Gibbs v Day

Cases Cited: Barker v Kyriakides [2007] NSWLEC 292
Colling v Wilson [2009] NSWLEC 1061
Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Welsh v Radford [2023] NSWLEC 1095
Yang v Scerri [2007] NSWLEC 592

Texts Cited: Inner West Development Control Plan 2023

Category: Principal judgment

Parties: Gary Gibbs (Applicant)
Craig Day (Respondent)

Representation: G Gibbs (Self-represented) (Applicant)
C Day (Self-represented) (Respondent)

File Number(s): 2025/207780

Publication restriction: Nil

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Background

1. COMMISSIONER: Mr Gibbs, the applicant, owns and occupies a long, narrow property in Rozelle. The east-west boundary on Mr Gibbs’ northern side is ostensibly the rear boundary of Mr Day, the respondent. I say ostensibly because a narrow strip of Inner West Council (Council) land, used in bygone days as a ‘dunny lane’, extended along the rear of Mr Day’s property, notwithstanding that the Council land behind the respondent’s land had been subsumed into Mr Day’s backyard prior to his purchase in November 2009.

2. A mature Weeping Lilly Pilly (the tree), growing in the respondent’s rear yard around 1-2 metres (m) from the common boundary, is about 15m tall with a canopy spread averaging about 10m. It had been planted in or around 2001 and had a trunk diameter at breast height (DBH) of about 0.7m.

3. Branches overhanging Mr Gibbs’ rear yard and dwelling had previously been heavily pruned to near the boundary, but overhanging regrowth now comprises about 25% of the tree’s canopy. Mr Day valued the tree highly, but for Mr Gibbs, it caused property damage, excessive shading, and unwanted maintenance.

4. Prior to 2023, branches of a tree on Council land (the ‘Council tree’) also overhung the applicant’s rear yard. Though Mr Day contested Mr Gibbs’ identification of the ‘Council tree’ as a Cape Chestnut, its identification was not relevant in this instance. The ‘Council tree’ died around 2021-22. Following complaints about dead branches falling onto Mr Gibbs’ land, Mr Day organised for Council workers to remove the ‘Council tree’ in or around 2023.

5. The tree’s roots had allegedly damaged the common boundary fence and a retaining wall, and lifted brick pavers in the applicant’s rear yard. Mr Day had repaired and or replaced the fence and retaining wall at his expense. Mr Day had also previously lifted and flattened the applicant’s brick paving at his expense and had arranged to repeat such works.

6. Mr Gibbs, who purchased or occupied his property in 1966, had suffered numerous blockages of terracotta sewer pipes which he attributed to roots from the tree. Mr Day claimed he received Mr Gibbs’ initial notification and payment request for sewer pipe blockage in March 2018, notwithstanding that Mr Gibbs’ evidence included plumbing receipts from 3 March 2009 and 18 February 2014.

7. After Mr Day sought evidence from the applicant that the March 2018 sewer incursion was caused by roots from the Weeping Lilly Pilly rather than the ‘Council tree’, Mr Gibbs’ email reply on 4 April 2018 included, “I am happy with the work the plumber did with the sewer and OK to have covered the cost of that because, as you said, I'm not sure of the origin of the roots that were the problem”.

8. In response to concerns Mr Gibbs expressed about the safety of the tree, Mr Day consulted Ms Margot Blues, an Australian Qualification Framework (AQF) level 5 arborist, who inspected the tree. In an email to Mr Gibbs on 18 April 2018, Mr Day advised that Ms Blues said the tree was “young and healthy” with “no dead wood” and “is low risk and safe”.

9. Mr Day relayed Ms Blues’ advice that the Court would not consider fruit and leaves falling from a tree as sufficient grounds for tree removal, and the Court expects neighbours impacted by tree debris to be responsible for their own yard maintenance. Ms Blues cautioned against pruning branches overhanging Mr Gibbs’ land, as such pruning would constitute 15-20% of the tree’s live canopy, which she deemed as excessive, and was likely to encourage vigorous regrowth and a thicker long-term canopy. Ms Blues opined that Council would be unlikely to grant permission required for such pruning, and that the Court was unlikely to accept that the tree and the bamboo (and or the Council tree) formed a hedge under the Trees (Disputes Between Neighbours) Act 2006 (NSW) (Trees Act).

10. In July 2020, Mr Gibbs’ sewer pipe was again blocked by roots. In the absence of evidence showing whether the roots were from the Weeping Lilly Pilly rather than the Council tree, Mr Day declined responsibility for the root blockage. Nonetheless, in an email of 10 July 2020, Mr Day proposed he pay half the cost of relining Mr Gibbs’ damaged sewer pipes. Mr Gibbs agreed, subject to Mr Day paying an additional $495.00, to reimburse the plumber’s fee for the 2020 pipe clearing.

11. Across four emails exchanged on 14 July 2020, Mr Gibbs accepted Mr Day’s ‘final offer’ which included the additional $495.00 and agreed to Mr Day’s request to “undertake the work asap”. On 15 July 2020, Mr Day advised Mr Gibbs that he had “transferred $250.00 to your account. I will transfer remaining $245.00 plus agreed 50% of pipe relining cost once work is done”.

12. Notwithstanding temporary immobility from recent foot surgery, Mr Gibbs committed to organising plumbing quotes within a few weeks. However, on 29 July 2020, Mr Gibbs emailed Mr Day about “some serious blockage issues with the Sydney Water sewer pipe going from Hanover St down the back of our houses towards Goodsir Street”. Mr Gibbs said Sydney Water agreed to “try to arrange” a copy of their works report for him, and “[as] I’m still fairly immobile I plan to hold off on the re lining quote until I can see the report”. Although Mr Gibbs said, “I’ll keep you posted when I hear back from Sydney Water”, Mr Day heard nothing more about the Sydney Water works report and Mr Gibbs did not procure relining quotes or undertake the sewer pipe relining for more than four years.

13. After Mr Day refused Mr Gibbs’ requests for reimbursement of pipe clearance costs incurred in May and December 2024, and January 2025, Mr Gibbs engaged a lawyer, who made various demands on the respondent. Mr Day responded with a proposal for Mr Gibbs to fulfil the original agreement from 14 July 2020 to have his sewer relined, towards which Mr Day would pay 50% of the cost and pay the $245.00 outstanding from the 2020 plumbing invoice of $495.00.

14. Based on a paid invoice from Sydney Blocked Drains which included, “All Pipe Relining undertaken is back [sic] by a 50 year warranty”, it appeared the sewer pipe relining was completed on or around 28 January 2025. The parties agreed to the terms proposed by Mr Day on 13 February 2025, and Mr Day paid Mr Gibbs $4,264.00 on the 14 February 2025.

15. Nonetheless, Mr Gibbs subsequently wanted Mr Day to take full financial responsibility and reimburse his $4019.00 payment for pipe relining. Mr Gibbs also sought compensation for repairs to his rear ground floor timber deck that was damaged by plumbers during root clearing works in 2024.

16. Along with tree debris, winter shadowing was a persistent problem for Mr Gibbs, who claimed the Weeping Lilly Pilly and a clump of Slender weavers bamboo (the bamboo) formed a hedge that severely obstructed sunlight in late autumn and winter, to his first-floor rear balcony and sunroom, glass doors, solar panels, and back yard BBQ area. Mr Gibbs suggested the now absent dead ‘Council tree’ had been part of the hedge which also contributed to sunlight obstruction.

17. Consequently, Mr Gibbs made an application, pursuant to s 7 of Pt 2 and s 14B of Pt 2A of the Trees Act, seeking removal of the tree and bamboo, reimbursement of 2024-25 plumbing costs and legal fees, and payment of the cost of pending deck repairs.

The onsite hearing

18. Both parties were self-represented at the onsite hearing. The tree and the bamboo were initially assessed from the respondent’s land, then the fence, retaining wall, paving, and shadowing of the deck were inspected in the applicant’s property, followed by oral submissions.

The applicant’s submissions

19. Part 2 – damage and injury: Mr Gibbs noted that the common boundary fence and retaining wall were replaced or repaired after damage caused by the tree’s roots and that brick pavers in the back yard needed “ongoing and constant lifting and cutting back of roots under them”. He contended that the common boundary fence and retaining wall were again being displaced by roots. In a submission of ‘Applicant Material’ dated 15 July 2025, Mr Gibbs claimed “Mr Day has also agreed to pay for repairs and relaying to my backyard pavers but has withdrawn offer to put in root barrier”.

20. Mr Gibbs alleged the tree was responsible for “[m]ultiple root intrusion issues to sewer pipes causing overflowing into backyard and backing up into bathroom of house” which required repeated sewer clearing by plumbers, at considerable cost.

21. Notwithstanding that on 13 February 2025, the parties agreed in writing to reinstate the terms of their 2020 agreement to equally share the cost of sewer pipe relining, Mr Gibbs submitted that Mr Day should take full responsibility for the pipe damage. In his email response (the response) of 28 July 2025 to Mr Day’s submission of 23 July 2025 (the submission), Mr Gibbs said, “I have always believed it is the position of the Trees Act that you are FULLY responsible and liable. I will stick to that position …”.

22. Mr Gibbs thus contended that Mr Day should reimburse Mr Gibbs’ $4019.00 payment for 50% of the pipe relining cost, in addition to the 50% contribution of $4019.00, that Mr Day paid Mr Gibbs on 14 February 2025.

23. The applicant provided opinions from plumbers which attested that roots causing pipe incursions came from the tree. At page 1 of the response, Mr Gibbs claimed, “[r]eports and assessment from Sewer Specialist and Plumbers are accepted by LEC as evidence. The three specialist reports in 2024 hold the Lilly Pilly responsible. Do you deny this?” Mr Gibbs also noted the ‘Council tree’ could not be responsible for sewer damage that occurred in 2024 and 2025 as the ‘Council tree’ was removed in 2023.

24. At page 2 of the response, Mr Gibbs noted, “[y]ou have not rejected responsibility for the rehabilitation of my lower decking which had to be cut open to access the pipes in 2024 when sewage backed up into the house to inside our shower recess. So I will be asking the inspector to include this repair in my claim”. Mr Gibbs included a quote of $1976.24 for deck repairs from Thompson Bros of Davies Road, Padstow. However, the quote did not show the services Thompson Bros provided or list licences relevant to the works. An internet search indicated that Thompson Bros’ services included Security alarms, camera hire, and site security monitoring, but nothing resembling deck repairs.

25. Mr Gibbs contended the tree was “[d]ropping very large amounts of branches, seeds and fruits into our yard and on top of our BBQ area and table. It is no longer safe to have friends or grandkids over for outdoor backyard BBQ or lunch”. Mr Gibbs claimed bird droppings on the table and the presence of cockroaches were caused or exacerbated by the tree and that dead branches from the Council tree falling into his yard caused potential damage and risk between the death of the Council tree’ around 2021-22 and its removal in 2023.

26. In the response, Mr Gibbs said he was seeking bamboo removal because of Mr Day’s failure to prune the bamboo back from his property to mitigate impact on the side of his dwelling, regardless of multiple requests.

27. Finally, Mr Gibbs sought reimbursement of his legal costs, on the basis that his resort to legal assistance was forced by the respondent’s refusal to undertake mediation through a Community Justice Centre (CJC), on two occasions.

28. Summarised proposed orders under Pt 2 of the Trees Act:

29. Remove the Lilly Pilly tree and the ‘High Bamboo Hedge’, at the respondent’s expense.

30. Reimbursement of $4000.00 for Mr Gibbs’ 2025 pipe relining cost (although Mr Gibbs claimed for reimbursement of $4000.00, the relining invoice was $8038.00, thus 50% was $4019.00) plus $1900.00 for the aggregated cost of sewer repairs in 2024 and 2025.

31. Reimbursement of $2400.00-$2500.00 for legal fees.

32. Assurance from Mr Day that he will take full responsibility for any ongoing or future damage by the tree/hedge to the fence, retaining wall, pavers, and sewer pipe.

33. Part 2A – high hedges: Mr Gibbs contended that bamboo is considered a tree and that two trees form a hedge under the Trees Act. Therefore, the Lilly Pilly and the bamboo formed a hedge which overshadowed the applicant’s land and the upstairs deck and sunroom at the eastern end of the dwelling “receives practically no sunlight” after about 9:30 AM during winter.

34. At page 2 of the response, Mr Gibbs said, “I have complained most strongly about loss of sunlight in WINTER, the months May, June, July, August when the balcony deck was important to us.”

35. Summarised proposed orders under Pt 2A of the Trees Act:

36. Remove the Lilly Pilly tree and the Bamboo hedge causing blocking of sunlight, at the respondent’s expense.

The respondent’s submissions

32. Mr Day submitted that the orders the applicant is asking the Court to make should be dismissed on the following grounds. Firstly, Mr Day said no response was currently needed to Mr Gibbs’ claim for legal fees as “the issue of legal costs is not able to be decided at the final hearing” and “the applicant will need to make a further application to the LEC in relation to this”.

33. Part 2 – damage and injury: According to Mr Day’s records, the applicant’s sewer was blocked on multiple occasions in 2018, 2020, 2024, and 2025. With respect to Mr Gibbs’ invoices for pipe clearance prior to 2018, Mr Day noted that an invoice from 3 March 2009 preceded his property purchase. Mr Day allegedly had “no record or memory of” an invoice from February 2014.

34. Mr Day claimed he received Mr Gibbs’ initial notification and payment request for clearance of sewer pipe blockage in March 2018. Following correspondence, Mr Gibbs’ indicated that he considered paying for root clearance was reasonable, given ambiguity as to whether the Weeping Lilly Pilly or the ‘Council tree’ was the source of the roots.

35. Although Mr Day denied responsibility on the same basis when roots blocked the applicant’s sewer pipe in July 2020, Mr Day proposed paying half the cost of sewer pipe relining. Mr Gibbs agreed, subject to Mr Day also paying $495.00 as reimbursement of the 2020 pipe clearance cost.

36. When approached for reimbursement of pipe clearance costs incurred in May 2024, Mr Day said:

“I replied to remind the applicant of our agreement in 2020 to reline the sewer and for which he had already received part payments. I then pointed out that had he undertaken the work to reline his sewer line as he agreed, the sewer would have been fixed and the problem would not have re-occurred. Based on this, I expressed the opinion that it was not reasonable to expect for me to pay for any plumbing works that would have been wholly avoided had he undertaken the work he committed to. I then asked the applicant to please proceed to obtain quotes and reline his pipes as previously agreed and that I would cover 50% of that cost plus pay the remaining $250.00. Unfortunately, this did not then happen."

37. For the same reasons, Mr Day refused Mr Gibbs’ requests for reimbursement of pipe clearance costs in December 2024 and May 2025.

38. With respect to plumbing reports submitted by Mr Gibbs, Mr Day said,

“The applicant has provided a copy of two letters from a Brad Scott from O’Brien Plumbing who attended his property on 2 July 2020 to clear the sewer, as well as a Patrick Noone, who appears to be a director of a company that relined the applicant’s sewer pipes in February 2025 (and who I assume is also a plumber). In Mr Scott’s letter he outlined that in his opinion the cause of the sewer blockage was the trees located in my backyard. in Mr Noone’s letter he expressed the view that the persistent blockages over a number of years were caused specifically by the weeping Lilly Pilly” in my backyard.

39. In response, Mr Day submitted that Mr Scott’s opinion was apparently provided under the misapprehension that both trees were located on Mr Day’s property, rather than one being on Council owned land. Mr Day claimed Mr Noone’s opinion similarly appeared to be oblivious to the prior existence of the ‘Council tree’ near the Weeping Lilly Pilly that could also be reasonably expected to cause the sewer blockage under discussion.

40. Mr Day added that neither Mr Scott nor Mr Noone appeared to hold an arborist qualification that may have allowed them to identify the tree species from the roots in the sewer. Given this, Mr Day assumed they based their opinions solely on the proximity of the trees to the damaged sewer. Mr Day noted that “where two trees on different properties could be involved, the Court has found that something more than just a theoretical possibility of a tree being involved is required for an order to be made under the Act (see Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29)”. Therefore, Mr Day did not accept that Mr Scott and Mr Noone’s opinions helped prove which tree caused the pipe blockages.

41. Regarding Mr Gibbs’ evidence of an SMS conversation where a person identified as Andrew confirmed the roots were from the Weeping Lilly Pilly based on photos of the tree and of roots under pavers, Mr Day claimed this opinion is not relevant to roots in the sewer. Secondly, Andrew’s qualifications to provide a professional opinion on root identification were not provided. Consequently, Mr Day was not convinced the applicant had provided sufficient reliable evidence to prove the Weeping Lilly Pilly was responsible for the blockages.

42. As to Mr Gibbs’ claim for reimbursement of the $4000.00 ($4019.00) pipe relining cost, Mr Day said the applicant freely and willingly entered into an arrangement in July 2020 that involved Mr Gibbs agreeing to pay 50% of the cost of relining his sewer. “If the applicant was not happy with my offer, he should have rejected it at that time and sought a ruling in the LEC. However, he did not do that, and therefore he should be bound by the agreement he freely entered into.” Mr Day said Mr Gibbs’ claim for reimbursement of $4000.00 pipe relining cost should therefore be dismissed.

43. Mr Day claimed that the Court acknowledges that terracotta pipes have a “limited effective life and that the joints can degrade over time resulting in leaks which then encourage tree roots to opportunistically grow into the pipes following the moisture and nutrients”. He noted Colling v Wilson [2009] NSWLEC 1061 as an example of precedents where terracotta pipes are discussed.

44. Mr Day said Mr Gibbs’ invoice of 11 December 2024 from Pacific Plumbing which noted “roots entering the clay pipe on nearly every joint along the line”, “ … indicates the joints in the applicant’s terracotta sewer line had failed” and this contributed to the damage.

45. Mr Day said the current damage to the boundary fence and retaining wall was minor and easily fixed. He claimed to have previously remediated fence and retaining wall damage, at his expense. Similarly, Mr Day allegedly repaired undulations in Mr Gibbs’ paving at his expense and claimed to be ready to repeat the works. However, Mr Gibbs had deferred the paving repair until after the onsite hearing. Mr Day withdrew his root barrier offer once he came to appreciate the negative impact of attendant root damage and removal on tree health and the risk of destabilisation.

46. Although Mr Day had previously pruned branches overhanging the applicant’s land on one occasion, on the advice of Ms Blues, whom he again consulted in February 2025, he was now disinclined to prune the tree as Mr Gibbs desired.

47. Mr Day detailed the contributions of the tree and bamboo to privacy, especially from oversight from the applicant’s first floor deck, to landscaping, garden design and amenity, the local ecosystem and biodiversity, and protection from sun and wind.

Jurisdictional requirements – Part 2

48. 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.

49. Section 7 of the Trees Act is satisfied as both parties own their respective properties that are situated on adjoining land. Although the parties’ properties are separated by a narrow strip of Council land, in cases under the Trees Act with similar circumstances, such as separation by a road or public walkway, the parties’ properties have been found to be ‘on adjoining land’.

50. Under s 8(1) of the Trees Act, an applicant for an order under this Part must give at least 21 days’ notice of the lodging of the application and the terms of any order sought to:

(a) the owner of the land on which the tree is situated, and

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

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

51. Section 8(1) of the Trees Act is satisfied as Mr Gibbs provided evidence of service of the application and the orders sought on the respondent (s 8(1)(a)), and Council (s 8(1)(b)), and the date determined for the final hearing provided the required 21 days’ notice.

52. Section 9 of the Trees Act provides jurisdiction for the Court to make a wide range of orders:

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

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

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

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

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

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

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

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

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

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

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

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

53. Section 10 of the Trees Act details matters of which the Court must be satisfied before making an order:

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

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

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

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

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

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

54. Section 12 details matters to be considered by the Court before determining an application made under Pt 2 of the Trees Act:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Findings

Section 10(1) - reasonable effort to reach agreement

55. The application included evidence of ongoing notification of sewer damage allegedly due to the tree since 2018, and claims for compensation. The applicant repeatedly notified Mr Day about sunlight obstruction resulting from the tree’s overhanging canopy and the impact of excessive stick, fruit, and leaf drop. The parties corresponded. Twice Mr Gibbs attempted to organise mediation through a Community Justice Centre without success. Although there is no requirement for Mr Day to agree to mediation, there was little more Mr Gibbs could do.

56. Consequently, I am satisfied the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, thus s 10(1)(a) of the Trees Act is engaged. Section 10(1)(b) is also engaged by the prior satisfaction of s 8(1) of the Trees Act.

Section 10(2) – damage or risk of injury caused by the tree

57. Mr Day acknowledged that the tree’s roots caused past damage to the common boundary fence, retaining wall, and paving. Current paving damage due to the tree’s roots was not severe but it nonetheless impacted the applicant’s amenity and use of his land. Consequently, s 10(2)(a) of the Trees Act is engaged.

58. The jurisdiction of the Trees Act includes damage likely to be caused by a tree in the near future. In Yang v Scerri [2007] NSWLEC 592 at [14], the near future is defined, as a rule of thumb, to be a period of one year. Based on the proximity of the tree to the boundary fence and the paving and the apparent vigour of the tree, I am satisfied that further damage to the boundary fence and or paving is likely in the next 12 months. Section 10(2)(a) of the Trees Act is again engaged. In concurrence with Ms Blues, I am not satisfied the tree represents a genuine risk of injury.

59. Though Mr Gibbs contended that Mr Day’s bamboo was causing damage to his dwelling, insufficient evidence was provided to substantiate this claim.

60. As s 10 of the Trees Act is satisfied by damage to the fence, wall, and paving, s 9 enables the Court to make any such orders it thinks fit to remedy, restrain or prevent damage to such property, or to prevent injury to any person. In order to determine, what, if any, orders should be made, the Court must consider the matters at s 12 of the Trees Act.

Discretionary matters – s 12

61. Notwithstanding the existence and impact of the Council land, from a practical perspective, the tree is located about 1-2m from the common side boundary (s 12(a)).

62. Section 12(b) considers whether interference with the tree would, in the absence of s 6(3) of the Trees Act, require any consent or other authorisation under the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act) or the Heritage Act 1977 (NSW) and, if so, whether any such consent or authorisation has been obtained. Although Mr Gibbs indicated at questions 18 and 20 of Form G that neither the EP&A Act nor a local council tree preservation order applied to the tree, this was incorrect.

63. Under the Inner West Development Control Plan 2023 (DCP), a Council permit is required for removal of the tree or for pruning more than 10% of the tree’s foliage. The DCP is enacted under the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) and reflects its requirements. The jurisdiction of the SEPP BC arises from the EP&A Act. Therefore, the tree is subject to the jurisdiction of the EP&A Act.

64. Section 12(b2) of the Trees Act considers the impact any pruning would have on the tree. I agree with Ms Blues’ advice that pruning of the entire canopy section overhanging the applicant’s property would be excessive. Given that leaves produce carbohydrates that drive all tree functions, the extent of canopy loss and branch wounding integral to such pruning would likely stress the tree and render it vulnerable to secondary impacts such as borers. Nonetheless, the tree appeared vigorous and belongs to a fairly hardy species. Thus, there may be scope to negotiate a lower dose of selective pruning to benefit Mr Gibbs with negligible impact on the tree’s health and aesthetic merits.

65. Under the Trees Act, there is no remedy for encroachment of branches beyond boundaries when such branches are not causing damage or injury, nor likely to cause damage or injury to persons in the foreseeable future. The ability of branches (and roots) to extend beyond boundaries, relatively unimpeded, is an implicit requirement for the healthy continuity of trees in urban areas, which benefits the wider community.

66. While the tree’s environmental contributions were not acknowledged at questions 25-30 of application Form H, the tree contributed to privacy, landscaping, garden design, the amenity of the land on which it is situated, and protection from the sun and wind for both parties (s 12 (b3)).

67. In Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (Robson), Chief Justice Preston provided commentary on environmental considerations under s 12 of the Trees Act at [203]:

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

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

68. Though not indigenous to the Sydney bioregion, the tree is native and likely to be an important source of food and habitat for fauna. Therefore, the tree contributed to the local ecosystem and biodiversity (s 12(d)).

69. Regardless that it was located in the respondent’s back yard, the tree was relatively large and typical land parcels in the vicinity were fairly small. Thus, the tree provided intrinsic public amenity as its dense canopy was visible to many nearby residents and pedestrians (s 12 (f)).

70. Under s 12(h), if the applicant alleges that the tree concerned has caused, is causing, or is likely in the near future to cause damage to the applicant’s property, the Court is required to consider:

(a) anything, other than the tree, that has contributed, or is contributing” to any such damage or likelihood of damage, including any act or omission by the applicant and the impact of any trees owned by the applicant, and (b) any steps taken by the applicants or the owner of the land on which the tree is situated to prevent such damage.

71. Mr Gibbs’ omission significantly contributed to ongoing damage to his sewer line. Mr Day provided copies of emails from 13 and 14 July 2020 (the emails) that detailed an agreement reached between the parties, whereby Mr Day would pay half the cost of proposed sewer pipe relining and reimburse Mr Gibbs $495.00 for the 2020 root clearance cost. Mr Day paid Mr Gibbs a $250.00 initial payment.

72. According to the emails, Mr Gibbs agreed to Mr Day’s request to procure quotes and have the pipe relined in a timely fashion. However, Mr Gibbs did not do so. Instead, he postponed the pipe relining for more than four years. Considering the pipe relining had a 50-year warrantee, it is reasonable to presume that the pipe relining would have prevented the subsequent root incursion that occurred in 2024 and 2025. In the unlikely event that a root incursion did occur after relining, the 50-year warrantee would presumably cover pipe repair or replacement.

73. Consequently, Mr Gibbs claim for reimbursement of $1900.00 for pipe clearance costs incurred in 2024 and 2025 is unreasonable and shall not be ordered. Similarly, Mr Day is not liable to pay for pending repairs to Mr Gibbs’ back decking that was damaged by plumbers undertaking pipe clearing in May 2024. Considering s 12(h) of the Trees Act, Mr Gibbs must take responsibility for the timber decking damage as it was a direct consequence of Mr Gibbs’ 2020 omission to reline his sewer pipe in a timely manner, in accordance with his agreement with Mr Day.

74. The impact of wear and tear on structures over time is also considered at s 12(h). Terracotta pipes were superseded by PVC pipes for domestic sewer and stormwater about 50 years ago. Given Rozelle is a long-established suburb, the applicant’s sewer pipes were likely to be very old. As noted by Mr Day, junctions of terracotta pipes deteriorate over time and leak water and nutrients, which provides ideal conditions for root growth. An invoice from Pacific Plumbing from 11 December 2024, said “[r]oots were entering the clay pipe on nearly every joint along the line”. A March 2009 invoice from Piranha Plumbing, more than 15 years prior, noted “evidence of breakages in pipe found”.

75. Conversely, junctions of suitably installed PVC pipes ordinarily do not leak or provide conditions conducive for root incursion. Therefore, where the advanced age and poor condition of terracotta pipes contribute to their damage, it is customary for the cost of repair or replacement to be apportioned between the parties.

76. Considering “any steps taken by the applicant or the owner of the land on which the tree is situated to prevent such damage” at s 12(h)(ii), Mr Day did not prevent damage. However, Mr Gibbs conceded that Mr Day had paid the full cost of past fence, wall, and paving damage repairs and that he had prevented Mr Day undertaking further planned paving repairs until after the hearing.

77. Section 12(j) deals with “such other matters as the Court considers relevant in the circumstances of the case”. As submitted by Mr Day, debris falling from the tree is set aside upon consideration of the Tree Dispute Principle established in Barker v Kyriakides [2007] NSWLEC 292 (Barker*)*, at [20]:

“[20] It is now appropriate to state these in a more specific form as a principle which may be applied when considering urban trees and ordinary maintenance issues arising from them. We state the principle in the following terms:

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.”

78. This Tree Dispute Principle established in Barker has been consistently applied by the Court and it applied here with respect to all tree debris described by Mr Gibbs and observed in photographs in application Form C and onsite. Photographs of dead sticks that fell from the Council tree are no longer relevant, as the Council tree was removed in 2023.

79. Similarly, Mr Gibbs’ claims regarding bird droppings on a back yard table and cockroaches attracted by the trees are dismissed with consideration of Robson, at [189], where his Honour said:

“Finally, the specification of the tree as being a cause of damage to property or injury to any person excludes damage or injury directly caused by animals, such as mammals, birds, reptiles or insects, which may be attracted to a tree or use it for habitat. Thus, although a tree when it flowers might attract bees seeking nectar in the flowers, and the presence of the bees might increase the risk of persons in the vicinity being stung by bees, it is not the tree itself that is likely to cause such injury of bee sting to any person, but rather it is the bees: see Immarrata v Mourikis [2007] NSWLEC 601 (12 September 2007) (Bly C, Fakes AC). Similarly, the fact that an animal which has caused, is causing or is likely to cause in the near future damage to property on adjoining land, uses a tree as habitat, such as for feeding, roosting or nesting, does not result in the tree itself having caused, causing or being likely to cause in the near future damage to the applicant’s property: Dooley v Newell [2007] NSWLEC 715 (23 October 2007) (Moore C, Thyer AC) at [22]-[23].”

80. A final consideration at s 12(j) of the Trees Act is that s 14(1)(d) of the L**imitation A**ct 1969 (NSW) has the effect of imposing a six-year limit on compensation claims under the Trees Act (except for building foundations). Therefore, even if Mr Day had been found liable to compensate Mr Gibbs for past plumbing expenses, such compensation would not apply to expenses for plumbing works completed more than 6 years prior to the filing of the application, i.e. prior to 30 May 2019.

Conclusion

81. As contended by Mr Day, “the issue of legal costs is not able to be decided at the final hearing”, as Commissioners do not have powers to order legal costs, the cost of expert reports and similar claims. Claims for legal costs require lodgement of a Notice of Motion with the Court, which is heard by a Registrar or a Judge.

82. I was satisfied that roots of the tree were a cause of damage to the common boundary fence, retaining wall, and the applicant’s paving, such that s 10(2) is engaged. However, Mr Gibbs confirmed that Mr Day paid the full cost of past fence, wall, and paving repair and that Mr Gibbs postponed pending paving repairs. Considering this history, there is reason to expect that Mr Day will maintain responsibility for this damage repair and satisfy Mr Gibbs’ proposed Order 4.

83. Given the repeated root incursion into the applicant’s sewer pipes, in the absence of pipe relining, further blockages were foreseeable. Despite a written agreement with Mr Day in July 2020 for Mr Gibbs to have his damaged pipes relined in a timely manner, Mr Gibbs postponed the relining for more than four years. Following Mr Gibbs’ appointment of a lawyer in January 2025, the parties reached an agreement with the same terms as the 2020 agreement. The pipe was relined and Mr Day paid Mr Gibbs as agreed.

84. As addressed above at [70]-[73], the continuation of pipe blockages beyond 2020 was caused by Mr Gibbs’ omission to have the pipe relined. Had Mr Gibbs acted with due haste, damage caused by predictable additional root incursion would almost certainly have been prevented. Therefore, as the 2024 and 2025 blockages were avoidable consequences of Mr Gibbs’ failure to undertake the agreed pipe relining, Mr Day refused Mr Gibbs’ payment requests.

85. Consequent to his omission to fulfill the 2020 agreement with Mr Day, Mr Gibbs must bear responsibility for pipe and back deck damage that occurred in 2024 and 2025. The applicant’s claim for reimbursement of $1900.00 for 2024-25 plumbing costs is thus refused. By implication, the claim for Mr Day to pay for repair of deck damage caused by plumbers in May 2024 is unreasonable.

86. Similarly, the applicant’s claim for Mr Day to reimburse $4000.00 ($4019.00), and thus pay the full cost of pipe relining, is refused. In July 2020, the parties made a voluntary written agreement for Mr Gibbs to pay 50% of the cost of Mr Gibbs’ sewer pipe relining and $495.00 reimbursement of Mr Gibbs’ 2020 plumbing cost. Mr Day paid a $250.00 deposit, but Mr Gibbs did not complete the agreement. The parties made an agreement with the same terms in January 2025, and Mr Day fulfilled the agreed terms. There is no reasonable basis for the terms of the agreement to now be altered whereby Mr Day pays the full cost of the pipe relining.

87. Even if the parties had no prior agreement for sharing the cost of pipe relining, Mr Gibbs had not established which tree was responsible for the pipe incursion prior to the death of the Council tree in or around 2022. Relatively economical DNA testing of roots is available for this purpose. Like Mr Day, I was not satisfied with the reliability of root identification by plumbers, Mr Scott in 2020 and Mr Noone in 2024, nor a person identified only as Andrew. Mr Gibbs provided no evidence that the plumbers or Andrew were qualified to undertake root identification and none of the submitted statements satisfied the Court’s requirements for expert reports. In any case, given the 2020 agreement between the parties and Mr Gibb’s subsequent omission to reline the pipes, such root identification statements from 2024 and 2025 are irrelevant.

88. In the absence of the written agreements between the parties, I concur with Mr Day that consideration of the advanced age and poor condition of the terracotta pipes, under s 12(h), would have resulted in the cost of pipe relining being apportioned between the parties.

89. I concur with Mr Day that now the pipes have been relined with the reassurance of a 50-year warrantee, further incursion is unlikely. Consequently, as sewer pipe damage has been arrested, and fence, retaining wall, and paving damage has been and is being repaired at the respondent’s expense, I agree with Mr Day that there is no reasonable justification for removal of the tree. I also agree that the insertion of a root barrier would be imprudent due to associated potential major root damage compromising health, and stability in the ground.

90. Though Mr Gibbs sought orders for removal of the bamboo or clearance of bamboo from the common boundary to arrest heavy leaf drop and obstruction of sunlight, no persuasive evidence of damage or likelihood of injury to persons from the bamboo, as required to engage s 10(2) of Pt 2 of the Trees Act, was submitted to the Court.

Jurisdictional requirements – Part 2A

91. Part 2A provides a limited jurisdiction and does not assume one should have a right to sunlight or views. Although the Trees Act does not define a ‘hedge’, the Court cannot make orders under Pt 2A unless nominated trees meet the requirements of a hedge for the purpose of the Trees Act, at s 14A(1), and are causing a severe obstruction of sunlight to a window of an applicant’s dwelling, or of views from the dwelling, at s 14E(2)(a). Even when these jurisdictional tests are satisfied, before making any orders, the Court is still required to balance the benefits of the trees against the interests of the applicant.

92. Section 14A(1) states:

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).

93. Section 14B states that an owner of land may apply to the Court for an order to remedy, restrain or prevent the severe obstruction of:

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

(b) any view from a dwelling situated on the land,

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

94. Section 14C(1) stipulates requirements for notice of application for order to be given to owners of affected land, as follows:

(1) An applicant for an order under this Part must give notice of the lodging of the application and the terms of any order sought at least 21 days before a hearing in relation to the application to—

(a) the owner of the land on which the trees are situated, and

(b) any relevant authority that would, in accordance with section 14G, be entitled to appear in proceedings in relation to the trees, and

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

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

96. Section 14E addresses matters of which the Court must be satisfied before making an order, as follows:

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

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

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

97. Section 14E(2) is particularly significant. Section 14E(2) states:

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

(a) the trees concerned—

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

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

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

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

99. Section 14F: Matters to be considered by the Court

(a) the location of the trees concerned in relation to the boundary of the land on which the trees are situated and the dwelling the subject of the application,

(b) whether the trees existed prior to the dwelling the subject of the application (or the window or part of the dwelling concerned where the dwelling has been altered or added to),

(c) whether the trees grew to a height of 2.5 metres or more during the period that the applicant has owned (or occupied) the relevant land,

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

(e) any other relevant development consent requirements or conditions relating to the applicant’s land or the land on which the trees are situated,

(f) whether the trees have any historical, cultural, social or scientific value,

(g) any contribution of the trees to the local ecosystem and biodiversity,

(h) any contribution of the trees to the natural landscape and scenic value of the land on which they are situated or the locality concerned,

(i) the intrinsic value of the trees to public amenity,

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

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

(l) any contribution of the trees to privacy, landscaping, garden design, heritage values or protection from the sun, wind, noise, smells or smoke or the amenity of the land on which they are situated,

(m) anything, other than the trees, that has contributed, or is contributing, to the obstruction,

(n) any steps taken by the applicant or the owner of the land on which the trees are situated to prevent or rectify the obstruction

(o) the amount, and number of hours per day, of any sunlight that is lost as a result of the obstruction throughout the year and the time of the year during which the sunlight is lost,

(p) whether the trees lose their leaves during certain times of the year and the portion of the year that the trees have less or no leaves,

(q) the nature and extent of any view affected by the obstruction and the nature and extent of any remaining view,

(r) the part of the dwelling the subject of the application from which a view is obstructed or to which sunlight is obstructed,

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

Findings

100. Mr Gibbs contended that the tree and the bamboo formed a hedge because two or more trees form a hedge and bamboo is a tree under the Trees Act. He alleged the hedge severely obstructed sunlight to a first-floor veranda and adjacent sunroom and the back yard.

101. Mr Day claimed the trees were not a hedge because the tree had been planted by a former resident around 2001, while he had planted the bamboo clump near his rear boundary in 2010. Mr Day noted the bamboo was absent in real estate photographs from 2009 that preceded his purchase and Mr Gibbs confirmed 2001 as a reasonable estimate of when the tree was planted.

102. In Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192 (Johnson*)* at [11]-[44], Preston CJ provides extensive commentary on satisfaction of s 14A(1)(a) of the Trees Act. Regardless that the tree and the bamboo may currently screen and perform purposes one may associate with a hedge, satisfaction of s 14A(1)(a) also requires an intention to form a hedge at the time of planting. As his Honour stated in Johnson; at [28]:

“In this case, the legislative draftsperson of s 14A(1)(a) has used the simple present tense for the phrase 'trees that are planted' with the adverb clause of purpose 'so as to form a hedge' to indicate a requirement that the trees be planted so as to form a hedge at the time of planting and that this state of affairs of being planted so as to form a hedge continue to the present."

103. Consequently, when only two trees are alleged to form a hedge, they must be planted at the same time to satisfy s 14A(1)(a). However, the tree was planted about 10 years before the bamboo by a prior owner and or occupier of the property. Therefore, the tree and the bamboo cannot form a hedge for the purpose of the Trees Act.

104. In some submissions, Mr Gibbs identified the bamboo alone as a hedge, but I am not satisfied this is the case. Mr Gibbs was correct in claiming that bamboo is considered a tree at reg 4 of the Trees (Disputes Between Neighbours) Regulation 2019, and many precedent cases feature bamboo hedges. Here, however, the bamboo appeared to be a single clump, which Mr Day claimed to have planted, and which was not disputed by Mr Gibbs.

105. Although the bamboo had grown taller and broader after 15 years and now had a multitude of stems, regardless of any argument that may arise on botanical grounds, the bamboo clump is nonetheless a single tree for the purpose of the Trees Act, not a hedge. A rationale to this effect was established in Welsh v Radford [2023] NSWLEC 1095 at [58]-[62] for a similar large single clump of Slender Weavers Bamboo.

106. Therefore, s 14A(1) is not satisfied, so the Court has no power to make orders under Pt 2A of the Trees Act. Consequently, there is no need to consider the severity of sunlight obstruction, at s 14E(2)(a), nor the environmental factors at s 14F and the balancing of the parties’ interests, at s 14E(2)(b) of the Trees Act.

Orders

107. The Court orders that:

108. The application is refused.

J Douglas

Acting Commissioner of the Court

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