Kiotis v Kresevic [2026] NSWLEC 1204 | Case summary | Zoe

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Kiotis v Kresevic [2026] NSWLEC 1204 | Case summary | Zoe

COMMISSIONER: Mr and Mrs Kiotis (the applicants) share a rear boundary with Mr Kresevic (the respondent) between their properties in the Illawarra region suburb of Lake Heights. The front of the respondent’s dwelling faced east, from high up a moderate to steeply sloped hill. Broad views, across Lake Illawarra towards the west and southwest were gained from the rear of the respondent’s dwelling and the top of his deep back yard. The common boundary, which extended from approximately north to south, was delineated by 1.8 metres (m) tall Colorbond fence.
A solitary She Oak (the tree) growing near the southwestern corner of Mr Kresevic’s back yard was identified in an Arbor Express, Arboriculture Assessment and Report dated 10 June 2025 (arborist report) as a Casuarina glauca. The report’s Tree Schedule noted both height and canopy spread as 12 m and trunk diameter at breast height (DBH) as 0.75 m. The tree was about 1.5 m from the common boundary, and its canopy overhung the applicants’ land by about 4.5 m.
In 2022, Mr and Mrs Kiotis installed a ‘granny flat’ at the rear of their backyard, which they leased to a tenant, Mr Spurtacz. The edge of the tree’s canopy overhung the granny flat by up to about 1.5 m. Scale leaves (needles) and sticks which fell and blew from the tree allegedly caused dwelling damage, and maintenance issues which were difficult and expensive to rectify. Mr Spurtacz also provided a testimonial detailing his problems with the tree.
According to the applicants, the parties met on 25 January 2025. They verbally agreed to apply to Wollongong City Council (Council) for tree removal, which required a signed endorsement of the application by Mr Kresevic. Mr Kiotis applied and paid the relevant fee, but soon after, Mr Kresevic unilaterally withdrew the application. Mr Kresevic requested Mr Kiotis make “a statutory declaration, accepting full responsibility for all costs and any potential damages arising from tree removal or pruning”, as a condition of an application to Council. Mr Kiotis said he could not agree to this requirement as he was not in control of the tree removal and tree contractors would be responsible for damage claims through their public liability insurance.
After the applicants unsuccessfully attempted to organise mediation with the respondent through a Community Justice Centre (CJC), Mr Kiotis forged an agreement with Mr Kresevic for both parties to equally share the cost of tree removal and waive any future claims for damage by the tree. On this basis, Mr Kiotis re-applied to Council and procured tree removal quotes from three contractors.
Council’s Notice of Determination of 14 April 2025 refused tree removal but, along with other conditions, granted permission for pruning of branches with a maximum diameter of 120mm. Dissatisfied with Council’s decision, Mr Kiotis procured a building inspection report from Houspect (building report), dated 24 April 2025.
With the respondent’s approval, Mr Kiotis again applied to Council for tree removal and included the building report, a statement and quote from a plumber, and letters from the applicants’ tenant and their east side neighbour. Council reaffirmed its original decision which granted permission for pruning only, with the maximum branch diameter reduced to 100mm.
Following legal advice, Mr Kiotis procured the arborist report and emailed it to Council’s Lord Mayor. A letter of 10 July 2025 reiterated Council’s previous determination that only permitted pruning. Council’s Manager of Open Space and Environmental Services, whom Mr Kiotis subsequently contacted, advised that the next step would be an application to the Land and Environment Court.
By this point, Mr Kresevic allegedly again required Mr Kiotis make “a statutory declaration, accepting full responsibility for all costs and any potential damages arising from tree removal or pruning as a condition of a further Council tree removal application. Consequently, Mr and Mrs Kiotis made an application, pursuant to s 7 of Pt 2 of the Trees (Disputes between Neighbours) Act 2006 (NSW) (the Trees Act), seeking orders for tree removal.

The water tank has been compromised by continuous contact with “invasive tree foliage”, which has caused water contamination. This is evidenced by water discolouration in the toilets which poses a health risk due to potential mould growth.
Casuarina needles constantly fall and blow onto the roof of the granny flat and accumulate in the gullies and gutters. The applicants spent more than $1600.00 on professionally installed gutter guard but the fine Casuarina needles bypassed gutter guard and blocked roof valleys. This has caused water overflow and increases the risk of future rusting and mould development.
Debris caught under gutter guard is obstructing guttering, down pipes, and the water tank filter, causing water overflow. This can lead to rust, structural deterioration, and mould.
Foliage travelling from the gutters and downpipes is causing blockages in underground stormwater pipes which run to the street. This risks backflow and potential flooding into the eaves.
The maintenance burden imposed by the tree was unreasonable and expensive. Considering the time involved and practical impediments associated with respecting the tenant’s privacy, such maintenance was almost impossible.
Corrosion to the steel panel boundary fence “has likely been caused by falling branches and tree sap”.
Accumulation of needle like foliage around the front entry to the granny flat, in the rear courtyard, and on paved walkways, creates a slip hazard risk to resident. Needles may accumulate overnight and cover the pathway, especially during periods of high wind.
Branches falling on the rear courtyard and paved walkway “from a height of approximately 15 m pose a serious risk of injury”. There is a future risk of the tree falling or dropping large branches onto the roof of the granny flat, potentially causing structural damage, injury, or death. Photos 1,14, 15 and 16 were referenced as substantiation.
There is a risk of embers from the barbecue igniting the carpet of highly combustible dry needles and causing burns or serious injury to the tenant. The needles are difficult to remove.
The applicants relied on the following evidence: the arborist report, the building report, a plumber’s statement and quote, and testimonials from their tenant and a side neighbour.

The arborist report, prepared for both parties by Robert de Jong, an Australian qualification framework (AQF) level V arborist of Arbor Express, provided the following commentary:
A site visit was conducted on 7 June 2025. The tree was located on a hilltop exposed to windy conditions with gusts reaching up to 80 km/h. The tree’s canopy, which is about 11 m wide and 9 m tall, is particularly vulnerable to wind stress due to direct exposure from across the lake and up the hill.
The significant branch with a diameter greater than 100 mm that failed and was removed in 2019, has extensive decay in the resulting open wound. The decay appears to extend down towards the basal roots raising concerns about overall structural integrity.
The tree’s trunk base was about 1.5 m from the common boundary and excavation for the new dwelling at the rear of the Natoli’s property extended to a depth of 1 m and about 0.5 m from the common boundary fence. Consequently, the excavation disturbance extended to about 2 m from the tree’s trunk.
Excavation impact: The recent excavation substantially compromised the Tree Protection Zone (TPZ) of 9 m and the Structural Root Zone (SRZ) of 3 m, causing an encroachment of approximately 35%. Such intrusions significantly stress the tree, raising alarming concerns about its structural integrity. The disturbance from this excavation will not only (impact) nutrient uptake but also the geo-mechanical stability of the tree.
Conclusion: The area is prone to severe windy conditions, where trees near residential structures should be in optimal health. The dense canopy of the tree acts like a sail which exerts considerable pressure on basal roots which could exacerbate existing weaknesses. Trees have adaptive capabilities but may struggle to bolster structural integrity in the presence of significant decay, especially if such decay has penetrated basal roots on the side where a branch or stem has been removed. Additional concerns arise from excavation on the applicants’ land about 2 m from the trunk. It is typical for measures to protect roots from damage to be implemented during development. Given the downhill slope, one would expect compression roots to play a stabilising role.
The tree’s structural stability and safety was suspect due to the possibility that fungal decay was spreading in important basal roots, and unpredictability arising from the applicants’ excavation that encroached into the SRZ. The tree was assigned a low retention value. Removal of the tree was recommended.

The scope of the inspection of 24 April 2025 was the structure of the dwelling, and the impact of leaves (described as pine needles) and branches on the roof, gutters, PVC stormwater system, water tank, paved areas, paths, and common boundary fence. The inspection also included identification of fire risk or other hazardous conditions.
Findings: The granny flat was structurally sound and free of obvious defects. At the time of the inspection, the quantity of tree debris was excessive near paved areas, private open spaces, and gardens adjacent to the rear boundary. Tree debris significantly affected the roof and gutter system. Gutter guard installed on the perimeter gutter closest to the tree was ineffective in keeping the gutters clear of debris. Needles had allegedly affected adjoining properties within a 60 m radius of the tree
The buildup of debris inhibits the flow of stormwater which, “in time will increase the risk of water ingress to the structure”. This in turn, increased the potential buildup of unhealthy pathogens and could increase the health risk to the resident. The dry tree debris is volatile and a fire risk if not removed and it increased the risk of tripping and falling.
Excessive buildup of tree debris on top of the water tank and stormwater pits will inhibit the flow of stormwater and increase the risk of water ingress to the structure. This may increase the potential for unhealthy pathogens which will cause a health risk to the resident. Overflow from water tanks will cause surface water run-off which may have a detrimental effect on the adjoining property. Photos of the filter, the top of the water tank, the water tank filter, and pine needles near the stormwater pits are included on page 6.
As shown in photos on page 7 of the building report, the Colorbond finish on the boundary fence had developed surface corrosion in the vicinity of the tree. If left untreated, this will cause irreparable damage to the fence and require rectification or replacement.
Summary: There was excessive tree debris under the tree and across a large zone of influence including neighbouring properties. Structural effects of the tree on the applicants’ retaining wall and the fence should be clarified with a suitably qualified engineer. The building would be suitable for proposed extensions and renovation works and a suitably qualified building designer should be engaged to provide draft plans for costing purposes.

The tree had a single trunk and a branch structure typical of the species, which is characteristically structurally sound and resilient. Contrary to the neighbour’s testimonial that the tree was sick and dying, its full, dense, live canopy of scale leaves (needles), and signs of active thickening of its already stout trunk, reflected good health and vigour. Branches were evenly distributed around the tree and the trunk, branches, and branch attachments appeared structurally sound.
While arguments and conclusions in the arborist report were not unreasonable, based on the arboricultural expertise I bring to the Court, I was not persuaded that the recommendation of tree removal was justified, for the following reasons:
Firstly, to provide context, Casuarina glauca are generally found in stands around brackish water, such as the banks of tidal estuaries, where soil erosion and root damage are not unusual. Like Casuarina cunninghamiana*,* that grow in and around fresh waterways, environmental adaptation has caused Casuarina glauca to possess a dense, strong, extensive root system that is ordinarily very well anchored.
Secondly, I was not persuaded by Mr de Jong’s opinion that fungal decay in the broken branch stub had spread via the trunk to a major root so that root anchorage and tree stability were compromised. Photo 5 in the arborist report, which was meant to substantiate this hypothesis, showed the branch stub. It was captioned, “Major decay extending well into the trunk. The area around the hollow shows very little reactive wood suggesting that the decay is advanced”.
I am not satisfied this conclusion is valid or reasonable. When the branch broke in 2019, it was pruned back to about 400 mm beyond the branch collar, rather than at or just outside the branch collar (natural target pruning) in accordance with the Australian pruning standard (AS4373: 2007). Nonetheless, bark around the branch collar displayed a distinct separation between dead and live tissue.
The branch collar of a healthy tree is ordinarily a zone of enhanced natural protection and defence against penetration and spread of fungal decay. The residual branch stub appeared long dead and had been colonised by wood decay fungus and borers. The dead stub in Photo 5 contained “the hollow” referred to in the caption, “The area around the hollow shows very little reactive [sic] wood”.
This was unsurprising. The area around the hollow appeared to be long dead! To be reactive, wood must be alive. Therefore, the subsequent claim that … “very little reactive wood” around the hollow suggested “that the decay is advanced” was unfounded and did not reflect reality. At best, it was an unreasonable leap of logic.
Discoloration of the branch stub and trunk provided a reasonable basis for a preliminary diagnosis of possible root damage. However, it is an unsubstantiated ‘big jump’ from “decay appears to extend down towards the basal roots raising concerns about overall structural integrity”, as noted in the report, to a finding of “[m]ajor decay extending well into the trunk” that was “advanced” (from Photo 5 caption). Further, Mr de Jong undertook no internal trunk diagnostics and/or excavation of roots to test his hypothesis that fungal decay had spread through the trunk and roots.
The Conclusion of the arborist report commenced with, “[t]he area is prone to severe windy conditions, where trees near residential structures should be in optimal health”. Perhaps this was a loaded statement to cast aspersions on the tree as I otherwise see no purpose to include such a truism.
In a following sentence, the arborist report noted, “[t]he dense canopy of the tree acts like a sail which exerts considerable pressure on basal roots…”. As foliage density is an important indicator of health, a “dense canopy” of foliage is generally indicative of a healthy tree. A tree’s live canopy and root system have a natural tendency to equilibrium. As the tree displayed good health and vigour, given the absence of visual indications of instability, it was likely to have an extensive, healthy root system, typical of the species. Casuarina glauca trees that are otherwise healthy, like this one, adapt to wind forces and are rarely destabilised and blown over.
Consequently, on the balance of probability, I have not been persuaded that visible indications on the branch stub, trunk, and root/s reflect sufficient structural deterioration from decay that may cause the tree to blow over. Whether root damage was minor or extensive, or whether it was compromising structural integrity at all, was largely unknown and uncertain.
Thirdly, while the arborist report cursorily addressed the forces of compression and tension exerted on the tree’s root system in ‘Notes’, additional considerations are relevant. Essentially, when roots are stretched, they are under tension. When impacted by a squeezing load, roots are under compression. To establish and maintain stable anchorage on a steep hill, the size, shape and configuration of roots adapt in response to these ever-present forces. A root system is rarely configured in a circle around a tree’s trunk base. On a hill, the root system is typically oval shaped with most of the roots upslope from the tree, under tension.
Tension roots are usually long, numerous, multi-branching, and relatively shallow. Compression roots, which prop the tree downslope, are usually shorter, deeper, thicker, and angled diagonally down, or vertical. Hypothetically, the tree is likely to have a large broad root network in the respondent’s open lawn above the tree, whereas roots downslope of the tree which were vulnerable to excavation damage, were likely to be restricted closer to the trunk base.
Though Mr de Jong raised reasonable concerns about the impact of excavation for the applicants’ granny flat within about 2.0 m of the tree, no root mapping or other excavation was undertaken, in order to clarify the extent and nature of root damage and justify subsequent claims.
The incursion into the CRZ, said to be 35%, is of little use to the applicants or the Court in isolation. The methodology underpinning this finding in the Australian standard for Protection of trees on development sites (AS4970: 2025), is a guide only. To provide useful information, application of the methodology requires context through consideration of site factors such as slope and the age, vigour and species of the tree. This allows more holistic determination of the situation.
Fourthly, there were no signs of soil heaving or uplift, or cracks in the soil adjacent the tree or in the surrounding area that may lead an arborist to reasonably doubt the tree’s stability in the ground. Consequently, while wind throw is always possible, possible wind throw is not a reasonable basis for tree removal. The adduced evidence did not support a finding that wind throw was probable, as required to engage s 10(2) of the Trees Act.

The applicants’ dwelling was parallel to the common boundary, and the closest gutter was about 3 m from the common boundary fence. The curved edge of the tree’s canopy overhung the dwelling roof by about 1.5 m but photographs in the application showed needles, blown from the tree, filling the sloping gullies to the peak of the roof.
Mr Kiotis was adamant that the extent and burden of maintenance was excessive and the cost and time involved were unreasonable. However, considering the extensive body of precedents where Barker has applied, I was satisfied the Tree Dispute Principle, at [20], applied to the Kiotis’ maintenance burden.
The dwelling was single story and small, with two bedrooms. It had flat surfaces on all sides. The source of the maintenance burden was excessive debris from the tree on the dwelling roof and surrounds. Considering the tree dispute principle in Barker, an expectation for a reasonably active person with a long-handled broom and small stepladder to regularly sweep most of the needles down the roof gullies and off the edge of the rear roof and gutters, is not unreasonable.
Photos 5 and 6, which accompanied the application, showed a large quantity of needles in roof gullies and gutters but they also showed that high quality gutter guard had been installed to a high standard and only a small proportion of needles appeared to breach the mesh guard. As with many tasks, about 80% of the debris would probably be cleared in about 10-20% of the time and cost of a more thorough cleanout that included gutters, downpipes, stormwater pipes, and the tank. Notwithstanding the applicants considerable spending on measures to mitigate debris, needles are less likely to penetrate gutter guard if removed when they are fresh and rigid. Therefore, regular, quick debris removal with occasional thorough maintenance would keep needles at a manageable level, prevent secondary problems such as water ingress, and reduce risk and annoyance for the tenant.
I am not persuaded that water in the toilet stained by extractives from the tree presents a health or hygiene threat. No reliable evidence was submitted by the building inspector or plumber to substantiate statements such as, “… increases the potential buildup of unhealthy pathogens and could increase the health risk to the resident”.
It is not unusual for tank water to be discoloured by organic matter. In the absence of evidence of health risks, the tenant’s preference for clear water in the toilet is reasonable, but it is immaterial to the applicants’ claim for tree removal under the Trees Act. This would similarly apply if the same water was under consideration in the applicants’ toilets. The plumber’s statement provided some relevant maintenance details, but added little to substantiate the applicants’ claims.
Additionally, the Tree Dispute Principle established in Barker was extended in Hendry v Olsson [2010] NSWLEC 1302 (Hendry), at [11]-[14], to include the cleaning of mould and slime. Based on this precedent, maintenance or cleaning that may be required to reduce discoloration of toilet water would be considered reasonable.
The applicants’ claims of damage to the granny flat roof, gutters, downpipes, stormwater system, and the tank stem from insufficient maintenance of the tree’s debris falling or blowing on the roof. Considering the expectation of reasonable maintenance established in Barker, related damage and compensation claims are refused.
As to the claim of damage to the top plate of the fence, I am satisfied wear and tear over time and salt laden coastal winds were likely primary contributions to corrosion. I saw no relevant denting that may have been caused by sticks dropping from the tree. While the tree may have also played a role, the corrosion was minor and isolated and did not justify intervention. The fence was long established and remained fit for purpose.

For injury to persons, the Court considers the risk posed by a tree in the foreseeable future based on the characteristics of the tree/s, the history of any failures, any other relevant evidence, and the circumstances of the site apparent at the time of the hearing (see McPherson v Lake [2017] NSWLEC 1081, at [10]).
The applicants’ claim regarding destabilisation and windthrow has been considered and dismissed. Remaining claims of risk of injury to persons related to impact from falling sticks, and from needles and sticks causing trip hazards and fire hazards.
The tree was healthy and vigorous and appeared structurally sound. The last significant branch failure was in 2019 and no damage or injury was recorded.
Notwithstanding some larger exceptions, the sticks collected by the tenant and displayed in the applicants’ Photos 15 and 16, appeared relatively small and light. Most of the deadwood looked to be about 20 mm diameter. Deadwood of this size would ordinarily not be considered likely to cause injury that justifies intervention with a tree.
By way of explanation, when the Court makes orders for removal of deadwood, 20 mm is the usual minimum diameter specified, as smaller deadwood is unlikely to cause more than fright or a superficial injury. Further, considering the arborist report noted tree height as 12 m, it was unrealistic for the applicants to claim that branches may fall 15 m.
As debris from the tree on the dwelling roof and surrounds was the source of risk of injury claims, increased frequency of needle removal was an obvious and reasonable solution. Consequently, I am not persuaded that the tree presents a genuine risk of injury in the foreseeable future which justifies intervention.
If I was wrong and s 10(2) of the Trees Act was satisfied, in order to determine, what, if any, orders should be made, the Court must consider relevant matters in s 12 of the Trees Act. Based on this hypothetical situation, the following considerations would be relevant.

Considering the expectation of reasonable maintenance established in the Tree Dispute Principle in Barker*,* at [20], and the decision of Hendry regarding mould, the applicants’ claims arising from Casuarina needles and twigs damaging the dwelling roof, gutters, downpipes, stormwater pipes, and water tank, are all refused, as are claims regarding damage due to mould.
The applicants’ failed to substantiate their contention that superficial corrosion along a 200-250 mm section of Colorbond fence capping under the tree was due to exudation from the tree. No such exudation was apparent, and the applicants submitted no causal link between the tree and the corrosion.
The applicants’ claims regarding destabilisation and windthrow were considered and refused, above at [43]-[58]. The potential for destabilisation in the ground from a decayed major root and/or root damage from excavation, are both valid concerns, as highlighted in the arborist report. Nonetheless, for both issues, the arborist failed to elicit sufficient reliable evidence of damage to persuade the Court that tree wind throw was more likely than merely possible. With respect to wood decay fungus in the branch stub, I favoured my interpretation over the arborist’s argument.
The onus is on the applicant to prove their case, on the balance of probability. The crux of the matter is Mr de Jong’s arborist report, which must explain why windthrow is probable for orders to be contemplated. Regardless that Mr de Jong’s and my interpretation of the tree’s stability were founded on sound arboricultural practice, neither interpretation was supported by onsite evidence of root damage, and thus, of causal links between root damage and probable windthrow. Both were speculative.
On this basis, there may have been root damage during excavations for the granny flat and such root damage may have been serious. The impact of root damage may not become evident on the tree for many years. Nonetheless, as Die back from the tips of branches is indicative of tree decline due to root damage. Should the tree exhibit such symptoms, another application could be lodged.
Currently, in the absence of sufficient reliable evidence that wind throw of the tree is likely in the foreseeable future, and with damage claims arising from tree debris refused upon consideration of the Tree Dispute Principle in Barker, the Court has no powers to make orders. Consequently, the application to remove the tree is refused.
The applicants installed the granny flat under the long-established tree. While I acknowledge the limitations of the site, debris from the tree would have already extended beyond the boundary, thus secondary issues associated with the dwelling were foreseeable. Nonetheless, the tree is healthy and vigorous and with little stress, is likely to tolerate pruning of overhanging branches as permitted in the Council’s Notice of Determination of 30 May 2025. The pruning would require access to the tree from Mr Kresevic’s back yard, but branches could be removed through the applicants’ property. As the applicants would be the beneficiaries of such works, it seems reasonable that they should finance them. As well as reducing debris falling and blowing onto the applicants’ land, such pruning may also mitigate dropping branches and Mr Spurtacz’s disturbed sleep.