Gray v Riviera

Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW), Pts 2, 2A, ss 7, 9, 10, 12, 14B

Cases Cited: Barker v Kyriakides [2007] NSWLEC 292
Freeman v Dillon [2012] NSWLEC 1057

Category: Principal judgment

Parties: Linda Gray (Applicant)
Fabian Riviera (Respondent)

Representation: Counsel:
A Dewell (Solicitor) (Applicant)
F Riviera (Self-represented) (Respondent)
Solicitors:
McPhee Kelshaw (Applicant)

File Number(s): 2025/154316

Publication restriction: Nil

Judgment

Background

1. COMMISSIONER**:** Linda Gray lives at her Springwood property in the Blue Mountains. Ms Gray has applied to the Court seeking orders relating to four trees on the adjoining property to her east belonging to Fabian Riviera.

2. The hearing took place onsite, allowing me to observe the trees and both properties. Mr Dewell represented Ms Gray; Mr Riviera was self-represented. I rely on my own arboricultural expertise and experience in making this decision, along with material filed by the parties. Ms Gray provided a report by Chantelle Brackenridge Hughes (the Hughes report), arborist at Treeism Arboricultural Services; Mr Riviera provided a report by Tom Hare (the Hare report), arborist at Truth About Trees.

3. In her application (Form C in Exhibit A), Ms Gray sought orders for branches of three trees to be pruned back to the boundary and for a fourth tree, which grows in a pot, to be moved away from the boundary. At question 14 of Form H (the Pt 2 claim details form, in Exhibit A), Ms Gray claimed compensation for the costs of a tree permit application to Blue Mountains City Council (Council) and of tree work already carried out and invoiced. During the hearing, she sought compensation also for sewer pipe repair works already carried out and invoiced.

Framework for this decision

4. Ms Gray 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). In her Pt 2 application, she claims that the trees have caused or are likely to cause damage to her property and are likely to cause injury. At the hearing, Mr Dewell clarified that Ms Gray no longer pressed her Pt 2A application, so that part of her application is not addressed within this judgment.

5. The four trees are on land adjoining Ms Gray’s land. The orders she seeks in her Pt 2 application are orders the Court can make at s 9 of the Trees Act. Relevant issues to be determined in these proceedings are:

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

7. Whether the Court can be satisfied that the trees have caused, are causing, or are likely in the near future to cause, damage to the applicant’s property, or are likely to cause injury to any person: s 10(2) of the Trees Act.

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

Reasonable effort to reach agreement

6. Ms Gray has spoken with Mr Riviera and his husband. She obtained consent from Council to prune trees, but pruning works were ultimately stopped by the respondent. Despite further correspondence between the parties, they were unable to agree on an outcome to Ms Gray’s satisfaction. I am satisfied that Ms Gray made a reasonable effort to reach agreement with Mr Riviera and that the timeframe set down by the Court has allowed for the required notice of the application.

Trees in the application

7. Ms Gray applied for orders relating to the following trees near the common boundary (from nearest the front boundary, with heights taken from the Hare report):

8. T1 – a crape myrtle (Lagerstroemia indica) approximately 5 metres tall

9. T2 – a cactus in a pot, approximately 1.5 metres tall

10. T3 – a lilly pilly (Syzygium paniculatum) approximately 20 metres tall

11. T4 – a white mahogany (Eucalyptus acmenoides) approximately 23 metres tall.

Whether the trees have caused or are likely to cause damage

8. Ms Gray’s application seeks orders for the crape myrtle (T1) and the lilly pilly (T3) on the grounds that they have caused or are likely to cause damage to her property.

Crape myrtle (T1)

Evidence and submissions

9. According to both the Hughes report and the Hare report, the crape myrtle’s upper branches were in contact with Ms Gray’s roof guttering. Remedial pruning could clear the gutter line without detriment to the tree.

10. Ms Gray submitted that she wanted all branches of this tree pruned back to the fence line to avoid damage to her dwelling. Mr Riviera submitted that he would be happy to prune branches away from Ms Gray’s dwelling but that pruning back to the fence line was unnecessary and would damage the tree. If his development application for a new carport is approved, he will remove the tree as part of the approved works.

Findings

11. The crape myrtle’s upper branches were close to, but not touching, Ms Gray’s dwelling at the time of the hearing. They have not caused any damage, but are likely to cause minor damage such as scratching surfaces of the gutter or fascia in the near future. Pruning branches to provide one metre of clearance to the dwelling would prevent damage without adversely affecting the tree. Pruning to the property boundary would unnecessarily remove an excessive amount of the tree’s foliage. Pruning to provide clearance to the dwelling would not significantly diminish the crape myrtle’s environmental or amenity value. An order will be made to prune the tree.

Lilly pilly (T3)

Evidence and submissions

Crown

12. Both arborists described the lilly pilly as mature and healthy, with branches that spread across the boundary and above Ms Gray’s property. Neither arborist found that the tree’s branches are likely to cause damage in the near future. The Hughes report found that low overhanging branches could be pruned to improve amenity and the ‘ease of movement’ in Ms Gray’s yard without adversely impacting the tree.

13. Ms Gray submitted that the lilly pilly’s long low branch extending toward her dwelling obstructs light and increases the risk of fire damage to her property. It prevents her installing solar panels. It prevents her extending her veranda as she would like to do. She cannot place her barbeque beneath the tree or use her barbeque on hot days due to the risk of fire. Leaves, twigs and debris fall from higher branches onto her roof, which she had to renovate recently at a cost of $23,000.

14. After Ms Gray gained Council consent to prune the lilly pilly in 2022, she engaged an arborist to carry out the approved works. Works were interrupted by the respondent, who withdrew his consent for access to his property to complete the works.

15. In her application to the Court, Ms Gray seeks orders for the lilly pilly’s branches to be pruned back to the boundary.

16. Mr Riviera submitted that the Lilly Pilly provides myriad benefits, including shade and cooling, habitat and privacy screening, and that it is not highly flammable. He suggested that Ms Gray could place her barbeque away from the tree’s low branch if she was concerned about fire risk.

Roots

17. Ms Gray has engaged plumbers in the past to repair her sewer pipe, which she says was damaged by tree roots. She provided the following evidence:

18. a plumbing invoice from 7 December 2022 for repairs to pipes on her property

19. a plumbing invoice from 16 January 2023 for water blasting pipes and using a camera to inspect the pipes

20. a plumbing invoice from 20 January 2023 for repairing a broken section of sewer pipe identified during the inspection

21. photographs of her property taken during some of the sewer repair works.

22. The first invoice above included the statement: “broken pipe under footpath near front entry”. That is, the invoice included works in Ms Gray’s front garden, unrelated to the lilly pilly.

23. The second invoice above included the statement: “2 spots where roots got into pipe” but did not show their locations. Mr Dewell submitted that the third invoice above included a portion for works to replace a sewer shaft and a portion for repairing the broken pipe where roots were found.

24. In photographs taken during the sewer repair works, tree roots can be seen among soil but not in any sections of pipe.

25. The Hughes report found that the lilly pilly “… lends itself to being a likely candidate for the origin of said roots” due to its size, maturity and its location near the sewer pipe. The Hare report expressed an opinion that the tree’s roots are unlikely to damage the sewer pipe in future if PVC pipes have been installed correctly.

26. Mr Dewell opined that the costs of sewer repair works set out in the invoices should be apportioned, with the respondent paying for repairing damage that could be attributed to the lilly pilly’ roots.

Findings

Crown

23. Branches extending over one property from a tree on an adjoining property may be a source of nuisance for the first property owner, but the Trees Act does not provide a cure for unspecified nuisance. At s 10(2) of the Tree Act, the Court may only make an order in a Pt 2 application once satisfied that “the tree concerned 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 any person.” The lilly pilly is not causing damage to Ms Gray’s property simply by having branches extending across the boundary. She may exercise her common law right of abatement to prune those branches, subject to gaining Council consent and any other consent required to do so.

24. Ms Gray is particularly concerned about the lilly pilly’s long low branch extending toward her veranda. It has not caused any damage to her property. The Hughes report found that (par 1.2.6) “the author did not observe any physical property damage that could be attributed to the subject trees at the time of inspection.” The Hare report found (par 4.10): “there are no obvious defects which suggest that the tree is potentially hazardous.” Although both arborists agreed that the branch could be pruned or removed without negatively impacting the tree, they identified nothing that would activate the Court’s ability to make such an order at s 10(2) of the Trees Act. Having inspected the tree during the onsite hearing, I too find that its branches are unlikely to cause damage in the near future.

25. If the tree prevents Ms Gray installing solar panels on her roof, the Trees Act does not provide remedy for that. If she wishes to extend her veranda, her development application would necessarily seek Council’s consent to prune the lilly pilly where needed for clearance.

26. The extent to which debris from the lilly pilly may have contributed to the need for Ms Gray to renovate her roof is unclear. However, if it was a contributing factor, such damage might have been avoided by reasonable property maintenance, as per the principle in Barker v Kyriakides [2007] NSWLEC 292 (Barker) 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."

27. The Court has long held that damage caused by fire is not to be confused with damage caused by trees, so bushfire risk is unlikely to give the Court a reason to make orders under the trees Act: see Freeman v Dillon [2012] NSWLEC 1057 at [84]-[86].

Roots

28. The lilly pilly’s roots may or may not have damaged the sewer pipe, but the available evidence does not give the Court the level of satisfaction required at s 10(2) to enable orders to be made on this element of the application. Furthermore, were I satisfied that the tree’s roots damaged Ms Gray’s sewer pipe, at s 12 of the Trees Act I would consider the actions of the parties. Here, Mr Riviera was given no warning or notice that his tree’s roots might be damaging the pipe, so he had no opportunity to prevent any damage. He neither created the nuisance nor knowingly continued it. No compensation will be ordered.

29. As noted in the Hare report, if the sewer pipe has been properly repaired, the lilly pilly’s roots are unlikely to damage it in the near future. No orders will be made on this element of the application.

Whether the trees are likely to cause injury

Crape myrtle (T1)

Evidence and submissions

30. Ms Gray submitted that leaves from the crape myrtle fall on her path. She has slipped on them when the path was wet, and may do so again.

Findings

31. The risk of injury by slipping on wet leaves could be mitigated by clearing the path of leaves and other reasonable property maintenance, as per the principle in Barker. No orders will be made on this element of the application.

Cactus (T2)

Evidence and submissions

32. The cactus grows in a pot which is next to the dividing fence. Its top extends above the top of the fence. Ms Gray submitted that the cactus caused injury when one of its spines penetrated her finger and this is likely to happen again. Mr Riviera submitted that it would be a simple matter to move or rotate the pot so that the top of the cactus did not overhang the boundary.

Findings

33. To avoid further injury to Ms Gray, an order will be made for the cactus to be moved from the fence.

White mahogany (T4)

Evidence and submissions

34. The arborists discussed the white mahogany in their reports, but neither of them undertook a risk assessment of the tree. The Hare report noted that the tree has fair health and vigour and fair structure. Large dead branches were present in the tree’s crown, as to be expected for a tree of this age, but they might fall apart in smaller sections. The Hare report stated that large dead branches were not necessarily more hazardous than live branches. Dead branches might be removed as part of general tree maintenance, but this did not mean they were innately dangerous. Despite not including a formal risk assessment, the Hare report found that the tree would likely receive a low risk rating were such an assessment undertaken.

35. The Hughes report stated that a large live limb “...is requested for removal” along with some smaller upper branches and large deadwood. No particular risk of damage or injury was identified, but “some risk abatement is linked with this work request also.”

36. Mr Dewell submitted that dead branches were likely to cause injury to someone on Ms Gray’s property. He questioned the validity of some statements within the Hare report, particularly those on the likelihood of dead branches falling and causing injury. He submitted that the inclusion of deadwood removal in general tree maintenance demonstrated their likelihood to cause damage or injury.

37. Mr Riviera submitted that the area beneath the tree was used infrequently and is unlikely to be used during weather conditions that might lead to dead branches falling from the tree. He spoke of the tree’s contribution to the local ecosystem.

Findings

38. Branches will periodically fall from the mahogany, as to be expected of a large, mature eucalypt, but they must also be likely to cause injury if orders are to be made: s 10(2)(b) of the Trees Act. Considering the low frequency of branch-drop, along with the likely periods of occupancy within the area beneath the tree, I find the tree is unlikely to cause injury. For this reason, no orders can be made for T4 and consideration of s 12 matters in relation to this tree is unnecessary.

Conclusion

39. As a result of the foregoing, orders will be made only for the crape myrtle and the cactus.

Orders

40. The Court orders:

41. The application is granted only to the extent of the following orders.

42. Within 30 days of the date of these orders, the respondent is to prune, or engage a suitably qualified (minimum AQF level 3) arborist to prune, the crape myrtle to provide at least 800 mm of clearance between all parts of the tree and all parts of the applicant’s dwelling. These works must be done in accordance with Australian Standard 4373:2007 ‘Pruning of amenity trees’ and the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.

43. On at least 2 days notice from the respondent, the applicant is to allow access to her property for the works in (2) to be completed during reasonable hours of the day.

44. Within 2 days of the date of these orders the respondent is to move the cactus so that no part of it overhangs the common boundary shared with the applicant.

45. The exhibits are returned, other than exhibit A.

D Galwey

Acting Commissioner of the Court

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