Foster v Norris

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – application to remove neighbouring tree – whether the tree has damaged or is likely to damage property – whether the tree is likely to cause injury – whether tree removal is required – the tree was there first – whether dwelling was constructed according to approved plans – who should pay for works – Pt 2A application – neighbouring tree – obstruction of sunlight – no jurisdiction for single tree

Legislation Cited: Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 6, 7, 9, 10, 12; Pt 2A, ss 14A, 14B, 14E, 14F
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, cl. 3.33

Cases Cited: Barker v Kyriakides [2007] NSWLEC 292
Black v Johnson (No 2) [2007] NSWLEC 513
Hendry v Olsson [2010] NSWLEC 1302
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152

Texts Cited: Australian Standard AS4373:2007 ‘Pruning of amenity trees’ (2007)
Safe Work Australia, ‘Guide to managing risks of tree trimming and removal work’ (2016)

Category: Principal judgment

Parties: Amy Foster (First Applicant)
Gareth Foster (Second Applicant)
Matthew Norris (Respondent)

Representation: A Foster (Self-represented) (First Applicant)
G Foster (Self-represented) (Second Applicant)
A Caruana (Agent) (Respondent, 8 January 2025 hearing)
M Norris (Self-represented) (Respondent, 11 February 2025 hearing)

File Number(s): 2024/395906

Publication restriction: Nil

Judgment

Background

1. COMMISSIONER**:** A large tree, a Hills weeping fig, grows in the back garden of 55 Morrison Road, Gladesville, owned by Matthew Norris. Judging by its size, it has grown here for many decades. After the neighbouring property at 53 Morrison Road was subdivided, two new attached dwellings were constructed on numbers 53 and 53A Morrison Road (‘53’ and ‘53A’ respectively), with construction completed during or about 2021. Surprisingly, given how recently these dwellings were built, parts of the dwelling at 53A are against or within a few centimetres of three large branches of the neighbouring fig tree, but words hardly capture the situation, so I include here two photographs from Exhibit C.

Figure 1. A branch of the fig tree against the dwelling (p 9 of Form H, Exhibit C).

Figure 2*.* The same branch from above (p 7 of Form H, Exhibit C)**.

2. Since purchasing 53A in 2023, Amy and Gareth Foster have faced numerous problems, some apparently foreseeable, others less so. A boundary retaining wall and fence have proven inadequate. The tree causes issues beyond the obvious one of conflict between its branches and their dwelling: they find it attracts animals and ‘pests’ and that it shades their garden and dwelling resulting in mould growth. These issues, they say, affect their health and wellbeing. The Fosters applied to the Court seeking orders both for removing the tree and for pruning the tree.

3. The hearing began on the footpath in front of the properties on 8 January 2025, allowing the Court to view the tree and both properties and to hear submissions from the parties. The Fosters were self-represented; Mr Norris was represented by his brother-in-law, Adrian Caruana, as agent. Mr Norris was overseas, but was connected to the hearing via a video call with Mr Caruana. During the hearing, Mr Norris interrupted to make submissions, which I did not allow as he had arranged to be represented by an agent, albeit an ill-prepared one, and taking additional submissions from Mr Norris via Mr Caruana’s mobile phone would make the hearing difficult to manage. Mr Norris’ tenant, Joanna Wilson, attended and attempted to assist Mr Caruana, eventually requiring me to ask her to stop interrupting. Councillor Roy Maggio, of Ryde City Council (Council), attended the hearing. He introduced himself as a councillor with an interest in preventing the retention of dangerous trees within the City of Ryde, attending to observe the hearing. However, Clr Maggio did more than observe, accompanying the Fosters during the inspection of their property and dwelling, assisting them by occasionally advising them of issues to point out to the Court. A handful of interested local residents also introduced themselves at the hearing’s opening.

4. Court hearings are of course open to the public, but most tree disputes are heard onsite, with the Court visiting properties and being shown issues from within dwellings, where public attendance is not always welcome or appropriate. Generally, the Court suggests that only the parties and their representatives and experts attend both properties, while each party can invite others as they see fit to attend the inspection of their own property. Should there be any reason to do so, including public interest, or at any party’s request, further evidence and submissions can be heard in a neutral space, such as on the footpath, or the hearing can return to a courtroom at the Court. Otherwise, for convenience, once the Court has viewed the relevant issues, the Court typically sits at a table at one of the properties, as agreed by the parties, to hear any expert evidence and submissions. The Fosters asked that only Mr Caruana and Clr Maggio be allowed onto their property, along with the Court. Mr Caruana asked that Clr Maggio be excluded from Mr Norris’ dwelling, where all other attendees gathered for the Court to hear further evidence and submissions.

5. At the conclusion of the onsite hearing orders were made for the Fosters to provide further information on the development consent for their property and the matter was adjourned. The hearing continued in Court on 11 February 2025 to hear submissions only on the additional evidence, with all parties self-represented. During the second hearing the Court refused Mr Norris’ attempts to make further submissions on other matters that had been addressed at the initial hearing.

6. The Fosters provided supporting evidence including: a report by Hossein Rahimi, engineer (Exhibit E); service reports from Quality Pest Management and Solutions (Exhibits F); a builder’s report (Exhibit G); a letter from other neighbours (Exhibit H); and the Complying Development Certificate (CDC) for their property (Exhibit J). Mr Norris provided: a report from Kallan Baker, engineer (Exhibit 2); a copy of Ryde City Council’s 2019 refusal of an application to remove the fig tree (Exhibit 3); and letters from Mr Norris’ tenant, other neighbours, and a previous owner of 53 Morrison Road (Exhibits 4 and 5). The Fosters and Mr Norris also filed other written material to support their cases. No experts attended the hearing. While I have reviewed all reports and documents in evidence, for the sake of brevity I refer below only to the material that explains the reasons for this decision.

Framework for this decision

Damage or injury

7. Pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), the Fosters have applied for orders to remove a tree on adjoining land. These are orders the Court can make at s 9 of the Trees Act if the Court is satisfied of the relevant jurisdictional tests. Firstly, at s 10(1) of the Trees Act, the Court must be satisfied that the Fosters have made a reasonable effort to reach agreement with Mr Norris and that they gave the required notice of the application. Secondly, at s 10(2) of the Trees Act, the Court must be satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or is likely to cause injury to a person. The Court must consider matters at s 12 of the Trees Act before making orders.

Obstruction of sunlight

8. The Fosters have also applied for orders to prune the tree pursuant to s 14B (Pt 2A) of the Trees Act. Part 2A gives the Court jurisdiction to make orders for ‘high hedges that obstruct sunlight or views’. Again, the Court must be satisfied that the Fosters made a reasonable effort to reach agreement with Mr Norris (s 14E(1)). In these proceedings, the Court must not make an order under Pt 2A unless it is satisfied that trees are severely obstructing sunlight to a window of the Foster’s dwelling (s 14E(2)(a)(i)) and the severity of the obstruction is such that their reasons for interfering with the trees outweigh those against interfering (s 14E(2)(b)). The Court must consider matters at s 14F of the Trees Act before making orders under Pt 2A.

The Pt 2A application

9. It will be simplest to deal with the Fosters’ Pt 2A application first, as determining this is straightforward. The jurisdiction of Pt 2A of the Trees Act is restricted at s 14A(1):

14A Application of Part

(1) This Part applies only to groups of 2 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).

10. Only one tree is the subject of the application: Mr Norris’ large fig tree. There is no group of two or more trees planted so as to form a hedge. Therefore, Pt 2A does not apply and the Court has no jurisdiction to make the orders sought pursuant to this Part. The Pt 2A application will be refused.

The Pt 2 application

Reasonable effort

11. The Fosters answered at question 6 of Form H (Exhibit C):

“On 9 July 2024 we sent an email to Melanie Pletersky from Cassidy Real estate requesting detail of property owner 55 Morrison Road to discuss “to discuss maintenance of a Tree”. Melanie advised she will be the conduit and requested photos.

On 11 July 2024 we sent another email to Melanie Pletersky from Cassidy Real estate advised (1) the large fig tree situated near the boundary is causing damage to our property and has raised safety concerns (2) several trees on the owners property is obstructing sunlight from reaching significant parts of the yard and house. A quote to have these trees pruned at 10% in line with council guidelines was provided by us, who paid half of the total cost.

On the 22nd July 2024 we engaged with the property agent of 55 Morrison Road, Gladesville, Melanie Pletersky from Cassidy Real estate who advised the owner of the property is in agreement to proceed with trimming of multiple trees on the property that was obstructing sunlight and causing concern, on the basis we contributed to splitting the payment in half. The pruning took place 01 August 2024. Despite a recent 10% trimming carried out by an arborist the size and scale of the Ficus microcarpa var. hillii made this intervention largely ineffective. The arborist took care to avoid harming the tree and causing an imbalance, however the minimal impact of the trimming is evident and concerns remain.”

12. The Fosters also sought, without success, to arrange mediation with Mr Norris through the Community Justice Centres. I am satisfied that the Fosters made a reasonable effort to reach agreement with Mr Norris. The hearing timeframe set down by the Court allowed for the required notice of the application.

The tree

13. The parties filed no expert evidence from arborists. Relying on my own arboricultural expertise and experience, I made observations of the tree from within both properties.

14. The tree, a Hills weeping fig (Ficus macrocarpa var. hillii), stands in Mr Norris’ back garden against the common boundary shared with the Fosters. It is approximately 20 metres tall with a stem approximately one metre in diameter. The tree’s broad crown, which spreads over both properties, has good foliage density and its recent growth indicates the tree’s good vigour. The tree’s form is typical of the species, with several primary branches arising from the stem and joined by relatively narrow forks with some bark inclusion. I saw no signs of major branch failure and, on my observations, significant parts of the tree are unlikely to fail in the foreseeable future.

Damage to property

Direct damage through contact and growth of branches

15. One large primary branch is in contact with a roof gutter over the Fosters’ ground floor, as shown in photographs included above. The gutter is already slightly bent, and will inevitably become more so as the tree grows, and possibly with the branch’s movement during strong winds.

16. The Fosters instructed Mr Rahimi as follows:

“This report is to evaluate the structural damage caused by the tree, which is owned by property of 55 Morrison Road, Gladesville 2111. This includes visible existing damage to our gutter, concerns on the impacts due to thick tree trucks millimetres from our building and the unknown concern of the damage the tree roots will or are doing to our footings (by looking at the size of these on the property of 55 Morrison Road and along the boundary fence our concern of the safety risk has heightened as the roots will extend for quite a few meters across multiple properties).”

17. Mr Rahimi observed the branch against the gutter, noting (pp 4 and 5, Exhibit E):

“The trunk has already been exerting lateral pressure to the roof box gutter bending the gutter, the lateral pressure would eventually transfer to the top of the masonry wall as well. In our opinion, it is not structurally feasible to strengthen the roof & supporting structure to withstand against excessive lateral pressure from a live growing tree.”

18. On p 6 Mr Rahimi included a photograph and wrote: “The following photo shows that the part of the main trunk of the tree is within the 53A Morrison Road, and has already bee [sic] exerting lateral and vertical pressure to the structure of the building.” The photograph does not show any signs of lateral or vertical pressure being placed on the building’s structure and no damage can be seen in the photograph.

19. Another two large branches are within 50 millimetres of two walls near a corner of the Fosters’ first floor. They have not yet caused visible damage to the dwelling, but as they grow or as they move in strong wind, they are likely to contact the walls in the near future.

20. Together, the three branches described above have caused, or are likely in the near future to cause, damage to the applicants’ dwelling, allowing the Court to make orders (s 10(2)(a) of the Trees Act).

Damage caused by the tree’s roots

21. Mr Rahimi included in his report (p 7) a photograph of the fig tree encroaching slightly across the common boundary at its base, and measured it to be 700 mm from the wall of the Fosters’ dwelling. He stated that plans show the dwelling to be 900 mm from the common boundary.

22. On pp 10 and 11 of his report, Mr Rahimi discussed the ‘expected extent’ of root growth beyond the Fosters’ dwelling’s footings and beneath their dwelling. No investigations were carried out to demonstrate the presence of such roots. Mr Rahimi described that bored piles extend 300 mm below ground and says they “…would be below the tree root level”.

23. In his conclusions, Mr Rahimi wrote:

“Based on our [sic] observations and above-mentioned items, in our [sic] opinion, considering proximity of the growing existing tree to the foundation of the existing building in 53A Morrison Road, the growing root tree would damage foundation of the building severely, leading to the instability of the building and hence, exposing habitants of the building to a safety risk…”

24. Mr Rahimi’s report does not contain sufficient reasoning to lead to the conclusions, firstly, that fig tree roots will severely damage the dwelling’s foundations or, secondly, that this would be so severe as to make the dwelling unstable and put its occupants in danger.

25. Mr Baker, in his report (Exhibit 2), observed that the soil level within 53A has been raised with standard soil fill that has not been adequately compacted to the extent required by the Building Code of Australia 2019 (BCA) in its version relevant at the time of construction. Should the dwelling suffer structural issues, Mr Baker thought it would be more likely due to the poor quality of its design and construction. Mr Baker’s report is clearly set out, with reasoning based on observations and facts. In general, I accept his findings over those of Mr Rahimi where they differ.

26. The Court cannot be satisfied that the fig tree’s roots are likely to cause damage to the Fosters’ property within the near future.

Damage to stormwater and sewer pipes

27. The Fosters submitted that pipes on their property became blocked and required clearing of roots from the fig tree. No evidence was provided in support of this. I cannot be satisfied that the tree’s roots have damaged the Fosters’ stormwater or sewer pipe, or that they are likely to do so in the near future.

Falling branches

28. Some smaller branches over the Fosters’ dwelling show signs of overextension, increasing their likelihood of failure. Should one of these fall onto the dwelling’s roof, it would be unlikely to cause any significant damage.

Debris

29. Debris that falls from the tree fills the Fosters’ roof gutters. It falls on other surfaces. If any of this causes damage, I would not make any orders on this element of the application, applying the 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 ordinarily will not provide the basis for ordering removal of or intervention with an urban tree.”

Mould

30. The Fosters say that the tree shades their property, causing mould to grow on walls. They engaged On Point Building Projects to remove mould and repaint walls. In a report of 4 November 2024 (Exhibit G), Joseph Mehrez of On Point Building Projects wrote:

“The repainting work was necessitated due to the presence of mould and wear on the external walls, particularly those affected by the tree. The work was completed on the 1st of July, 2024.”

31. If the tree has caused mould to grow on the Fosters’ walls, I would not make any orders on this element of the application, relying on the discussion and principle established in Hendry v Olsson [2010] NSWLEC 1302 at [10]–[14]:

“10 We have reached that conclusion concerning the two separate elements of their claim under Part 2 for the following reasons:

11 With respect to the deposition of seeds, leaves and other detritus from the trees located on the Olssons’ property onto the Hendrys’ property, the Court published a tree dispute principle in the case of Barker v Kyriakides [2007] NSWLEC 292 that says that, for those persons who have the environmental and aesthetic benefits of trees in urban areas, it is appropriate to expect and require that ordinary reasonable maintenance will be undertaken to deal with the deposition of fruit, nuts, berries, leaves and the like from such trees. We adopt and apply that principle here.

12 Second, with respect to the suggestion that there is mould and slime and the like created as a consequence of the shading of the steps and under pergola’s paved area, we are satisfied that two matters are relevant to our consideration.

13 First, we could not be satisfied, as a matter of fact that, assuming that such mould and slime were to be present [which was not obvious on the site inspection this morning], the total cause of such incidence was the trees on the Olssons’ property rather than a significant contribution being made by the shading by the pergola structure itself and its attendant shade cloth.

14 Even if we were to conclude that the pergola and the shade cloth made no contribution (which we do not), we are satisfied that we should indicate that a proper extension of the tree dispute principle enunciated in Barker v Kyriakides is a supplementary principle that, for the same reasons of having the benefit, environmental and aesthetic, of trees in an urban area the responsibility for ordinary maintenance of a property should extend to the cleaning of such surfaces as paving and paths and the like.”

Injury

32. The Fosters raised several health issues in writing (Exhibit D) and during their submissions at the onsite hearing. They say that insects have been an issue in their dwelling, despite pest control treatments by Quality Pest Management and Solutions on 3 June 2024 and 4 July 2024. The Fosters find flying insects in their main bedroom, en-suite and an office area. Insects were also found in their roof cavity. Quality Pest Management and Solutions recommended on their second report that the fig tree be ‘cut back’. The Fosters say that subsequent pruning of the tree had no effect.

33. The Fosters are concerned of health risks associated with bats that visit the tree and bat droppings, and disease they might spread.

34. Berries and other debris fall onto the Fosters’ roof at night, interrupting their sleep and causing them distress.

35. Despite the Fosters’ concerns, I am not satisfied that the tree is likely to cause them injury. Insects and bats, and diseases they might spread, may be a nuisance and might even impact someone’s health, but that does not fall within the jurisdiction of the Trees Act, which only applies to injury caused by trees, not by animals: see Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 at [189]. Orders to be made below will likely reduce the amount of debris falling onto the Fosters’ roof.

Consideration of s 12 matters

36. Because the tree has caused, or is likely in the near future to cause, damage to the Fosters’ property (see findings above at [20]), orders can be made to remedy, restrain or prevent damage to the Fosters’ property. The Court is to consider matters at s 12 of the Trees Act before making any orders.

37. The tree is close to the common boundary. Its lower stem is less than a metre from the Fosters’ dwelling; its canopy spreads over the Fosters’ dwelling.

38. Ryde City Council’s consent is required to prune more than 10% of the tree’s crown (other than deadwood), or to remove the tree, or to carry out any works within its structural root zone. Council refused Mr Norris’ 2019 application to remove the tree. Their determination cited the following reasons for refusal:

“…[the tree] appeared to be in a healthy condition with no obvious structural defects. Furthermore the tree’s removal could not be warranted at this time for the following reasons:

1. The tree forms an integral part of the Urban Forest canopy and should be retained as per the Development Control Plan 2014 Part 9.5 Tree Preservation.

2. The tree appears to be in good health and good structural condition.

3. The tree currently does not appear to pose a danger to people or property.

4. The tree enhances the visual amenity of the streetscape and adds to the overall character of the area.

5. The tree provides a visual screen for neighbouring properties.”

39. Removing the three branches discussed above at (15)–(20) to prevent them causing damage to the Fosters’ dwelling would remove a significant portion, and significantly more than 10%, of the tree’s overall canopy. Some secondary branches over the Fosters’ dwelling would require some reduction, as they would be exposed to new wind forces following removal of the three branches. Fig trees are very tolerant of pruning and the tree would remain viable if pruned in this way.

40. The tree contributes to the amenity and landscape value of Mr Norris’ property. It provides significant ecosystem services including shading and cooling, reducing water run-off, and pollutant removal. It has stored a large amount of carbon, absorbed from the atmosphere, and will continue to add to this while it remains here. The tree’s benefits were also noted earlier in Council’s determination. Most of the tree’s canopy is above sightlines between the properties, but a small amount of foliage on lower branches contributes to privacy. The tree’s large canopy is visible from the street and surrounding properties, and significantly so. It contributes to public amenity.

41. Although the Fosters see the presence of bats as a problem, Mr Norris pointed out the tree’s significant habitat value, attracting not only bats but various birds and other fauna.

42. At s 12(h) of the Trees Act, the Court is to consider anything other than the tree that might have contributed to, or be likely to contribute to, damage to the applicants’ property. This includes any act or omission by the Fosters, and any steps they or Mr Norris have taken to prevent or rectify damage.

43. The parties generally agree that issues with the retaining wall and fence along the common boundary are caused by failures in their design and construction, rather than the tree. The retaining wall is subject to a claim by the Fosters against the builder as a defect. Relying on Mr Rahimi’s report, the Fosters submit that the tree’s roots will damage their dwelling, but Mr Rahimi’s findings on this issue were not corroborated by material evidence in any way. On the other hand, the tree’s stem and buttress roots provide support to the land between the boundary and the Fosters’ dwelling. Removing the tree may adversely impact the stability of the ground, potentially causing structural implications for their dwelling. Even without the tree’s removal, Mr Baker’s opinion was that the poor design and construction of the retaining wall and dwelling compromise the dwelling’s structural integrity. He recommended (on p 12) extensive works that should be undertaken to rectify these issues. The risk he described is not caused by the tree, so his recommendations are not included in the orders, other than considering those that will avoid harm to the tree if works are undertaken.

44. The Fosters did not design and build their dwelling, but little has changed between the time they bought it in 2023 and the time of the hearing. The development plans and the CDC for their property were documents they could access at the time of their purchase. During the onsite hearing the Fosters submitted that their dwelling was constructed in line with the relevant development consent. Mr Norris thought otherwise – notably, that the ground floor section of their dwelling nearest the tree was supposed to be an alfresco area, but had been built in, resulting in contact between the dwelling and the tree.

45. The CDC (Exhibit J), and plans within it, are stamped “Pyramid Building Services, Reference 21-PYR222(B), Date 12/10/2022, Youssef (Joe) El-Masri, Building Surveyor, BDC0461.” All plans show the fig tree adjacent to the common boundary and a circle with a 3-metre radius around the tree extending into 53A. As Mr Baker noted, this marks the minimum setback to development under cl 3.33(2) of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (the SEPP), which states: “Development under this code must be at least 3m from each protected tree on the lot and an adjoining lot (measured from the base of the trunk of the tree).” The stamped Ground Floor Plan shows the set-out of the two new dwellings, 53 and 53A, to be a mirror image of each other from the front of each dwelling, through the garage, laundry, bathroom, hall and stairway, Bedroom 1, pantry and living area. Only the back sections of the dwellings differ – 53 continues to span the full width between the side boundaries for the kitchen and dining area, while 53A steps away from the north-western boundary to avoid the 3-metre circle around the neighbouring fig tree. This pushes the kitchen at 53A a bit further out to the back. Where 53 has a large alfresco area spanning most of the property width behind the kitchen and dining area, 53A has a smaller alfresco area between the kitchen and the north-western boundary, encroaching slightly into the 3-metre circle. The stamped First-Floor Plan shows a non-trafficable pebble roof above the alfresco area, but reaching all the way to the northwestern boundary, despite the presence of the fig tree’s primary branches above the boundary in that location. Despite cl. 3.33(2) of the SEPP, subclause (3) allows an awning, blind or canopy within 3 metres of a protected tree if works do not involve excavation or fill of more than 150 mm.

46. The Fosters submitted that the alfresco area had simply been closed in, but that is not the case. The alfresco area was extended to the building line, 900 mm from the boundary and even closer to the tree, and then closed in by walls with a roof over. A balcony covers part of the area above that was shown as a non-trafficable pebble roof. The dwelling has been built in accordance with earlier unapproved versions of the plans, despite later amendments required for approval. Those earlier plans, included in Mr Rahimi’s report, show the structural drawings for the slab with piers and the concrete slab continuing 900 mm from the boundary to the back of the dwelling, and less than 700 mm from the tree. This is what was built. The slab was built at the time of the dwelling’s initial construction, completed by February 2023. Later, around March–April 2023 (Exhibit 4), the alfresco area was extended to the edge of the slab and closed in. The gutter that is now bent by the tree was added, although it was not shown on even the earlier version of the plans. It seems that the alfresco area was constructed by stealth in line with the earlier unapproved version of the plans.

47. The dwelling, as built, is not in accordance with the approved plans and does not comply with the SEPP. The Fosters purchased the dwelling apparently unaware of this. They omitted to undertake searches that would have revealed this. Furthermore, they knew the fig tree was there, next to and overhanging their dwelling, when they purchased it. While it might be unreasonable to now expect them to take steps to change the structure of their dwelling, these facts weigh more towards pruning the tree to avoid direct damage, rather than removing it. (I considered the possibility of ordering changes to the dwelling, in accordance with the approved plans, to minimise the extent of pruning required to avoid damage. Mr Norris submitted that removing the relevant branches would be reasonable now that the Fosters’ dwelling is built.)

48. Mr Norris has not contributed to the Fosters’ issues in any way. The damage that has occurred to the Fosters’ dwelling, and is likely to occur, is not a result of his negligence. Had the Fosters’ dwelling been constructed in accordance with approved plans, it may be that no works would be required to the tree. In Black v Johnson (No 2) [2007] NSWLEC 513 the Court established the following principle at [15]:

“Tree Disputes Principle

The existence of a tree prior to the construction of a structure which has subsequently been damaged by the tree is not a matter likely to be taken into consideration on the question of whether or not some order should be made for interference with or removal of that tree or other remedial work. On that question, the seriousness of the damage and any attendant risks are the primary matters for consideration.

If interference with or removal of the tree or other work is warranted because of the extent of the damage the tree has caused or risks now posed by the damage, the fact that the tree was already growing in the vicinity at the time the structure was built is a matter which may be relevant and appropriate to take into account on the question of who should undertake any work and/or apportionment of the cost of such work.

However, it will also be relevant to consider whether or not the tree was self-sown or was planted. If it was planted, consideration will need to be given to the appropriateness or otherwise of:

the type of tree planted; and

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

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

49. The above principle has been applied in cases where the actions of the applicant have required interference with the tree. The Fosters may feel that it is not their doing, but the issue was there for all to see when their property was on the market, and was substantial enough to have influenced its selling price. For this reason, the Fosters will bear the cost of pruning works. Pursuant to s 6(3) of the Trees Act, they do not require Council’s consent to carry out the tree works ordered below.

Orders

50. The Court orders:

51. The Pt 2A application is refused.

52. The Pt 2 application to remove the tree is refused. The following orders are made under the Pt 2 application.

53. The applicants are to engage and pay for a suitably insured and qualified (minimum AQF level 3) arborist to prune the tree within 60 days of the date of these orders as follows:

(a) Remove the three branches that contact or are close to contacting the applicants’ dwelling (see photos in Annexure A); (b) Reduce other branches over the applicants’ dwelling to minimise risk of branch failure, considering the loss of the three branches in Order (3)(a), ensuring that this additional pruning amounts to no more than 10% of the tree’s live crown mass; (c) Remove deadwood that is greater than 50 mm in diameter over the applicants’ property.

4. The works in Order (3) must be done in accordance with AS 4373 ‘Pruning of amenity trees’ and the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.
5. The applicants are to give the respondent at least 7 days’ notice of the works in Order (3). When giving notice of the works, the applicants are to provide the respondent with copies of the arborist’s qualifications and relevant insurances.
6. The respondent is to allow any access required for completion of the works in Order (3) during reasonable hours of the day.
7. If works are undertaken to remedy the defective retaining wall, the applicants are to consider the recommendations on p 12 of Mr Baker’s report (Exhibit 2). The respondents are to ensure that the tree is not damaged during the works, and that all parts of a replacement retaining wall allow sufficient clearance to the fig tree for its continuing growth.
8. The exhibits are returned other than exhibits A, B, C and 2.

D Galwey

Acting Commissioner of the Court

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Annexure A (615 KB, pdf)