Gilroy v Arblaster

Representation: Counsel:
J Gilroy (Self-represented) (Applicant)
L Arblaster (Self-represented) (Respondent)

File Number(s): 2025/206382

Publication restriction: Nil

Judgment

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

Background

1. COMMISSIONER**:** Jennifer Gilroy (the applicant) has applied to the Court pursuant to both s 7 (Pt 2) and s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (the Trees Act) for orders relating to trees on the neighbouring property belonging to Lynne Arblaster (the respondent). Numerous trees grow on Ms Arblaster’s property along the long common boundary shared by the parties. The Pt 2 application is made partly on the basis that trees may have caused damage, but principally to prevent damage in future and to avoid the cost of repairing such damage. The Pt 2A application is made on the basis that trees forming hedges near the rear of Ms Arblaster’s property obstruct sunlight and views.

2. The hearing took place onsite, allowing me to observe the trees and both properties and to hear submissions from the parties, who were self-represented. I rely on my own arboricultural expertise and experience in making this decision, along with material filed by Ms Gilroy. Ms Arblaster filed no material with the Court.

Framework for this decision

3. Relevant issues to be determined in these proceedings are:

4. Whether the applicant has made a reasonable effort to reach agreement with the respondent and given the required notice of the application: ss 10(1)(a) and 14E(1)(a) of the Trees Act.

5. Whether the Court can be satisfied that the trees have caused, or are likely to cause, damage to the applicant’s property: s 10(2)(a).

6. How consideration of the relevant matters at s 12 of the Trees Act should influence any orders to be made under Pt 2.

7. Whether trees are severely obstructing sunlight to, or a view from, Ms Gilroy’s dwelling, and whether her interests in remedying the obstruction outweigh reasons to avoid interfering with the trees: s 14E(2).

8. How consideration of the relevant matters at s 14F of the Trees Act should influence any orders to be made under Pt 2A.

Reasonable effort to reach agreement

4. Ms Arblaster submitted that Ms Gilroy has made little effort to reach any agreement. However, it seems clear that once Ms Gilroy understood Ms Arblaster’s position, and her refusal to remove trees, it was unlikely that they could reach an agreement. Ms Gilroy obtained a report from an arborist, Walter Chan of Arbor Express, to help her understand the issues. I am satisfied that Ms Gilroy made a reasonable effort to reach agreement with Ms Arblaster and that the timeframe set down by the Court has allowed for the required notice of the application.

The trees

5. Plants on Ms Arblaster’s property along the common boundary are the subject of this application. From the street frontage, they are:

T1 maple

T2 honey locust

T3–7 yucca

T8–9 honey locust

T10 yucca

T11 ginger

T12 palm

T13 lilly pilly

T14–16 camellia

T17–18 lilly pilly

T19 tree fern (removed)

T20 lilly pilly

T21 olive

T22 lilly pilly

T23 pittosporum

T24 bottlebrush

T25–26 oleander

T27–28 lilly pilly

T29 lemon-scented tea tree

T30 bottlebrush

T31 lemon-scented tea tree

T32 wattle

T33 canna lily

6. Two of these plants are not trees for the purposes of the Trees Act: T11 and T33.

Whether the trees have caused, or are likely to cause, property damage

7. Ms Gilroy’s application referenced a vine, which is not included in the list above, and which Ms Arblaster has now removed. The vine grew on the Colourbond dividing fence and between some of its panels and fence posts. Ms Gilroy pointed out several small gaps between fence panels and posts, saying these were caused by the vine. At one of those points, I noted that the position of a joining screw indicated that the gap had existed since the fence’s construction. At other points, the gaps are so small that they do not affect the fence’s function; if they are ‘damage’, the damage is so minor as to not require any remedy.

8. Ms Gilroy pointed out a crack in the front section of her driveway. She suggested this might have been caused by a honey locust that has recently been removed from Ms Arblaster’s property. Ms Arblaster submitted that a large honey locust was also present in Ms Gilroy’s front garden, and its roots were equally likely to have caused the damage. No investigations have been undertaken to locate or trace any roots beneath the driveway. Without any evidence of causation, the Court cannot make any orders for tree removal or compensation. If Ms Gilroy is right that a root from Ms Arblaster’s honey locust caused the damage, that tree has been removed anyway.

9. Ms Gilroy’s principal concern is that most of the trees are planted close to the boundary and they are likely to damage the dividing fence or, worse still, their roots will damage her driveway. The raised concrete driveway is constructed on piers. Ms Gilroy explained that this was an expensive project. She submitted that tree roots are likely to spread beneath the dividing fence and under her driveway, where they might cause damage, which she naturally wants to prevent. She submitted that roots have displaced some of her garden edging, and will continue to do so.

10. Ms Gilroy submitted that she relied on Mr Chan’s report to identify the issues raised in her application. Mr Chan’s report includes comments of only a very general nature, such as “some plants in this row of vegetation… has [sic] a high tendency in causing potential damage to the boundary fence or footing or driveway…” and, regarding the crack in the driveway: “The cracks are likely caused by the extensive roots growing from T1 or T2 as tree roots can grow at least within the dripline of the tree.” Mr Chan has not demonstrated, to the extent required at s 10(2)(a) of the Trees Act, that any particular tree has caused damage or is likely to do so in the near future.

11. Regarding future damage, the Court considers the ‘near future’ is represented by a period of 12 months, as per the principle established in Yang v Scerri [2007] NSWLEC 592 at [14]. Despite their close proximity to the dividing fence, Ms Arblaster’s trees and shrubs are relatively small. She has maintained them by pruning and she submitted that she will continue to do so. Most are unlikely to damage the dividing fence in the near future. The only exception is one of the yuccas (T4), the swollen base of which is already pushing against the bottom of the fence, which it is likely to bend in the near future. Although Ms Arblaster submitted that she will remove all of her yuccas, an order will be made for its removal.

12. Considering the engineered piers that support Ms Gilroy’s driveway, roots from Ms Arblaster’s trees are unlikely to damage the driveway in the near future.

13. Displacement of Ms Gilroy’s garden edging may have been caused by vegetation on her own property; I cannot be satisfied that Ms Arblaster’s trees are the cause. Regardless, the displacement is so minor as to not require any remedy.

14. Given my findings above, and the limited nature of the orders, this judgment does not require any explanation of the matters at s 12 of the Trees Act, although I have considered those matters before making the orders.

Whether trees are severely obstructing sunlight or views

15. Some of the lilly pillies near the back of Ms Arblaster’s property are planted in such a way as to form a hedge. They are more than 2.5 metres tall, so Pt 2A of the Trees Act applies to those trees.

16. Before making orders, the Court must be satisfied that the trees are severely obstructing sunlight to Ms Gilroy’s windows, or a view from her dwelling. At their current height, the trees do not severely obstruct sunlight to her windows or a view from her dwelling. With the maintenance that Ms Arblaster carries out, the trees are unlikely to reach the potential heights described by Mr Chan, and are unlikely to cause a severe obstruction in future. Ms Gilroy submitted that the trees obstruct sunlight to her clothesline, but Pt 2A of the Trees Act does not apply to sunlight obstruction to clotheslines.

17. Therefore, no orders can be made under Pt 2A of the Trees Act and there is no need to consider matters at s 14F.

Orders

18. The Court orders:

19. The application is granted to the extent of the following orders.

20. Within 30 days of the date of these orders the respondent is to remove tree T4 (yucca).

21. The exhibits are retained.

D Galwey

Acting Commissioner of the Court

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