or slab on piers, as per AS 4790:2009, Protection of trees on development sites. Alteration of levels may also be required. This shall be determined by the arborist, subject to the location and characteristics of exposed roots.
15. Effective tree protection requires arborist determinations as circumstances unfold. The TPZ of Tree 1 was 6.7 m in the Marley report and about 4.9 m based on Mr Bury's figures. Though the Marley report figures are more likely to be correct, based on either TPZ determination, routing the applicant's stormwater pipes and services around the TPZ will be challenging. As some TPZ incursion is thus likely, sound arborist supervision and decision making is critical.
16. Considering the inconsistent and contradictory findings that characterised the Bury report and the repeated recommendation to cut sections out of the trees' trunks to accommodate the fence, contrary to sound arboricultural practice, I am not satisfied that Mr Bury is an appropriate project arborist. Conversely, Mr Marley has provided detailed findings and sound recommendations and is likely to provide effective tree protection in the role of project arborist.
17. Mr Dunn may contract any AQF level 5 arborist to supervise his construction works within the TPZ. However, as a consequence of the circumstances of the dispute between the parties and the reasonable expectation of the respondent to have her trees' roots genuinely protected, should Mr Dunn select a project arborist other than Mr Marley, Mr Dunn's chosen arborist shall be subject to prior approval by the respondent. Therefore, from a practical perspective, Mr Dunn is encouraged to employ Mr Marley as project arborist for construction works within the TPZ's.
18. Mr Dunn shall also replace the 8th metal fence panel west of the back corner at his expense.

1. Based on my inspection of the trees and the site, and documents supplied by both parties, I have reached the following conclusions:
2. The respondent's trees have damaged the common boundary fence. Orders shall be made for Ms Slattery to replace the section of tree damaged fence including modified panels to provide allowance for the trees' trunks and roots. Fence panel design and installation and post hole excavation shall be subject to supervision by an AQF level 5 arborist.
3. Mr Dunn omitted the respondent's trees from his DA and thus avoided consideration of his development's impact on the trees. Consequently, the Court has applied a protection regime based on a synthesis of both arborists' recommendations to protect the trees from root damage within TPZ's, while retaining a functional concrete driveway for the applicant. Prior to any excavation, compaction, or alteration of soil level, the applicant, at his expense, shall contract an AQF level 5 arborist to supervise all works within the TPZ's.
4. Though Mr Dunn considered fence modification around the trees an unsuitable option, many urban trees are located near and across boundaries and it is a common practice to modify fences and bridge over roots. The environmental benefits of trees are specifically included for consideration under the Trees Act. Though the trees may potentially cause damage in the long term, other than the cost of the tree protection measures imposed on the applicant, Mr Dunn will gain a relatively straight fence almost on the boundary and a concrete driveway with only a minor alteration from his DA plans. Simultaneously, the trees will continue to provide cumulative environmental benefits as a consequence of sound protection measures.
5. Ms Slattery proposed an alternative order to subpoena all documents associated with Mr Dunn's DA from Council. Under the Trees Act, however, the Court has no powers to make such orders.

(1) Within 90 days of the date of these orders, the respondent, at her expense, shall replace 6 posts and four panels of the common boundary fence, comprising the 2nd to the 7th post inclusive and the 3rd panel to the 6th panel inclusive, when considered from the fence's eastern end. The design of fence panels in alignment with trunks and roots of the trees shall be modified to accommodate the trees' existing basal flare and future trunk development.

(2) In conjunction with the works in Order (1), the respondent, at her expense, shall employ an Australian Qualification Framework (AQF) level 5 arborist with appropriate insurances, to supervise or undertake excavation of all fence post holes, determine and approve the design of modified fence panels, and collaborate with fencing contractors with respect to the installation of modified fence panels.

(3) Within 90 days of the date of these orders, the applicant, at his expense, shall replace the 8th panel of the common boundary fence when considered from the fence's eastern end.

(4) Prior to any excavation, compaction, alteration of soil level, or any other construction activity within the Tree Protection Zones (per the Arborist Report from Michael Marley of Bellevue Tree Consultants, dated 2 March 2024), the applicant, at his expense, shall employ an AQF level 5 arborist with appropriate insurances to supervise all construction activity within the Tree Protection Zones, including the concreting. Should Mr Dunn prefer to employ an AQF level 5 arborist other than Mr Marley, Mr Dunn's chosen arborist shall be subject to prior approval by the respondent.

(5) Should access be required to the other party's property to undertake works, each party shall provide all reasonable access, subject to at least 72 hours notice by email, advising the date and approximate start time of the works.

(6) The works shall be completed during reasonable daytime working hours.

27 June 2024 - Amendment made to paragraph 12 to refer to the Court moving to the applicant's property.

31 July 2024 - Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the "slip" rule), correction is made to paragraph [76] to refer to the correct party.