Johnson v Kaushik

The onsite hearing

1. Ms Johnson attended the hearing onsite. Mr Lees made a part appearance by telephone to clarify plumbing works but was otherwise represented by Ms Johnson. There was no appearance by the respondents, nor their agent. The respondents had made no appearance at a procedural hearing on 20 February 2024, where orders were made for substituted service of the application documents on the agent, nor at a second directions hearing on 5 March 2024.
2. After allowing about ten minutes beyond the scheduled start time, I commenced the hearing with an inspection of the applicants' land, and of the tree from the applicants' land. The tree, which had been misidentified in the application as a Eucalyptus teriticornis, was about 13 metres (m) tall, with a roughly symmetrical canopy which spread about 12 m. The canopy, which contained a high level of small and mid-sized deadwood, extended about 6 m over the applicants' back yard and about 2-3 m over the rear of the applicants' dwelling. No damage was reported to date, but Ms Johnson anticipated damage from dropping deadwood and long low live branches extending over the dwelling roof.
3. The backyard was about 13 m wide and 16 m deep including a paved surface at the rear of the dwelling covered by an attached solid fixed roof that may be considered part of the dwelling. Except for rectangular raised garden beds about 2 m wide parallel to the boundaries, and a brick barbeque, all surfaces were covered in artificial turf.
4. Ms Johnson took the Court to areas of artificial turf uplift, which she attributed to the tree's roots and claimed were trip hazards that were likely to worsen.
5. Though not introduced in the application, Ms Johnson identified front yard locations where roots had blocked stormwater pipes and the route, and history of sewer pipes in the back yard.

Jurisdictional requirements

1. With respect to s 7 of the 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. The application meets these requirements.
2. The applicants provided evidence of satisfaction of s 8 of the Act, requiring notice of the application for orders to be given to owners of affected land, and to Council. The Court granted the applicant's Notice of Motion for substituted service of the application documents on the agent, and the applicants provided evidence of such service of the application documents.
3. Section 9(1) of the Act details the Court's broad jurisdiction to make 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."
4. Pursuant to s 10 of the Act, s 10(1)(a) requires the applicant to make a reasonable effort to reach agreement with the owner of the land on which the tree is situated. The applicants provided evidence of multiple written requests to the respondents' agent for rectification of the tree and attempts to organise mediation through a CJC. Neither the applicants nor the CJC received a response; there is no more the applicants could have reasonably done. Consequently, I am satisfied the applicants made a reasonable effort to reach agreement with the owners of the land on which the tree is situated, such that s 10(1)(a) of the Trees Act is engaged.
5. The next major test that is posed, by s 10(2) of the Act, is that the Court must be satisfied that the tree concerned: 1. has caused, is causing or is likely, in the near future, to cause damage to the applicant's property, or 2. is likely to cause injury to any person.

Damage to roof

1. Branches extended for about 2-3 m over the dwelling roof, with some sufficiently low to sweep the surface and gutters. Deadwood in the upper canopy above the roof was sufficiently large and high to cause roof damage upon falling. Given the absence of past pruning on the tree and no reported planned future maintenance, I am satisfied that branches of the tree are likely to cause damage in the near future. In Yang v Scerri [2007] NSWLEC 592, the near future is defined, as a rule of thumb, to be a period of one year.
2. Regardless that the damage may be minor, the Court's decision in Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285 indicates that even relatively minor damage engages the Court's jurisdiction. Therefore, as a consequence of probable near future damage, s 10(2)(a) of the Act is engaged. Whether the damage is minor or major is irrelevant in answering the jurisdictional tests in s 10(2), but it can be relevant in determining what orders, if any, should be made.

Damage to PVC pipes

1. Mr Lees had replaced a front terracotta stormwater pipe that was blocked by roots about 18 months ago and had similarly replaced the terracotta sewer pipe extending along the common boundary to the rear boundary sewer main, both with PVC pipe. Though Ms Johnson was apprehensive about roots blocking the pipes, and particularly the junction with the terracotta sewer main, there was no evidence to suggest this was likely. As properly installed PVC pipes are rarely entered by roots, in the absence of evidence of blockages or other plumbing issues, there is no reason to assume that PVC pipe blockage or other damage is likely.

Risk of injury to persons

1. The applicants claimed the tree presented a genuine risk of injury from overhanging deadwood falling and striking people and from the trip hazards caused by raised roots. They noted discouraging people from congregating under the tree's canopy and from walking near the trip hazards.
2. The tree appeared to be fairly healthy, and stable in the ground. There were no signs around the tree base, such as soil heaving and lifting, or cracks in the soil, that may alert an arborist to stability issues. The trunk looked sound, and attachments of live branches appeared strong and stable. Nonetheless, the high level of mid-sized deadwood in the canopy overhanging a considerable proportion of the yard would likely result in deadwood shedding sufficiently regularly to present a risk of injury. Though the risk is relatively low, the tree unreasonably impacted the applicants' use of their land, and I am satisfied that s 10(2)(b) is engaged.
3. Considering trip hazards in the artificial turf, I was unable to view roots as the turf was glued down and Ms Johnson was reticent to lift it. In Stevens v Russell [2016] NSWLEC 1233; at [40], Fakes C notes that "it is a common assumption that the mere presence or proximity of a tree is sufficient to conclude that the tree is the cause of the damage. It is not. It is necessary to find evidence to substantiate the assumption that the tree has caused the damage. In the case of alleged root damage, some excavation is usually required."
4. Though the applicants assumed the uplift was caused by the tree's roots, no such roots were visible. A causal link between the first examined area of artificial turf uplift and a root from the tree was a reasonable assumption due to the close proximity of the tree to the uplift and the absence of other likely sources. The various other uplift locations, however, were further from the tree and closer to the respondents' other Eucalyptus tree which was larger than the Blue Gum, and the Melaleuca tree. While I was satisfied that the uplift was caused by tree roots, the applicants' failure to expose the roots deprived the Court the opportunity to determine which tree was their source, which thus remained unknown.
5. Even if all turf uplift was sourced to roots of the tree, and the uplift was deemed a genuine risk of injury which engaged s 10(2)(b), in contemplating orders, the Court must consider a range of elements at s 12 of the Act.
6. If the applicants allege that the tree concerned is likely to cause injury to any person, s 12 (i) considers: 1. 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 2. any steps taken by the applicant or the owner of the land on which the tree is situated to prevent any such injury.
7. The applicants reported no attempts to mitigate the root uplift "to prevent any such injury", yet to do so merely required the applicants to cut or shave relatively small, minor roots. Given that Mr Lees had previously replaced stormwater and sewer pipes, such maintenance would likely have been relatively easy, and it would have been reasonable.
8. Therefore, even if the roots belonged to the tree, I am not satisfied the areas of raised artificial grass represent sufficient genuine risk of injury to engage the jurisdiction as they are minor, isolated, may easily be highlighted to alert people to their presence, and could be readily removed by the applicants through reasonable maintenance. This element of the applicants' claim is thus dismissed.
9. As the jurisdictional test in s 10(2) is satisfied by likely future damage, and risk to persons from falling deadwood, s 9 of the Act empowers the Court to make any order it sees fit to remedy, restrain or prevent damage to property or injury to persons. If orders are to be made, the Court must consider other relevant discretionary matters in s 12 of the Act.

Discretionary matters - s 12

1. The tree is located in the respondents' property within 1 m of the common side boundary (s 12(a)).
2. With respect to removal or pruning, the tree is protected under Council's tree management policies, the jurisdiction of which arises from the Environmental Planning and Assessment Act 1979. Council's website notes, "the State Environmental Planning Policy (Biodiversity and Conservation) 2021 sets out how we will review and assess requests for tree pruning or removal". "Consent will generally not be given to remove a tree where: a tree is shedding leaves, fruit or bark, as this is considered a natural process, and a tree is causing minor damage to property (eg. Driveways/ fences/ pathways/ retaining walls/ paving)" (s 12(b)).
3. No signs of past pruning were evident on the tree and it held a large quantity of deadwood. Pruning is required to remove larger deadwood, with a collar diameter in excess of 15 mm, subject to compliance with the Australian Pruning Standard, AS4373-2007: Pruning of amenity trees. Pruning of dead branches ordinarily would not require permission from Council. Any removal of leaf cover by pruning, or any other means, reduces a tree's capacity to optimise photosynthesis and thus health and vigour. Therefore, pruning of live foliage should be undertaken only where necessary to achieve a required purpose (s 12(b2)).
4. The tree contributes to privacy of the respondents' tenants, protection from the sun and wind, and to the amenity and scenic value of the respondents' land (subss 12(b3) and 12(e)).
5. Due to its flowering and fruiting characteristics, and because the tree is indigenous to nearby valleys, it would probably provide food and shelter for local fauna, and an important contribution to local biodiversity (s 12(d)).
6. Section 12(j) of the Act considers such other matters as the Court considers relevant in the circumstances of the case.

Dropping debris

1. The applicants' raised garden beds were densely covered in leaves and sticks from the tree and the Tree Dispute Claim Details (Form H) included a photograph of leaves and other debris covering the artificial turf.
2. This issue is addressed in Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152; at [171], where his Honour says: "However, annoyance or discomfort to the occupier of the adjoining land occasioned by nuisances of the third kind is not "damage to property on the land" within s 7 of the Trees (Disputes Between Neighbours) Act 2006. Hence, leaves, fruits, seeds, twigs, bark or flowers of trees blown onto a neighbour's land might cause annoyance or discomfort to a neighbour, but unless they also cause damage to property on the neighbour's land they will not be actionable under s 7."
3. Further, the Court has published a Tree Dispute Principle in Barker v Kryiakides [2007] NSWLEC 292 ('Barker'), which, at [20], states: "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, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering the removal of or intervention with an urban tree.

Conclusion

1. Debris dropping from the tree included deadwood, the extent and nature of which is likely to cause near future damage and present a risk of injury to persons, sufficient to engage s 10(2) of the Act and justify intervention with the tree. As likely minor roof damage and risk of injury may be mitigated by pruning, however, and considering the tree's environmental contributions, removal of the tree would be a disproportionate remedy that is not required.
2. Given the absence of past tree maintenance by the respondents and the extent of the tree's encroachment over the applicants' back yard, selective pruning of live branches is also appropriate. Upon completion of the initial ordered works, however, required maintenance to clear leaves, seeds, flowers and small sticks from the applicants' roof and back yard would be reasonable maintenance in keeping with the Tree Dispute Principle established in Barker.
3. Commissioners do not have powers to make orders for costs such as legal fees and cost of applications to the Court. Should the applicants have incurred costs in making the Notice of Motion for substituted service, however, they may apply for such costs, or for enforcement of orders should it be necessary, through a further Notice of Motion to the Court.

Orders

1. The Court orders that: 1. The respondents, at their expense, shall employ experienced Australian Qualification Framework (AQF) level 3 arborists, with all appropriate insurances (the arborists), to prune all deadwood larger than 15 mm at the branch collar from the area of the tree's canopy overhanging the applicants' land, and overhanging the respondents' land within 1 m of the common boundary. The arborists shall also selectively prune four live branches, as follows: 1. The two lowest branches arise at a junction about 2.2 m above ground level. When facing the tree from the applicants' land, the branch on the right-hand side which extends over the applicants' back yard shall be removed. 2. The branch on the left-hand side, the larger of the two, shall be retained, but one secondary branch about 45mm at the branch collar, growing towards the dwelling roof from the primary branch, shall be removed. 3. Two branches growing over the dwelling roof which emerge from the primary trunk at a height of about 5-5.3 m, and with collar sizes of about 110 and 65 mm respectively, shall be removed. 1. The works in Order 1 shall be completed within 60 days of the date of these orders. 2. In 2025 and in every subsequent year, during the month that the works in Order 1 were completed, the respondents, at their expense, shall employ arborists who meet the requirements of Order 1, to prune all deadwood larger than 15 mm at the branch collar from the area of the tree's canopy overhanging the applicants' land and overhanging the respondents' land within 1 m of the common boundary. 3. All pruning shall comply with AS4373:2007, Pruning of amenity trees, and the Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016 and shall be completed during reasonable daytime working hours. 4. The applicants shall provide all reasonable access to their property for undertaking the works upon receipt of at least 72 hours' notice from the respondents or the respondents' agent by email, advising the date and approximate start time. Copies of the arborists' qualifications and insurance Certificates of Currency shall be attached to each email.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 July 2024

1. Mr Lees had replaced a front terracotta stormwater pipe that was blocked by roots about 18 months ago and had similarly replaced the terracotta sewer pipe extending along the common boundary to the rear boundary sewer main, both with PVC pipe. Though Ms Johnson was apprehensive about roots blocking the pipes, and particularly the junction with the terracotta sewer main, there was no evidence to suggest this was likely. As properly installed PVC pipes are rarely entered by roots, in the absence of evidence of blockages or other plumbing issues, there is no reason to assume that PVC pipe blockage or other damage is likely.

1. The applicants claimed the tree presented a genuine risk of injury from overhanging deadwood falling and striking people and from the trip hazards caused by raised roots. They noted discouraging people from congregating under the tree's canopy and from walking near the trip hazards.
2. The tree appeared to be fairly healthy, and stable in the ground. There were no signs around the tree base, such as soil heaving and lifting, or cracks in the soil, that may alert an arborist to stability issues. The trunk looked sound, and attachments of live branches appeared strong and stable. Nonetheless, the high level of mid-sized deadwood in the canopy overhanging a considerable proportion of the yard would likely result in deadwood shedding sufficiently regularly to present a risk of injury. Though the risk is relatively low, the tree unreasonably impacted the applicants' use of their land, and I am satisfied that s 10(2)(b) is engaged.
3. Considering trip hazards in the artificial turf, I was unable to view roots as the turf was glued down and Ms Johnson was reticent to lift it. In Stevens v Russell [2016] NSWLEC 1233; at [40], Fakes C notes that "it is a common assumption that the mere presence or proximity of a tree is sufficient to conclude that the tree is the cause of the damage. It is not. It is necessary to find evidence to substantiate the assumption that the tree has caused the damage. In the case of alleged root damage, some excavation is usually required."
4. Though the applicants assumed the uplift was caused by the tree's roots, no such roots were visible. A causal link between the first examined area of artificial turf uplift and a root from the tree was a reasonable assumption due to the close proximity of the tree to the uplift and the absence of other likely sources. The various other uplift locations, however, were further from the tree and closer to the respondents' other Eucalyptus tree which was larger than the Blue Gum, and the Melaleuca tree. While I was satisfied that the uplift was caused by tree roots, the applicants' failure to expose the roots deprived the Court the opportunity to determine which tree was their source, which thus remained unknown.
5. Even if all turf uplift was sourced to roots of the tree, and the uplift was deemed a genuine risk of injury which engaged s 10(2)(b), in contemplating orders, the Court must consider a range of elements at s 12 of the Act.
6. If the applicants allege that the tree concerned is likely to cause injury to any person, s 12 (i) considers:

(a) 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

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

1. The applicants reported no attempts to mitigate the root uplift "to prevent any such injury", yet to do so merely required the applicants to cut or shave relatively small, minor roots. Given that Mr Lees had previously replaced stormwater and sewer pipes, such maintenance would likely have been relatively easy, and it would have been reasonable.
2. Therefore, even if the roots belonged to the tree, I am not satisfied the areas of raised artificial grass represent sufficient genuine risk of injury to engage the jurisdiction as they are minor, isolated, may easily be highlighted to alert people to their presence, and could be readily removed by the applicants through reasonable maintenance. This element of the applicants' claim is thus dismissed.
3. As the jurisdictional test in s 10(2) is satisfied by likely future damage, and risk to persons from falling deadwood, s 9 of the Act empowers the Court to make any order it sees fit to remedy, restrain or prevent damage to property or injury to persons. If orders are to be made, the Court must consider other relevant discretionary matters in s 12 of the Act.

1. The tree is located in the respondents' property within 1 m of the common side boundary (s 12(a)).
2. With respect to removal or pruning, the tree is protected under Council's tree management policies, the jurisdiction of which arises from the Environmental Planning and Assessment Act 1979. Council's website notes, "the State Environmental Planning Policy (Biodiversity and Conservation) 2021 sets out how we will review and assess requests for tree pruning or removal". "Consent will generally not be given to remove a tree where: a tree is shedding leaves, fruit or bark, as this is considered a natural process, and a tree is causing minor damage to property (eg. Driveways/ fences/ pathways/ retaining walls/ paving)" (s 12(b)).
3. No signs of past pruning were evident on the tree and it held a large quantity of deadwood. Pruning is required to remove larger deadwood, with a collar diameter in excess of 15 mm, subject to compliance with the Australian Pruning Standard, AS4373-2007: Pruning of amenity trees. Pruning of dead branches ordinarily would not require permission from Council. Any removal of leaf cover by pruning, or any other means, reduces a tree's capacity to optimise photosynthesis and thus health and vigour. Therefore, pruning of live foliage should be undertaken only where necessary to achieve a required purpose (s 12(b2)).
4. The tree contributes to privacy of the respondents' tenants, protection from the sun and wind, and to the amenity and scenic value of the respondents' land (subss 12(b3) and 12(e)).
5. Due to its flowering and fruiting characteristics, and because the tree is indigenous to nearby valleys, it would probably provide food and shelter for local fauna, and an important contribution to local biodiversity (s 12(d)).
6. Section 12(j) of the Act considers such other matters as the Court considers relevant in the circumstances of the case.

1. The applicants' raised garden beds were densely covered in leaves and sticks from the tree and the Tree Dispute Claim Details (Form H) included a photograph of leaves and other debris covering the artificial turf.
2. This issue is addressed in Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152; at [171], where his Honour says:

"However, annoyance or discomfort to the occupier of the adjoining land occasioned by nuisances of the third kind is not "damage to property on the land" within s 7 of the Trees (Disputes Between Neighbours) Act 2006. Hence, leaves, fruits, seeds, twigs, bark or flowers of trees blown onto a neighbour's land might cause annoyance or discomfort to a neighbour, but unless they also cause damage to property on the neighbour's land they will not be actionable under s 7."

1. Further, the Court has published a Tree Dispute Principle in Barker v Kryiakides [2007] NSWLEC 292 ('Barker'), which, at [20], states:

"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, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering the removal of or intervention with an urban tree.

1. Debris dropping from the tree included deadwood, the extent and nature of which is likely to cause near future damage and present a risk of injury to persons, sufficient to engage s 10(2) of the Act and justify intervention with the tree. As likely minor roof damage and risk of injury may be mitigated by pruning, however, and considering the tree's environmental contributions, removal of the tree would be a disproportionate remedy that is not required.
2. Given the absence of past tree maintenance by the respondents and the extent of the tree's encroachment over the applicants' back yard, selective pruning of live branches is also appropriate. Upon completion of the initial ordered works, however, required maintenance to clear leaves, seeds, flowers and small sticks from the applicants' roof and back yard would be reasonable maintenance in keeping with the Tree Dispute Principle established in Barker.
3. Commissioners do not have powers to make orders for costs such as legal fees and cost of applications to the Court. Should the applicants have incurred costs in making the Notice of Motion for substituted service, however, they may apply for such costs, or for enforcement of orders should it be necessary, through a further Notice of Motion to the Court.

(1) The respondents, at their expense, shall employ experienced Australian Qualification Framework (AQF) level 3 arborists, with all appropriate insurances (the arborists), to prune all deadwood larger than 15 mm at the branch collar from the area of the tree's canopy overhanging the applicants' land, and overhanging the respondents' land within 1 m of the common boundary. The arborists shall also selectively prune four live branches, as follows:

(a) The two lowest branches arise at a junction about 2.2 m above ground level. When facing the tree from the applicants' land, the branch on the right-hand side which extends over the applicants' back yard shall be removed.

(b) The branch on the left-hand side, the larger of the two, shall be retained, but one secondary branch about 45mm at the branch collar, growing towards the dwelling roof from the primary branch, shall be removed.

(c) Two branches growing over the dwelling roof which emerge from the primary trunk at a height of about 5-5.3 m, and with collar sizes of about 110 and 65 mm respectively, shall be removed.

(2) The works in Order 1 shall be completed within 60 days of the date of these orders.

(3) In 2025 and in every subsequent year, during the month that the works in Order 1 were completed, the respondents, at their expense, shall employ arborists who meet the requirements of Order 1, to prune all deadwood larger than 15 mm at the branch collar from the area of the tree's canopy overhanging the applicants' land and overhanging the respondents' land within 1 m of the common boundary.

(4) All pruning shall comply with AS4373:2007, Pruning of amenity trees, and the Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016 and shall be completed during reasonable daytime working hours.

(5) The applicants shall provide all reasonable access to their property for undertaking the works upon receipt of at least 72 hours' notice from the respondents or the respondents' agent by email, advising the date and approximate start time. Copies of the arborists' qualifications and insurance Certificates of Currency shall be attached to each email.