2. The interim orders made 22 January 2020 are discharged.

1. Since moving into their home in 1998 the respondents, Mr Foley and Ms Dallinger, have cultivated a natural style garden in their backyard. In 2011 the applicant, Ms Kusiak, bought the house next door.

2. In late 2018 Ms Kusiak first raised concerns with the respondents about their garden growing over the shared fence and encroaching into her backyard. Ms Kusiak was concerned, amongst other things, that the vegetation had caused the parties shared fence to deteriorate.

3. Mr Foley removed all the encroaching vegetation except for two large branches of a mature Paperbark tree, growing in his backyard next to the fence.

4. The respondents' regard the Paperbark as a valuable asset both to their garden and to the local environment. They received advice last year from Steve Griffiths, a qualified arborist, that the Paperbark had a good useful life expectancy of 30 years and removal of the branches would endanger its health.[1]

5. The branches extended a considerable distance over the fence. Mr Griffiths told the tribunal that slightly more than one third of the tree's canopy overhangs the rear of Ms Kusiak's backyard.[2] In her witness statement Ms Kusiak estimated the branches extended approximately three and a half metres over her land.[3]

6. On 16 April 2019 Ms Kusiak applied to the Tribunal for orders that the respondents prevent the tree from encroaching on her land or touching the fence "so as to cause it damage". In essence, Ms Kusiak sought an order that the respondents cut their tree back to the fence line. She did not seek damages. She founded her application on trespass and nuisance.

7. When Ms Kusiak filed the application about the Paperbark she already had on foot a separate application against the respondents for a fencing determination.[4] Ms Kusiak wanted the shared fence replaced. The respondents were concerned about the impact the construction of a new fence would have on their tree. As the tree figured in both applications the Tribunal decided to hear the matters together.

8. I heard both applications on 22 January 2020 and determined the fencing application on that day. I reserved my final decision on the Paperbark, and made interim orders for its protection, pending further orders of the tribunal.

9. The respondents' first line of defence was that Ms Kusiak had commenced her claim more than six years after the cause of action in trespass and nuisance first accrued and therefore her application was statute barred. They further argued that even if the application was not statute barred they were not liable on the facts.

10. After considering the parties' evidence and submissions I decided to dismiss Ms Kusiak's application regarding the tree.

11. I found that Ms Kusiak's action in trespass was not statute barred because of the ongoing nature of the encroachment. However, I was not satisfied that the intrusion of the branches over Ms Kusiak's backyard amounted to trespass because it did not result from a direct action of the respondents.

12. Unlike trespass, which is actionable per se, proof of damage is required to complete a cause of action in nuisance. Ms Kusiak claimed that the overhanging branches of the respondents' Paperbark had damaged what she described as a Pacific Blue Bush growing in her backyard.

13. I found, on the balance of probabilities, that the damage to the bush was apparent more than six years before Ms Kusiak commenced these proceedings and therefore her action in nuisance was statute barred.

14. Despite the absence of any actualised damage required to complete a cause of action in nuisance it was open to me to make orders to prevent apprehended damage, and thus the commission of a nuisance.[5]

15. Ms Kusiak had requested orders in part to prevent apprehended damage to the parties shared fence as a result of the ongoing encroachment of the Paperbark. I found that the Paperbark posed no imminent risk of damage to the fence and so declined to make the orders sought.

16. The reasons for my decision are set out in full below.

17. Having reached my final decision on Ms Kusiak's application, I have discharged the interim orders for the protection of the Paperbark made at the hearing on 22 January 2020.

18. During proceedings the issue of whether the Paperbark was a regulated tree and therefore protected from being cut back by the Tree Protection Act 2005 was hotly contested. In the end I did not need to determine this issue as my decision was made on unrelated grounds.

19. The parties should not interpret the discharge of the interim orders as permission to damage the respondents' Paperbark. This decision does not, and is not intended to, effect the liability of any person under the Tree Protection Act 2005 or the general law pertaining to property damage.

The preliminary issue - was the application statute barred?

20. The respondents claimed that Ms Kusiak's application could not be maintained because it was not commenced within the relevant time limit set out in section 11 of the Limitation Act 1985 which provides:

(1) Subject to subsection (2), an action on any cause of action is not maintainable if brought after the end of a limitation period of 6 years running from the date when the cause of action first accrues to the plaintiff or to a person through whom he or she claims.

(2) Subsection (1) does not apply to a cause of action in relation to which another limitation period is provided by this Act

A cause of action' is defined in the Limitation Act's Dictionary as, "the fact, or combination of facts, that gives rise to a right to bring a civil proceeding."

21. The encroachment of the respondents' tree into the airspace above Ms Kusiak's backyard was an essential factual element of her claims in both trespass and nuisance.

22. The Paperbark was present and encroaching when Ms Kusiak bought her property in 2011 and, according to the respondents, the tree was much the same size then as it is now,[6] and yet she waited until 16 April 2019 to start these proceedings.

23. The respondents relied on aerial photographs in evidence taken by Google Maps in 2012 and equivalent photographs taken in 2018. In both about one third of the Paperbark's canopy can be seen extending over Ms Kusiak's backyard, although the diameter of the canopy is slightly larger in the later photograph.

24. The following combination of facts are necessary to establish a cause of action in trespass:

(a) Physical intrusion upon applicant's land, including airspace, if the intrusion is at a height potentially necessary for the ordinary use and enjoyment of the occupier.

(b) Such intrusion must be:

(i) without authority

(ii) by the direct action of the respondent.

(iii) Intentional - although at common law the intrusion can be either intentional or negligent, in the ACT under section 141 of the Civil Law (Wrongs) Act 2002 a respondent has a complete defence if they can establish that the intrusion was either because of negligence or was not intentional.[7]

25. Trespass is actionable without proof of damage. Ms Kusiak's cause of action in trespass first accrued, subject to the other factual elements of the tort being established, in 2011 at the moment she took possession of her new backyard complete with the encroaching Paperbark branches. But Ms Kusiak complaint is not of a single act of trespass, such as the throwing of an object into her backyard, but of a continuing trespass as the tree remained and grew in situ.

26. As the alleged trespass was ongoing a new cause of action arose for each day the tree encroached on Ms Kusiak's land and accordingly the action she commenced on 16 April 2019 was not statute barred.

27. Although I was satisfied that the respondents' tree intruded into Ms Kusiak's potentially useable airspace without her authority I dismissed the claim in trespass because Ms Kusiak had not established that the intrusion occurred by the direct action of the respondents, as opposed to the operation of natural forces. As Preston CJ of the NSW Land and Environment Court observed:

Hence, for a defendant to cut off a part of a tree growing on the defendant's land and drop it over the boundary directly into the plaintiff's land is a trespass, but the intrusion of branches or roots of a tree into the plaintiff's property due to the operation of natural forces is indirect and is treated as nuisance, not trespass.[8]

28. Ms Kusiak argued that the overhanging branches of the Paperbark constituted a nuisance because they:

(a) "Adversely her impacted the enjoyment of her leasehold".[9] Ms Kusiak did not specify how her enjoyment was impacted but when pressed at the hearing she said that the presence of the encroaching branches prevented her from realising her plan to one day grow a continuous hedge along her boundary with the respondents.

(b) supressed the growth of her Pacific Blue Bush located near the Paperbark, and underneath its canopy.

(c) posed a potential risk of damage to the fence Ms Kusiak shared with the respondents.

29. Ms Kusiak argued that her claim in nuisance was actionable without proof of damage and that it was sufficient that the respondents permitted their tree to encroach upon her property. I did not agree.

30. Unlike trespass, a cause of action in nuisance is only complete when damage is suffered. As Preston CJ observed:

Mere encroachment into the neighbour's land is insufficient to complete a cause of action for nuisance; special damage must be suffered by the neighbour as a result of the encroachment to obtain the remedies of damages or injunction: Asman v MacLurcan (1985) 3 BPR 9592 at 9594.[10]

31. However, in some circumstances an injunction may be granted to prevent apprehended damage occurring.[11]

32. A cause of action in nuisance accrues when damage is first suffered.

33. What was the nature of the damage complained of, and did it first occur more than six years before Ms Kusiak commenced these proceedings?[12]

34. Ms Kusiak's claim relied on two types of damage which she had already sustained: intangible interference with her use and enjoyment of her backyard; and physical damage to her Pacific Blue. She also relied on apprehended damage to the parties shared fence.

Intangible interference with use and enjoyment of backyard - is a ground disclosed?

35. A feeling of grievance or annoyance at a neighbour's garden encroaching upon your land is not sufficient to constitute a nuisance. Actual inconvenience must be suffered and that inconvenience must be:

...more than fanciful, more than one of mere delicacy or fastidiousness,....an inconvenience materially interfering with the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plan and sober and simple notions among the English people.[13]

36. Ms Kusiak did not identify what, if any, material interference with the use and enjoyment of her land she had actually suffered, apart from damage to her Pacific Blue, and so I treated that physical damage as the only damage potentially capable of sustaining a cause of action in nuisance.

37. Ms Kusiak complained that the encroaching canopy of the Paperbark stunted the growth of the Pacific Blue growing in her backyard. She argued that the canopy of the Paperbark prevented her plant from growing upright.

38. It was not in dispute that Ms Kusiak's plant, which both parties referred to as a Pacific Blue or Pacific Blue Bush, was actually a Ceanthus "Blue Pacific". According to an Urban Services publication[14] put in evidence by the respondents, the species Ceanthus 'Blue Pacific' usually grows to two metres in height by one and a half metres in width.

39. Photographs taken in 2019 show the Pacific Blue growing in Ms Kusiak's garden near the fence and underneath the canopy of the Paperbark. The Pacific Blue is severely bent over and the Paperbark canopy bears down upon it. The Pacific Blue has grown in an arch away from the Paperbark, until the top of it almost touches the ground.

40. Ms Kusiak did not say when the overhanging canopy began to significantly interfere with the growth of the Pacific Blue.

41. Mr Foley relied on the Urban Services publication to establish that the Pacific Blue was a short-lived shrub with a life expectancy of approximately ten years. At the hearing Ms Kusiak conceded that the Pacific Blue was "approximately over 10 years old"(sic),[15] and was near the end of its natural life.[16]

42. Based on the age of the Pacific Blue and a comparison of the aerial photograph of the canopy of the Paperbark taken in 2012 with equivalent photographs taken in 2018, which show only a slight increase in the diameter of the canopy, I concluded that the Paperbark was well established before the Pacific Blue was planted, and that both plants were co-existing when Ms Kusiak bought her property in 2011, at which time the Pacific Blue would have been about one year old. This finding is consistent with the respondents' submissions, which were not seriously disputed by Ms Kusiak.

43. The photographic evidence suggests that the Pacific Blue began to adopt an arching form early in life. Being a short-lived species, on the 15 April 2013 (six years before the commencement of these proceedings) Ms Kusiak's Pacific Blue having already lived almost a third of its expected lifespan, would have been well established**.**

44. I was satisfied on the balance of probabilities that the distortion suffered by the Pacific Blue first occurred more than six years before Ms Kusiak commenced these proceedings. Accordingly, her cause of action in nuisance based on actual damage is statute barred and I have no jurisdiction to determine it.

45. Although Ms Kusiak did not explicitly rely on apprehended damage it is implicit in her request for orders that, the respondents prevent the tree from encroaching on her land or touching the fence "so as to cause it damage."

46. Ms Kusiak referred me to the decision of the Tribunal in Young v Hammond.[17] In that case the canopy of a large and diseased tree located on the respondents' land extended over the applicant's property. The tribunal found that the tree posed a real and imminent risk of both serious personal injury to occupants and visitors on the applicants' land; and damage to the applicants' property from either the entire tree or individual branches falling.

It is enough that there has been a substantial and unreasonable interference with the use of the land. It is not necessary that there has been actual damage to the land. An interference with the use of the land arising from the imminent threat of danger to the land is enough to constitute a nuisance.

48. The tribunal ordered the respondents to permit the applicants' contractors to enter their land to remove the dangerous tree and to pay for the cost of removal.

49. In the case before me the evidence did not support a finding that the Paperbark had ever damaged the fence or was in imminent danger of doing so. There was no suggestion that the tree in any other way put at risk Ms Kusiak, her visitors or her property.

50. Although in the course of determining the fencing dispute I found that the fence needed repair, the Paperbark was not identified as the cause of its disrepair and photographs in evidence show that no part of the Paperbark touched the fence. As I found no imminent threat of danger to the fence, I declined to make the orders sought.

51. It is common, particularly in more established suburbs, for the canopy of a mature tree growing on private land to spread into a neighbour's airspace. Such expansiveness is sometimes appreciated for the value it adds to the urban environment. At other times the intrusion is merely tolerated in the spirit of give and take between neighbours. Encroachment of this kind is not grounds for legal intervention unless it causes or threatens to cause material damage or occurs as a result of direct action.

52. In this case the argument over encroaching branches occurred in the context of broader conflict, which had suddenly flared between neighbours after many years of uneventful, if distant, co-existence. Other contentious issues have been resolved, either by the parties themselves or by determination of the tribunal. Hopefully this decision will go some way to assist the parties to resume the enjoyment of their respective properties in peace.

[1] Steve Griffiths, Visual Tree Assessment Report dated 16 June 2019 at 1.2

[2] Transcript of proceedings 22 January 2020 page 38

[3] Witness Statement of Olga Kusiak dated 30 October 2019 paragraph 7

[4] XD248 of 2019 Kusiak v Dallinger v Foley application lodged 4 March 2019

[5] Quia timet injunction- A quia timet injunction is to prevent apprehended or threatened wrongs.

[6] Submissions- Amended Response, filed by respondents14 November 2019 page 2

[7] Section 141 of the Civil Law (Wrongs) Act 2002 Defence to action for trespass to land:

It is a defence to an action for trespass to land if the defendant establishes that:

(a) the defendant does not claim any interest in the land; and

(b) the trespass was because of negligence or was not intentional; and

(c) the defendant made a reasonable offer to make amends to the plaintiff before the action was brought.

[8] Robson v Leischke [2008] NSWLEC 152 at [40]

[9] Applicant's witness statement 30 October 2019 at [7]

[12] Section 40 of the Limitation Act 1985. A Court may extend time in event of latent damage - not applicable/argued here.

[13] Walter v Selfe [1851] EngR 335; (1851) 4 De G & Sm 315 Knight Bruce V-C at 322

[14] Design Standards for Urban Infrastructure, Chapter 23 Plant Species for Urban Landscape Projects Table 23.4.17

[15] Transcript of proceedings 22 January 2020 page 49

[16] Transcript of proceedings 22 January 2020 page 50

[17] [2012] ACAT 30