Kacarovski v Stewart

The onsite hearing

1. The hearing was conducted on 23 July 2024 where the Stewarts were represented by Mr Hanscomb of Counsel and Mr Kacarovski was self-represented. The trees were initially inspected from within the respondents' property followed by an inspection of damage on the applicant's land.
2. Following the respondents' tree removals and pruning, the site was changed considerably from the circumstances when Mr Kacarovski made his application with the LEC. The site diagram used by the applicant in his Tree Dispute Claim Details for property damage or injury (Exhibit C), was a survey from 1991 that displayed trees that were on the respondents' property 33 years ago. There were five trees displayed as subject to the application, but they were unidentified other than by undated unlabelled photographs and the trees were numbered randomly rather than systematically along the boundary. Mr Kacarovski also included and numbered palms that had been removed in 2012.
3. Tree 1, which was removed in the recent works, had grown close to the back of the properties. Photographs in Exhibit C show Tree 1 with a solid trunk leaning heavily against the fence and over the applicant's glasshouse, pergola, and garage. Mr Kacarovski claimed 95% of Tree 1's canopy was over his land.
4. Tree's 2-5 appeared to be a large Camellia sasanqua, a large Bottlebrush, a variegated Hibiscus, a Magnolia, and perhaps a Monstera deliciosa, which had used the fence for support and had grown up on to the applicant's roof. All these trees, including branches overhanging the applicant's land, had been heavily pruned and most of the Monstera deliciosa had been prised off the fence. Nonetheless, regardless of their reduced size, all these specimens satisfied the definition of trees under the Trees Act.
5. In inspecting the applicant's property, Mr Kacarovski showed the Court areas where pavers were displaced and uneven, close to the boundary. The applicant noted leaf debris on the garage and pergola roofs, and broken panes, leaf debris, and mould on the glass house. Mr Kacarovski took the Court to the side passage between his dwelling and the common boundary where he had crafted a concrete dish drain many years prior. He indicated drain damage near the boundary which he attributed to Alexander palms removed by the respondents in 2012 and noted that the adjacent recently pruned Murraya trees had previously grown over and on his roof and had damaged roof tiles.
6. Under the Pt 2 application, which shall be addressed initially, Mr Kacarovski proposed the following (summarised) orders: 1. Respondents shall remove Trees 1-6, grind stumps and poison roots. 2. Respondents shall remove approximately half of the fence from near Tree 4 to the rear corner of the property, remove all lattice affixed to the fence, and repair paving displacement caused by tree roots. 3. Respondents shall provide a survey of the fence line and the common boundary by a registered surveyor. 4. Respondents shall replace and restore the fence to reasonable condition on the boundary. 5. Respondents shall install an approved root barrier 1 m from the boundary along its entire length, and a condition shall be placed on the respondents' title deed preventing any planting of trees between the root barrier and the common boundary fence. No shrubs or hedges shall be planted east of the root barrier and no trees shall be planted within 3 m of the root barrier on its western side. 6. Any replacement fence ordered shall be maximum height of 1.5 m and be constructed of Colourbond panelling with 40x40 mm galvanised steel posts. 7. Any future trees planted on the respondents' land shall be limited to tree species, as certified by a professional arborist, that will not exceed a height of 5 m and a canopy spread of 6 m. 8. Respondents shall pay compensation for the cost of emergency repairs carried out on our roof and water damage to the dining room ceiling and walls. 9. Respondents shall pay compensation for the cost of broken glass on the glasshouse.
7. Within his Tree Dispute Claim Details for property damage or injury (Exhibit C), at question 14, the applicant claimed compensation for approximately $8000.00 for replacement of glasshouse panes, $3,630.00 for urgent roof tile replacement and patching and painting living room ceiling and walls, $1500.00 for roof tile inspection, and repairs and painting of west side eaves, and $720.00 for CCTV inspection of inground stormwater drainage pipe under the applicant's west side dish drain. Additionally, Mr Kacarovski claimed $55,300.00 "Compensation for intentional occupation of our property by inappropriate plantings of trees, palms and hedges against the fence structure", based on $50.00/ week x 1,106 weeks between 2002 and 2024.
8. The respondents contended that Mr Kacarovski had not established a causal link between the trees and paving or roof damage and noted the requirements for engineering reports in the Tree Dispute Principle in Fang v Lee & anor [2017] NSWLEC 1503 (Fang) had not been satisfied. The respondents submitted that claims for historical damage were restricted to a six year window in accordance with the Limitation Act 1969 and claimed Mr Kacarovski had failed to maintain his own property, as evidenced by roof gutters congested with plants and organic matter.
9. The respondents also claimed natural deterioration over a long time period as a major cause of damage and noted the trees contributed to privacy and provided a range of environmental services.

Jurisdictional requirements - Pt 2

1. 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.
2. Section 8(1) of the Trees Act requires that applicants 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, (b) any relevant authority that would, in accordance with s 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.
3. The respondents inferred the applicant did not satisfy s 8(1)(a) of the Trees Act because Mr Kacarovski served notice of the application and orders sought at Burwood Local Court on 23 April 2024, 6 days after making the application to the LEC.
4. The satisfaction of the requirement at s 8(1) of the Trees Act is addressed in Ball v Bahramali & Anor [2010] NSWLEC 1334 (Ball). Section 14C(1) was considered in Ball, where s 14C(1) is the same requirement in Pt 2A as s 8(1) in Pt 2 of the Trees Act. Ball, at [38], says; "With respect to Mr Gerathy's contentions concerning the notice given by the applicant and compliance with s 14C(1) the application was filed with the Court on 19 August. The date specified and stamped in the application by the Court regarding when the application had to be served on the respondents and other parties was 27 August. The matter was listed for a preliminary hearing on 21 September 2010. This information is recorded in the application; this was copied and made available to the applicant. Thus there was at least 21 days notice specified by the Court for the serving of documents and the preliminary hearing and therefore compliance with s 14C(1)."
5. In this case, the application was filed with the Court on 17 April 2024. The date specified and stamped in the application by the Court regarding when the application had to be served on the respondents and other parties was 7 May 2024. The matter was listed for a preliminary hearing on 28 May 2024. This information is recorded in the application; this was copied and made available to the applicant. Thus, there was at least 21 days' notice specified by the Court for the serving of documents and the preliminary hearing and therefore compliance with s 8(1)(a) of the Trees Act. Mr Kacarovski also provided evidence of service of the application to Council, which satisfied s 8(1)(b) of the Trees Act, and there was no other person the applicant has reason to believe will be affected by the order (at s 8(1)(c)).
6. Section 9 provides the Court with a wide range of powers to remedy, restrain, or prevent damage and/or injury to a person caused by a tree or trees on adjoining land.
7. Pursuant to s 10(1), the Court is obliged to consider the following matters: (1) The Court must not make an order under this Part unless it is satisfied: 1. that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, and 2. if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 8.
8. Mr Stewart submitted that the applicant failed to make reasonable efforts to reach agreement in accordance with s 10(1)(a) of the Trees Act because Mr Kacarovski's initial contact was upon serving notice of the application and orders sought at Burwood Local Court on 23 April 2024.
9. Preston CJ provided extensive commentary on s 10(1)(a) of the Trees Act in Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (Robson). At [194] - [195], his Honour says: "194 The Trees (Disputes Between Neighbours) Act 2006 does not specify any particular time at which the applicant must make a reasonable effort to reach agreement with the tree landowner, other than fixing the end point by requiring that the Court cannot make an order under the Act unless it is satisfied that the applicant has made a reasonable effort to reach agreement with the tree landowner. Hence, although it would be preferable for an applicant to make a reasonable effort to reach agreement with the tree landowner before making application to the Court, so as to avoid court action, there is no requirement to do so and a reasonable effort to reach agreement can be made after making the application at any time up until the Court determines the application. 195 The language in s 10(1)(a) of the Trees (Disputes Between Neighbours) Act 2006 that the applicant has made "a reasonable effort to reach agreement" is less demanding than the language used in provisions of other statutory enactments which require parties to make reasonable attempts to reach agreement in relation to matters claimed in the court originating process."
10. The requirement at s 10(1)(a) of Pt 2 of the Trees Act is the same as at s 14E(1)(a) of Pt 2A, which Commissioner Fakes discussed at [39]-[45] of Ball; 39 Mr Gerathy's concerns about the 3 days between the applicant's son visiting the respondents and then filing the application in essence go towards s 14E(1)(a) and the making of a reasonable effort. 40 I agree that the effort to come to an agreement has been less than ideal. However, s 14E(1)(a) states that (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 41 The making of orders presumes that the matter has been heard. Orders generally follow a judgment; even Consent Orders require a determination and a reason for agreement. The Act does not prescribe a time period for reaching an agreement or provide guidance on a reasonable effort. 42 The experience of the Court in these matters is that attempts by applicants to negotiate an agreement with their neighbour are often unsuccessful. This may be due to many factors including a flat refusal by a respondent to participate, ambit or unreasonable requests by an applicant, a history of previous disputes about other matters and cultural differences. 43 In a number of matters that have come before the Court, an applicant has made a single approach to a tree owner before the making of the application. There is a period of at least 21 days from the serving of the application until the preliminary/ directions hearing. The Court considers that this period is available for parties to negotiate an agreement. A number of disputes have settled before the directions hearing and the matter has been discontinued. Similarly, matters have been resolved and discontinued post directions hearing and prior to the date set for the final hearing. 44 The hearing also provides another opportunity for the parties to come to an agreement. In a number of matters, the parties have agreed on consent orders and the Court has concurred. 45 Therefore, while the initial approach was only some days prior to the filing of the application, there have been opportunities up until the end of the hearing for negotiations to occur. On the basis of this, I do not propose to dismiss the application on the basis on non-compliance with s 14E(1)(a)."
11. The Trees Act does not prescribe conduct or means of negotiation of the applicant to satisfy s 10(1)(a), nor a deadline for the applicant's reasonable effort, provided it is made before the Court determines the application (Robson; at [194]).
12. At question 32 of Exhibit C, Mr Kacarovski noted having advised Mr and Mrs Stewart, through their lawyers, of concerns about the fence being pushed onto his land by the respondents' trees and his opposition to the respondents' attempt to construct a replacement fence on the current fence line, instead of along the surveyed boundary. Mr Kacarovski reiterated past attempts to prune the trees to mitigate damage that had been prevented by the Stewart's, including calling Burwood Council Rangers and the inability to get a Council permit for pruning as the trees were not on his property.
13. Exhibit C contained copies of letters and emails from the respondents' solicitors in December 2011 and February 2012 in response to notice of an impending action under the Trees Act by Mr Kacarovski which the respondents' solicitors attempted to discourage. The respondents subsequently removed four Alexander palms in 2012 and contractors repaired and reinforced the boundary fence for the respondents around this time.
14. In his response of 20 February 2024, rejecting the respondents' request for a 50/50 split of the fencing cost, Mr Kacarovski clearly itemised how the respondents had allegedly damaged the fence, gave notice of a pending application to the LEC, and listed seven proposed orders. The applicant attended individual mediation with a Community Justice Centre (CJC), as required in the action under the DFA, notwithstanding that mediation between the parties was determined by the CJC to be unsuitable.
15. Regardless that the dispute is deep and protracted, based on both historical and recent evidence from the applicant, I am satisfied the applicant has made a reasonable effort to reach agreement with the owners of the land on which the trees are situated, such that s 10(1)(a) of the Trees Act is engaged.

Damage and risk of injury caused by the trees

1. The next major test that is posed, by s 10(2) of the Trees Act, is that the Court must be 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.

Glass house damage

1. The glass house was said to date from 1995, it was covered in dirt and algae and in Exhibit C, Mr Kacarovski claimed, "[f]alling leaves have over the years destroyed the glass roof and walls of the glass house and ceramic roof tiles (more than 100 years old)". Damage appeared to comprise isolated broken panes and did not appear to be extensive. The applicant contended that the glass had been broken by palm fronds and branches that fell from the respondents' trees. Mr Kacarovski rejected my observation that hail over the years may also have broken some panes.
2. Although there were no dates on the applicant's photographs in Exhibit C, photographs at pages 6-10 and 16-18 (inclusive) appeared to be relatively recent. In combination, the canopies of Tree's 1 and 2 grew far and wide over the applicant's glasshouse, and part of both his garage and pergola. Although hail would usually be a likely cause of glasshouse damage, protection provided by the trees' canopies would have mitigated such likelihood here.
3. Consequently, though the applicant provided no photographs or other evidence to prove Tree 1 caused the damage or the dates of damage incidents, the tree need only be a cause of damage to engage the legislation. Trees naturally shed dead branches. In the absence of a more reasonable explanation, it is likely that fallen branches from the trees broke some glass panes during the 27 years of the respondents' occupation. Although I considered the isolated broken panes to be minor damage, the Court's decision in Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285 (Granger) indicates that even relatively minor damage engages the Court's jurisdiction. Therefore, s 10(2)(a) of the Trees Act is satisfied.
4. If the jurisdictional test in s 10(2) is satisfied, s 9 of the Trees Act empowers the Court to make any order it sees fit to remedy, restrain, or prevent damage to property or injury to persons. 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.
5. In contemplating orders, the Court is required to consider relevant factors in s 12 of the Trees Act. Section 12 (h)(i) covers "anything, other than the tree, that has contributed, or is contributing, to any (such) damage or likelihood of damage" to the applicants' property, "including any act or omission by the applicant and the impact of any trees owned by the applicant".
6. The age and nature of the glasshouse must be considered as a certain amount of wear and tear is expected to arise with any structure over time. It is unsurprising that an otherwise unprotected glass house would incur glass breakage during a 28-year period and that its metal components would deteriorate. As structures generally become more brittle due to age and natural deterioration, their propensity for damage increases. Consequently, where compensation is ordered for such damage, it is usually discounted as a necessary consequence of the age and natural deterioration.
7. Another consideration under s 12 (h)(i) is Mr Kacarovski's failure to give notice to the tree owner when damage was noticed. If an applicant becomes aware of damage being caused to their property and do not inform the tree owner in a timely fashion of the damage, this failure can be taken into account by the Court when considering whether or not to make orders relating to the damage: for an example see Lazarus v Lee [2010] NSWLEC 1118; at [11]-[13]. The glasshouse appeared to be largely redundant and was covered in dirt and algae, including the residual broken panes. The glass damage thus appeared to be historic, and Mr Kacarovski provided no evidence of previously notifying the respondents about the glass damage.
8. As contended by the respondents', the Court has held that the Limitation Act 1969 (LA) applies to compensation claims under the Trees Act. Under s 14(1)(d) of the LA, there is a general six-year time limit, as from the date of filing an application under the Trees Act, for compensation claims for past damage to an applicant's property (see Moroney v John [2008] NSWLEC 32; at [32]-[33]). In certain circumstances, damage to building foundations may be exempt from the six-year time limit.
9. The glass damage appeared historic and was likely to have occurred in separate incidents. Mr Kacarovski noted glass breakage by Alexander palm fronds but otherwise provided no written or oral evidence as to when the damage occurred. As the Alexander palms near the glasshouse had been removed in 2012, Mr Kacarovski failed to address and refute the respondents' contention that the damage compensation claim be subject to the LA. As the onus is on the applicant to prove his case, no compensation for glasshouse damage shall be ordered.

Paving damage

1. In the distant past, Mr Kacarovski had paved his back yard with rectangular pavers and constructed a large, covered pergola which extended out from the back of the dwelling, about 400mm from the boundary. Mr Kacarovski indicated the damage in an area near the boundary in the pergola where pavers were displaced and uneven. He installed a raised edge near the boundary by standing a row of pavers on their sides and said the paving was laid on a sand base.
2. Mr Kacarovski claimed the respondents' trees were the cause of paving damage due to their close proximity to the paving. Close proximity indicated the trees as a possible cause, but proximity alone is insufficient proof of a causal link between the trees and the damage to engage the jurisdiction.
3. Mr Kacarovski did not lift pavers or expose roots to prove his case. A photograph in Exhibit C showed paver uplift and distortion in a confined area under a shelf in the pergola but provided no insight into the cause. Regrettably, the benefit of the photographs in Exhibit C was compromised by their lack of time stamps and Mr Kacarovski acknowledged that paver damage had occurred for ten years.
4. In Stevens v Russell [2016] NSWLEC 1233, at [40], Commissioner Fakes said: "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."
5. The Tree Dispute Principle in Fang also provides clear guidance as to the Court's evidence expectations when damage by roots is alleged. Therefore, in the absence of exposed roots or other supporting evidence proving a causal link between the respondents' trees and the paving damage, this claim is refused.
6. If paving damage by the trees had been proven, and s 10(2)(a) had been engaged, under s 12 (h)(i), the Court again considers the advanced age and nature of the paving. I noted that the main trafficked paved surface was gently undulating and pavers supporting some pergola posts appeared sunken. The applicant's failure to advise the tree owners when the damage was noticed is a consideration along with the absence of any record as to when the damage occurred. All these factors generally reduce respondent liability for damage repair costs, or compensation.
7. Further, the paving damage displayed on site and in photographs in Exhibit C was of little practical significance as it was isolated in areas near the boundary that were subject to little or no pedestrian traffic. Given that Mr Kacarovski installed the paving, the damage was isolated, and the pavers were on a sand base, it would seem relatively simple for the applicant to repair impacted pavers. In such a case, the Court takes into account the failure of an applicant to maintain their own property (see Zhang v Long [2007] NSWLEC 632 at [94]-[104]). As s 10(2)(a) was not satisfied, no compensation shall be ordered for paving damage.

Damage to concrete dish drain

1. Long ago, Mr Kacarovski crafted a concrete dish drain between his dwelling and the common boundary to direct stormwater towards the front of his land. Mr Kacarovski provided photographs of tall Alexander palms growing against the fence in the narrow passage between the dwellings and of damage to his drain close to the boundary. He claimed compensation for path damage allegedly caused by the roots of the palms. However, Mr Kacarovski accepted the respondents' claim that the Alexander palms were removed in or around 2012. As compensation claims for damage are restricted to 6 years by the LA, no compensation may be paid for concrete dish drain damage.

Roof tile, ceiling and wall damage

1. Notwithstanding that one tree appeared much larger than its two neighbours, photographs in Exhibit C showed three Murraya paniculata trees growing to about 6 m tall up against the applicant's side wall and over the dwelling's roof prior to recent pruning works. A photograph with the tall Alexander palms present, thus prior to 2012, showed the trees well over the dwelling roof with diagonal branches against the gutters. Mr Kacarovski claimed the trees had broken roof tiles, allowing entry of water which caused secondary damage to the adjacent living room wall and decorative plaster ceiling. These trees were the subject of Mr Kacarovski's claim of being prevented from abating the trees' impact on his dwelling by the respondents' refusal of permission for pruning, and their recourse to Council, both of which were not refuted by the Stewart's.
2. From memory, Mr Kacarovski claimed the ceiling and wall damage occurred in 2021 and in Exhibit C, he included photographs of the damage, an undated letter from Select Painting Group Pty/Ltd (Select Painting) describing the works, and an itemised invoice from Select Painting for $3,630.00, dated 9 March 2022, for which he claimed compensation from the respondents.
3. The letter from Reza Rezaee of Select Painting referred to "assistance in relation to some rainwater damage to the recently painted ceiling and wall above the living room window". Mr Rezaee noted, "While it was still raining, I accessed and inspected the tile roof above the area in question", found several broken tiles and replaced them with matching 100-year-old tiles. He said the works, described as "urgent repairs", comprised clearing debris, rebuilding the ceiling and wall with lime mortar, and repainting, all of which occurred over the following few days.
4. On face value, considering that the ceiling and wall damage was located in a relatively small area directly below the trees' canopies which had been growing against and over the applicant's roof for more than 15 years, I am satisfied that the trees were a cause of damage to the roof tiles, and secondary ceiling and wall damage, such that s 10(2)(a) of the Trees Act is engaged.
5. Considering s 12 (h)(i) in contemplating orders, both Mr Kacarovski and Mr Rezaee noted the ceramic roof tiles were about 100 years old. From a simple internet search, I found the functional life for such tiles averaged around 75 years. Therefore, the age and potentially fragile nature of the tiles must be considered, notwithstanding no tile damage was reported other than near the trees.
6. The failure to give the tree owner an adequate opportunity to respond to the damage is also relevant. If an applicant becomes aware of damage being caused to their property and repairs the damage without providing the tree owner any opportunity to assess the damage of be consulted about the method and cost of repairs, this failure can be taken into account by the Court when considering whether or not to make orders relating to the damage. Unlike Osborne v Hook [2008] NSWLEC 1231, however, where Moore SC and Thyer AC did "not entertain any claim for damages", the emergency circumstances and the nature of the works here make the lack of notice more reasonable. While one may contend that only the tile replacement constituted 'emergency circumstances', given the unstable nature of saturated lime mortar, promptly stabilising and refilling the mortar may have limited the extent of damage. Had the tile repairs been completed initially and the remaining works undertaken later after both parties procured quotations, the total cost may well have been higher as the works would have included two set up and pack up costs, rather than one. Nonetheless, the applicant's failure to notify shall be accounted for in apportioning compensation.
7. Further, consideration must be given to the respondents' trees causing a sustained restriction of the applicant's ability to access and inspect his roof, and conduct gutter clearing, and repairs. As many applications under Pt 2 of the Trees Act include claims for damage resulting from falling debris, the Court published a Tree Dispute Principle in Barker v Kryiakides [2007] NSWLEC 292 (Barker), which, at [20], states that: "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."
8. As a result, the required maintenance to clear leaves, seeds, flowers and small sticks from the dwelling roof and gutters to prevent secondary damage would ordinarily be considered reasonable, thus no orders would be made for such damage. Here, however, where access for inspection and maintenance was perpetually restricted by the respondents' trees, orders are appropriate. The respondents shall compensate the applicant $1,815.00, being 50% of the cost of repairs by Select Painting.

Boundary fence damage

1. As the aged boundary fence was dilapidated, I considered it 'not sufficient', and orders under the jurisdiction of the DFA for a replacement fence are appropriate. Under s 13A(3) of the DFA, the LEC has power to determine fencing applications where action has been commenced but not resolved under the Trees Act and a tree or trees subject to the application have damaged a boundary fence or are likely to cause fence damage in the near future. Under s 4 of the DFA, the Court may determine contextualised characteristics of a 'sufficient fence' and at s 8, the Court may apportion the cost of a replacement fence with consideration of negligent or deliberate action by a party that contributed to the fence's demise.
2. Mr Kacarovski's photographs in Exhibit C showed the respondents' palms, prior to their removal in 2012, growing close to the fence and forcing the fence towards the applicant's land. The applicant's more recent photographs showed many of the respondents' trees growing towards and well over the common boundary, with leaning trunks and branches prising the fence towards the applicant's land. A Monstera deliciosa that the respondents allowed to grow on the fence and over the applicant's roof would have been sufficiently heavy and moist to cause localised deterioration of the fence. Further, the respondents' photographs in Annexure I of Exhibit 1 show fence displacement and damage as a result of lattice sheeting attached along its length.
3. As a result of the damage to the fence caused by the respondents' trees for at least 15 years, which constituted negligent and deliberate action contributing to the fence's demise, the respondents shall pay 75% of the materials and installation cost of a replacement fence. Upon consideration of the nearby area, I saw timber, brick, and hedges used to separate properties but not Colorbond, which was preferred by Mr Kacarovski. As the sloping northern fence section would be conspicuous from the street, I thus accepted the respondents' preference for a 1.8 m tall, treated pine paling fence with steel posts based on the specifications in the quotation of Draper Fencing, dated 25 January 2024.

Other alleged damage

1. Mr Kacarovski said that additional roof tiles had been broken during the Murraya pruning in April 2024 and claimed $1500.00 for roof tile inspection, and repairs and painting of west side eaves. The Stewart's rejected this claim and contended that the arborists who undertook the work did so from the respondents' land. As Mr Kacarovski provided no evidence of additional tile damage regardless that the roof was now accessible, nor indicated any damage on the newly exposed eaves that may constitute damage due to the respondents' trees, this claim was refused.
2. Similarly, Mr Kacarovski provided no evidence to support a claim for $720.00 for future CCTV inspection of the applicant's inground stormwater drainage pipe under the applicant's west side dish drain, other than speculation that the respondents' trees' roots may be in the pipes. When pressed to substantiate his claim, Mr Kacarovski said he would "take this up separately".
3. Mr Kacarovski claimed $55,300.00 "Compensation for intentional occupation of our property by inappropriate plantings of trees, palms and hedges against the fence structure". While fence damage by the respondents' trees shall be accounted for by apportioning the cost of the replacement fence in the applicant's favour, there is no remedy available under the Trees Act where trees encroach beyond boundaries but don't cause damage. Mr Kacarovski was essentially seeking a payment of rent for encroachment by the trees, but such a remedy is not available, nor reasonable.

Risk of Injury

1. Mr Kacarovski claimed that Tree's 1-3 were likely to cause injury and noted the particular risk posed by falling palm fronds. He feared the trees would crush his glasshouse and garage and said danger from the trees restricted his family using the back yard.
2. Based on the photographs in Exhibit C, there have been periods in the past where the trees would likely have been deemed a risk of injury to a person. The first was prior to 2012 when the groups of mature Alexander palms were growing next to the boundary, given that their spent fronds have a heavy crown-shaft and fall relatively unpredictably. The second more recent period was due to Tree 1 growing far over the applicant's land at an angle of about 45%.
3. Notwithstanding these past periods of higher tree risk, Tree 1 was removed in the recent works, low and long branches were removed from neighbouring trees, and trees beside the applicant's dwelling, including the Murraya's, were pruned to a height of about 1.5 m.
4. No professional risk assessment was provided by the applicant and there is an absence of evidence to support a finding that risk of injury is likely. Consequently, I am satisfied that the trees present a low risk of injury to people, and this element of the application is refused.
5. Regardless that s 10(2)(b) was not engaged, only one of the three types of damage, or risk of injury need be satisfied to engage s 10(2) of the Trees Act. As s 10(2)(a) was engaged by damage to the glasshouse and the dwelling's tiles, ceiling and wall, and orders are contemplated, further s 12 elements require consideration.

Discretionary matters - s 12

1. The trees are located in the respondents' property with most growing within 1m of the common side boundary (s 12(a)).
2. With respect to removal or pruning, trees above 4m tall are protected under Council's DCP (s 12(b)).
3. The recent pruning was harsh, but the majority of the trees were healthy and of resilient species and were likely to regrow strongly (s 12(b2)).
4. The trees contribute to privacy, protection from the sun, to landscaping, and to the amenity and scenic value of the respondents' land (subss 12(b3) and 12(e)).
5. Considering many of the trees are indigenous, they could be expected to provide food and or shelter for local fauna, and thus would contribute to biodiversity (s 12(d)).
6. The trees are likely to benefit soil stability. They may exacerbate reactive clays, or they may alternatively buffer extremes of moisture, particularly during sustained periods of heavy rain. Regardless, it is a normal occurrence for roots to grow in urban soils and encroach beyond property boundaries. Exacerbation of soil reactivity alone is not damage under the Trees Act and it is not a basis for orders (s 12(g)).
7. Section 12(h)(i) considers such other matters as the Court considers relevant in the circumstances of the case. The applicant's photographs showed periods where the maintenance burden imposed on the applicant by the respondents' trees has been excessive and unreasonable. Having recently been pruned, however, tree debris will have been reduced to a reasonable maintenance burden in accordance with the Tree Dispute Principle in Barker.

Conclusion 1. The onus is on the applicant to prove a nexus between damage to his property and the tree or trees allegedly causing damage. A probable causal nexus was established between falling branches and broken glasshouse panes (order 9), and the Murraya trees and the roof tile, ceiling and wall damage (order 8). Orders shall be made for compensation for the repair of tile, ceiling and wall damage, but the quantum shall be discounted by 50% in consideration of the age and nature of the structures, the applicant's failure to notify the respondents when the damage occurred, and the applicant's failure to provide an opportunity for the respondents to procure quotations for the damage. No compensation is payable for glasshouse damage as I determined the damage to be historic. In accordance with s 14(1)(d) of the Limitation Act 1969, no compensation is payable for damage that occurred more than six years before the application date. 2. Insufficient evidence was provided to prove the trees as a cause of paving damage, there was no evidence of stormwater pipe blockages or root presence to justify CCTV inspection at the respondents' expense, nor for tile inspection and painting of eaves. While the roots of the respondents' tall palms may have caused damage to the edge of a concrete dish drain prior to 2012, again no compensation is payable for such historic damage due to the application of the Limitation Act 1969. 3. Finally, Mr Kacarovski's claim for $55,300.00 for 22 years occupation of his land by the trees shall not be ordered. There is no remedy under the Trees Act for annoyance, discomfort, or stress, nor to recover rent in compensation for tree encroachment. 4. Once Tree 1 was removed and extensive pruning undertaken on branches overhanging the applicant's land, the risk of injury to a person resulting from the trees was reduced to a low, acceptable level. Therefore, Mr Kacarovski's claim of risk of injury is refused. 5. With respect to the proposed orders, Tree 1 has been removed, as appropriate, but there is no reasonable basis for removal of Trees 2-6 (order 1), nor the installation of a root barrier 1m from the boundary for the length of the respondents' property (order 5). Such a barrier would cause extensive damage to the respondents' trees. The exacerbation of shrinkage of reactive clays by trees is normal in urban areas and is not a reasonable basis for orders for a root barrier. The installation cost and extensive root damage that would result from such a barrier is disproportionate to the relatively minor damage caused by the trees. 6. Similarly, there is no reasonable justification for orders to restrict the size or location of future trees on the respondents' land, as proposed in orders 5 and 7, nor for conditions to be placed on the respondents' land title. 7. Though Mr Kacarovski preferred a fence of similar height to the existing fence at about 1.5 m tall, 1.8 m is the usual height of a 'sufficient' urban fence and is required here to protect the respondents' privacy, particularly as orders for regular pruning will impact trees that the Stewart's otherwise relied on for privacy. There is also no reason why the Stewart's should be required to procure a new survey when the veracity of the applicant's existing 1991 survey is not in question (order 3), and both parties accepted that the ends of the existing fence were on the boundary. 8. Nonetheless, the replacement fence shall be positioned on the boundary, in satisfaction of Mr Kacarovski's proposed order 4, no structures such as lattice may be attached to the fence (order 2), and galvanised steel posts at least 40x40 mm shall be ordered (order 6). As a result of 'deliberate action' by the respondents that contributed to the fence's demise, including inaction in preventing sustained fence damage by the trees, the respondents shall pay 75% of the cost of the replacement fence. Deterioration due to age related wear and tear also heavily contributed to the fence's dilapidation.

The application under Pt 2A

1. The application under Pt 2A involved two hedges along the common boundary, one at the front of the respondents' property and one facing the side of the applicant's single storey dwelling that allegedly impacted three windows. In both cases, Mr Kacarovski contended the hedges severely obstructed views from his dwelling, and severely obstructed sunlight to dwelling windows. The Stewart's dwelling is located west of Mr Kacarovski's and is set back to accommodate a single storey garage in front. It is two-storey, and the outer walls of the parties' dwellings are little more than 1.8 m apart. Mr Kacarovski numbered trees impacting the side windows, 1-7, and those at the front, 8-12. None of these trees were in the Part 2 application.

Jurisdictional requirements - Pt 2A

1. In Pt 2A matters, the Court must consider a number of jurisdictional tests before any orders can be contemplated. The Court must be satisfied that the trees are causing a severe obstruction of sunlight to a window of the applicant's dwelling, or a severe obstruction of views from the applicant's dwelling. If so satisfied, the Court must consider a range of matters such as privacy and other benefits that the trees provide. The process is set out in Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at [17]-[22].

Do the trees form a hedge?

1. The first test is s 14A(1), that is, are the trees a hedge for the purpose of the Trees Act?
2. 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).
3. The trees at the front (8-12) are primarily Syzygium sp. (Lilly Pilly's). They were planted close together in a line along the boundary and formed a dense screen. Therefore, I am satisfied that they are planted so as to form a hedge, engaging s 14A(1)(a). I counted less trees in this hedge than Mr Kacarovski, but this is incidental, provided there is a group of "2 or more trees". I am satisfied that at least two of the trees rise to a height of at least 2.5 metres (s 14A(1)(b)). Consequently, s 14A(1) of the Trees Act is engaged.
4. Of the seven trees Mr Kacarovski said were obstructing his side windows (1-7), four of the trees did not meet the requirements of the Trees Act. Satisfaction of s 14A(1)(a) requires the trees to be "planted so as to form a hedge", which requires an intention to plant the trees as hedge trees, to form a hedge.
5. Johnson v Angus [2012] NSWLEC 192 (Johnson), an appeal judgment, provides extensive commentary on the interpretation of Pt 2A of the Trees Act. At [28] of Johnson, Preston CJ said: "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 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."
6. Three Murraya trees (5-7) are likely to form a hedge but each of the other four trees (1-4) were different species, with different form, foliage, and flowers. One tree, a deciduous Magnolia, was entirely dissimilar to its neighbour, a variegated Hibiscus.
7. His Honour explored such dissimilarity, at [41] of Johnson: "But the criterion of sufficient proximity does not exhaust the relevant criteria to be considered in determining whether trees are planted so as to form a hedge. Section 14A(1)(a), construed in its own terms and in the context of Part 2A, does not so circumscribe the criteria that may be considered in determining whether the trees are planted so as to form a hedge. Other criteria are relevant, including the species of trees planted; whether the trees are all of one species or different species and, if different species, the similarity or dissimilarity and compatibility or incompatibility of the different species in terms of morphology (the form and structure of the trees), function and growth of the trees; the planting arrangement of the trees, such as whether the trees are planted in a linear, curvilinear, or another spatial relationship conducive to the trees forming a hedge."
8. I detected no regular spatial pattern between Tree's 1-4. Rather, they were located so as to provide space to grow within the constraints of a crowded garden, at varied distances from the boundary. Even though these trees may have melded together to obstruct Mr Kacarovski's side windows, this alone does not make them a hedge for the purpose of the Trees Act. Tree's 1-4 are individual amenity trees, for which there is no remedy under the Trees Act for obstruction of sunlight or a view.
9. At [37]-[38] of Johnson, his Honour said: "37 I reject the Johnsons' submission as to the meaning of the adverb clause of purpose, 'so as to form a hedge', for three reasons. First, the Johnsons' submission fails to inquire as to the purpose of the planting of the trees at the time of planting. The earlier grammatical analysis establishes that s 14A(1)(a) requires that the trees that are the subject of the application under s 14B of the Trees Act be 'trees that are planted ... so as to form a hedge'. As I have explained earlier, this requires that the trees, at the time of planting, be planted so as to form a hedge and, having been so planted, the trees continue that state of affairs of being planted so as form a hedge. The requirement of being planted so as to form a hedge is to be understood as requiring that the trees be planted in order to form, or with the result or purpose of forming, a hedge. 38 If trees are not planted at all, but rather are self-sown, or are not planted for the purpose of forming a hedge, but rather for some other purpose, then Part 2A will not apply to the trees. In either of these circumstances, it will not matter whether the trees, as events have happened, have in fact grown so as to form a hedge. Part 2A will not apply to the trees."
10. As with the front hedge, the three Murraya trees were planted close together in a line along the boundary. They were positioned in front of the applicant's living room window, presumably to provide privacy for the respondents. Therefore, I am satisfied they are planted so as to form a hedge and engage 14A(1)(a) of the Trees Act.
11. The Murraya trees had been pruned to a height of about 1.5 m during the April 2024 works. Nonetheless, the applicant's photographs displayed the Murraya trees growing above Mr Kacarovski's roof line when the Alexander palms were in situ prior to 2012 and again more recently, and dense foliage close to the window causing a severe obstruction of sunlight. There was no submission suggesting the trees had been pruned until April 2024. Further, the trees are mature and appeared healthy, and had the propensity to rapidly regrow to again obstruct the windows.
12. In these discrete circumstances, regardless that the trees did not reach 2.5 m at the hearing, the Court relies on the rationale in Steber v Job [2019] NSWLEC 1308, which considers obstruction by the trees to be an 'ongoing state'. The trees have recently exceeded a height of 2.5 m and severely obstructed the applicant's window, and without intervention, are likely to do so again. Consequently, they are trees to which s 14A(1) applies.
13. 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: 14B Application to Court by affected land owner … (a) sunlight to a window of a dwelling situated on the applicant's 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.
14. Section 14D of the Trees Act provides the Court with discretion to make a wide range of orders.
15. Section 14E(1)(a) is satisfied as it is the same requirement satisfied at s 10(1)(a) of Pt 2 of the Trees Act, for the applicant to make a reasonable effort to reach agreement with the owner of the land on which the trees are situated.
16. I am also satisfied that the Applicants gave notice of the application to the respondents and Council, in accordance with s 14C. Therefore, s 14E(1)(b) of the Trees Act was engaged.

Is the obstruction of sunlight severe?

1. The next step is to assess the severity of the obstruction of sunlight to a window of the applicants' dwelling, and views from the dwelling as a consequence of any or all of the trees in the hedge.
2. Section 14E(2)(a) states: 14E Matters of which Court must be satisfied before making an order … (2) The Court must not make an order under this Part unless it is satisfied that: (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…
3. With respect to the front hedge, Mr Kacarovski nominated one large north facing window (W1), located about 3 m southwest of the hedge, which extended north of the front of the applicant's dwelling by about 5 m. There were two large Eucalyptus trees in front yards immediately west of the Stewart's, but plants in the gardens of Mr Kacarovski and his east side neighbour, were relatively small.
4. In assessing obstruction of sunlight to a dwelling window, the Court takes guidance from criteria used by local government for assessment of overshadowing in development applications. The most common requirement applied is for sunlight to impact at least 50% of a window of a living area for at least 50% of the time between 9am and 3pm.
5. As W1 faced north, it would receive sunlight throughout the year, except during mid-summer when the sun may be obstructed by the overhanging roof. From W1, the front of the hedge is towards the north northwest, hence W1 would be unobstructed all morning and through the middle of the day. The hedge would obstruct sunlight in the afternoons, but not until about 3pm in summer and about 2pm in winter. Considering the local government DA criteria, this is not a severe obstruction of sunlight to W1.
6. The applicant's living room window was labelled W2. Direct sunlight was restricted by the window's western aspect and the respondents' tall dwelling wall less than 2m distant. Though morning sunlight was unavailable to W2, in the absence of the hedge, the setback of the respondents' dwelling and the low garage provided opportunities for afternoon sunlight in the cooler months.
7. The Murraya trees were large and long established and close to W2, and the applicant's photographs showed they had formed a dense screen which obstructed the precious sunlight that may have been available and also heavily restricted ambient light. In the language of the third step of Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140; at [28], the obstruction of sunlight to W2 by the Murraya hedge is severe, bordering on devastating. Consequently, I am satisfied that s 14E(2)(a)(i) of the Trees Act is engaged.

Is a view severely obstructed?

1. Mr Kacarovski claimed that the front hedge severely obstructed a clear view from his dwelling of the front common boundary. The applicant said the hedge provided the opportunity for an intruder to hide unseen and thus it negatively impacted his security.
2. This claim regarding security does not satisfy the requirements of the Trees Act as the view that is allegedly obstructed, that of an intruder hiding behind the respondents' hedge, does not exist. It is merely a hypothetical creation. From V1, the nominated viewing point through W1, Mr Kacarovski had an open viewing arc from north northwest through north to east. Therefore, I am not satisfied the applicant's front view is severely obstructed by the hedge.
3. Mr Kacarovski labelled nominated viewing locations along the side of the dwelling, V2-V4, with V2 being views through living room window, W2. As the trees allegedly severely obstructing sunlight to V3 and V4 were the four trees determined as amenity trees rather than a hedge, V3 and V4 do not qualify for assessment of view obstruction.
4. Having been pruned, the side Murraya hedge did not obstruct the applicant's views at the hearing. However, as this hedge would have severely obstructed the applicant's view through W2 for more than a decade prior to the April 2024, in accordance with the rationale established in Steber, s 14E(2)(a)(ii) of the Trees Act is engaged.

Balancing of interests

1. As s 14E(2)(a) of the Trees Act is met for the Murraya hedge, there is a need to consider the balancing of interests required by s 14E(2)(b). This requires assessment of relevant elements in s 14F to determine if: (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.
2. Regardless that the respondents pruned the Murraya hedge to about 1.5 m prior to the hearing, the hedge's foliage screening W2 had compensated for a short boundary fence in providing privacy and aesthetic enhancement. Particularly as V2 is a view directly into the Stewart's yard across a side boundary, I am not satisfied that the imperative to open such a view to the applicant outweighs the respondents' reasonable desire for privacy.
3. The obstruction of sunlight to W2 was sufficiently severe and protracted, however, that orders for annual pruning are required, even though the respondents' aesthetic appreciation of the hedge will likely decline.

Conclusion 1. Based on its ongoing state, the Murraya hedge was determined to be causing a severe obstruction of sunlight to W2 and views through W2, whereas the front hedge was not causing a severe obstruction of sunlight to W1, nor a severe obstruction of views. 2. Orders will be made for pruning of the height of the Murraya hedge in April 2025 and each subsequent April to maximise potential sunlight access during the short days of the cooler months, when sunlight is especially valued.

Orders

1. The Court orders that: 1. Within 30 days of the date of these orders, the respondents shall pay the applicant $1815.00 (50% of $3630.00) by Electronic Fund Transfer (EFT) as compensation for the cost of tile, ceiling and wall repairs. 2. The respondents, initially at their expense, shall contract Draper Fencing or another licenced fencing contractor with all appropriate insurance, to construct a 1.8 m tall, treated pine fence approximately 41 m long, along the surveyed boundary between the southern end of the common front fence and the common rear boundary corner, in accordance with the specifications of the Draper Fencing Quote Number QU-1301 of 25 January 2024, for $8,663.60. The works shall be completed within 90 days of the date of these orders. 3. The $8,663.60 Draper Fencing quote shall form the basis for apportionment of cost between the parties, but a 5% allowance shall be made for inflation as the quote expired in February 2024 and will likely need to be updated. Therefore, the maximum base price for apportionment of cost shall be $8,663.60 plus $443.18 = $9,096.78 and the applicant's maximum liability shall be 25% of the maximum base price = $2,274.00, even if the respondents choose a more expensive contractor. 4. Within 7 days of the completion of the fencing works, the respondents shall email the applicant a copy of an itemised paid invoice for the fencing works. Within 7 days of receipt of the paid invoice, the applicant shall pay the respondents by EFT; 25% of the total if the invoice total is less than $9,096.00, or, $2,274.00 if the invoice total is more than $9,096.00. 5. In April 2025 and during April of each subsequent year, the respondents, at their expense, shall prune the height of the Murraya hedge in front of W2 to a maximum of 1.6 m above ground level. 6. The applicant shall grant access to the respondents' chosen licenced fencer or arborists to complete works or tidy the site, upon 72 hours' notice by email. 7. The tree works are to be undertaken in accordance with the guidelines of the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work 2016, and all works shall be completed during reasonable daytime working hours.

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: 12 November 2024