Mannion v Raven

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – Roots damaging common boundary fence and paved path – apprehension of further damage – s 12(h) damage impacted by applicants’ omissions

Legislation Cited: Environmental Planning and Assessment Act 1979
Heritage Act 1977
Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 8, 9, 10, 12
State Environmental Planning Policy (Biodiversity and Conservation) 2021

Cases Cited: Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Yang v Scerri [2007] NSWLEC 592

Texts Cited: AS4373-2007, Pruning of amenity trees
AS4970-2009, Protection of trees on development sites
Inner West Development Control Plan 2023

Category: Principal judgment

Parties: Matthew Mannion (First Applicant)
Tracey Mannion (Second Applicant)
Nicole Raven (Respondent)

Representation: M Mannion (Self-represented) (First Applicant)
T Mannion (Self-represented) (Second Applicant)
N Raven (Self-represented) (Respondent)

File Number(s): 2024/321502

Publication restriction: Nil

Judgment

Background

1. COMMISSIONER: Matthew and Tracey Mannion, the applicants, own and occupy a long, narrow rectangular property in Leichhardt, that is approximately 6.1 metres (m) wide and 274m2 in area. After completing dwelling renovations in or around 2014, the applicants installed a single garage with a first-floor studio at the back of their land, under a Complying Development Certificate (CDC) registered with Leichhardt Municipal Council (Council) on 25 October 2014.

2. Nicole Raven, the respondent, owned and occupied the neighbouring south side property. The parties shared a boundary which extended from east at the street frontage to west at the rear. A mature Chinese Tallow tree (Triadica sebifera) (the tree) was growing in the respondent’s rear yard. Its trunk was about 600 millimetres (mm) from the common side boundary and about 5m from the rear boundary. The tree was about 9m tall, had a canopy spread averaging about 11m, and a trunk diameter at breast height (DBH) of about 0.48m. Ms Raven valued the tree highly.

3. On 7 November 2014, during excavations for the applicants’ garage, a shallow lateral root over 100mm in diameter was exposed in the Mannion’s back yard. Based on a photograph (photo) at page 8 of the Respondent’s Evidence, Alternative Orders and Proposed Solutions (Respondent’s Evidence), the root appeared to pass under the common boundary fence close to ground level and nearly perpendicular to the boundary. It extended fairly straight across the applicant’s land for about 1.5-1.8m with minimal tapering whilst descending at an angle of about 10 degrees below horizontal. The root then branched, with one relatively large secondary root apparently continuing along a shallow straight path similar to the primary root, while other secondary roots curved distinctly downward into deeper soil.

4. At Ms Raven’s request, Council’s Landscape Assessment Officer attended the site to inspect the root. The Landscape Assessment Officer subsequently advised the builder and the Principal Certifying Authority (PCA) how to modify the concrete garage foundations and floor to protect the roots and the garage, and such modifications were applied in the garage construction.

5. The applicants subsequently installed a paved path between the garage and the common boundary to access the back lane, along with a step and grated drain near the side garage door to accommodate the roots and prevent stormwater entering the garage.

6. In January 2024, the Mannion’s contacted Ms Raven and advised the tree was preventing gate closure and had damaged their paved side path, step, and drain, and a section of the common boundary fence. The applicants said the damage was ongoing and claimed the tree’s branches were also impacting the roof of their studio.

7. The parties exchanged various civil emails in attempting to resolve the tree-based conflict but, nonetheless, soon reached an impasse.

8. Consequently, on 15 April 2024, Mr and Mrs Mannion made an application, pursuant to s 7 of Pt 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), seeking removal and poisoning of the tree and repair of common boundary fence damage.

The onsite hearing

9. Both parties were self-represented at the onsite hearing of 4 November 2024, and Tree Management Officers from Inner West Council (amalgamated from Leichhardt, Marrickville, and Ashfield Councils) attended as observers. The tree was initially assessed from the respondent’s land, then damage to the path, drain and gates was inspected in the applicants’ property, prior to the parties’ oral submissions.

The applicants’ submissions

10. Summarised proposed orders:

11. Removal of the respondent’s Chinese Tallow tree, and poisoning of the roots.

12. Rectification of the damaged section of the common boundary fence caused by the respondent’s Chinese Tallow tree.

13. Mr and Mrs Mannion claimed they had followed Council’s advice to modify the foundations and floor of the garage and had been accommodating path damage from the tree for many years. This included grinding pavers and adjustments to allow closure of 2 gates. The applicants contended that a stormwater pipe crushed by root thickening and path uplift altering the flow direction of surface stormwater prevented further viable modification or repair in compensation of the damage.

14. The applicants said they needed another solution and had taken advice from an Australian Qualification Framework (AQF) level 5 arborist. In a report from Rennie Bros. Tree Surgeons, dated 1 August 2024 (Exhibit C), at 4.3, Mr Neil Rennie opined that “[c]utting the root is not viable due to the risk of compromising the tree’s stability, particularly since the offending root is within the Structural Root Zone (SRZ) calculated as a 2.7m radius as per the Australian Standard, AS4970-2009, Protection of trees on development sites”. The report’s summary, at 5.2, said, “Redesigning the step to further accommodate the tree root was explored and discounted due to the location of the root in relation to the studio door and stormwater drainage system.” 5.3 said, “If it is determined that the root cannot be accommodated, tree removal may be necessary. For the path to be re-done at the original levels, the tree root would need to be cut which is likely to compromise tree stability. This would require approval from the relevant authorities.”

15. The applicants contended that an allegation by the respondent, that they didn't take advice from Council or from an arborist’s report from the Ents Tree Consultancy (Ents report), was not relevant as that advice related to a 12-year-old development application (DA) that they had never used. The Mannion’s said they complied with the requirements of the CDC used for construction of the garage and studio.

16. The applicants disagreed with the respondent’s suggestion that conflict with the tree’s roots could have been avoided by installing their side path on the alternative, northern side of the garage due to the presence of the sewer line on the northern side and a fibro wall which prevented (the path) butting up against the garage.

17. Mr and Mrs Mannion contended the fence damage to the common boundary fence was more serious than claimed by Ms Raven. The applicants disagreed that the fence was strong and stable. To the contrary, they claimed the fence was leaning and becoming unsafe. The applicants said the repairs undertaken by the respondent were insufficient to solve the fence damage and the damage was likely to worsen. The applicants also contended the damage was the same root uplift that similarly damaged the previous fence, which had required the installation of the current fence in 2016.

18. The applicants claimed that overhanging branches from the tree were likely to damage their studio and were obstructing a streetlight in the adjacent lane.

19. In summary, Mr and Mrs Mannion disagreed with the respondent that the damage to the path and boundary fence was minor, they claimed the tree was too big for the location and that the respondent could have been dealt with the tree issues earlier, before the damaged became so advanced.

The respondent’s submissions

18. Ms Raven contended the current damage to the path was minor damage that could easily be rectified and accommodated using methods that would also protect the tree’s roots. Ms Raven claimed engagement of s 10(2) of the Trees Act required the applicants’ damage to be significant and not trivial, thus s 10(2) was not satisfied and the application should be dismissed.

19. Ms Raven expressed frustration that the applicants had built the garage and studio under the CDC rather than a DA, under which the development was initially planned, as the DA would have specified conditions of consent to protect the tree. There were no specific tree protection requirements under the CDC, other than the foundation modifications requested informally by Council’s Landscape Assessment Officer.

20. The respondent contended the applicants did not give due consideration to advice from the 2012 Ents report, which allegedly provided easily applied design modifications based on AS4970-2009, Protection of trees on development sites (AS4970-2009). Ms Raven claimed that design modifications such as permeable, flexible path materials rather than rigid paving, and or avoiding installing the path within the tree’s SRZ by moving the path to the northern side of the garage would have prevented the applicants’ current conflict with the tree’s roots.

21. Ms Raven claimed the applicants’, “failure to consider the Standard led to the gate malfunction and damage to the path and drainage necessitating future corrective works”. Further, the respondent contended the applicants were still required to comply with AS4970-2009, regardless of building the garage under the CDC.

22. Regarding branches allegedly damaging or likely to damage the applicants’ studio, Ms Raven said she had previously agreed to the applicants pruning the tree, at their expense, by up to 10% of the canopy volume as permitted without permission under the Inner West Development Control Plan 2023 (DCP) but the applicants had chosen not to prune the tree. Ms Raven denied the tree’s branches were obstructing a streetlight in the adjacent lane.

23. Ms Raven detailed the tree’s contributions to privacy and amenity, to landscaping, garden design, the local ecosystem and biodiversity, and protection from sun and wind.

Jurisdictional requirements

24. 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.

25. Section 7 of the Trees Act is satisfied as both parties own their respective adjoining properties and the Mannion’s claimed that Ms Raven’s tree is causing damage.

26. Under s 8(1) of the Trees Act, an applicant for an order under this Part 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, and (b) any relevant authority that would, in accordance with section 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.

27. Section 8(1) of the Trees Act is satisfied as the applicants provided evidence of service of the application and the orders sought on the respondents (s 8(1)(a)), and Council (s 8(1)(b)), and the date determined for the final hearing was served with the required notice of 21 days.

28. Section 9 of the Trees Act provides jurisdiction for the Court to make a wide range of orders:

(1) The Court may make such orders as it thinks fit to remedy, restrain or prevent damage to property, or to prevent injury to any person, as a consequence of the tree the subject of the application concerned.

(2) Without limiting the powers of the Court to make orders under subsection (1), an order made under that subsection may:

(a) require the taking of specified action to remedy damage to property, or

(b) require the taking of specified action to restrain or prevent damage or, if damage has already occurred, further damage, to property, or

(c) require the taking of specified action to prevent injury to any person, or

(d) require the making of an application to obtain any consent or other authorisation referred to in section 6 (1) (a), or

(e) authorise the applicant concerned to take specified action to remedy, restrain or prevent damage or (if damage has already occurred) further damage to property, or

(f) authorise the applicant concerned to take specified action to prevent injury to any person, or

(g) authorise land to be entered for the purposes of carrying out an order under this section (including for the purposes of obtaining quotations for the carrying out of work on the land), or

(h) require the payment of costs associated with carrying out an order under this section, or

(i) require the payment of compensation for damage to property, or

(j) require the replacement of a tree that the Court orders to be removed and for the new tree to be maintained to a mature growth.

29. Section 10 of the Trees Act details matters of which Court must be satisfied before making an order:

(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 tree is situated, and

(b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 8.

(2) The Court must not make an order under this Part unless it is 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.

30. Section 12 details matters to be considered by Court before determining an application made under Pt 2 of the Trees Act:

(a) the location of the tree concerned in relation to the boundary of the land on which the tree is situated and any premises,

(b) whether interference with the tree would, in the absence of section 6 (3), require any consent or other authorisation under the Environmental Planning and Assessment Act 1979 or the Heritage Act 1977 and, if so, whether any such consent or authorisation has been obtained,

(b1) whether interference with the trees would, in the absence of section 25 (t) (Legislative exclusions) of the Native Vegetation Act 2003, require approval under that Act,

(b2) the impact any pruning (including the maintenance of the tree at a certain height, width or shape) would have on the tree,

(b3) any contribution of the tree to privacy, landscaping, garden design, heritage values or protection from the sun, wind, noise, smells or smoke or the amenity of the land on which it is situated,

(c) whether the tree has any historical, cultural, social or scientific value,

(d) any contribution of the tree to the local ecosystem and biodiversity,

(e) any contribution of the tree to the natural landscape and scenic value of the land on which it is situated or the locality concerned,

(f) the intrinsic value of the tree to public amenity,

(g) any impact of the tree on soil stability, the water table or other natural features of the land or locality concerned,

(h) if the applicant alleges that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property:

(i) anything, other than the tree, that has contributed, or is contributing, to any such damage or likelihood of damage, including any act or omission by the applicant and the impact of any trees owned by the applicant, and

(ii) any steps taken by the applicant or the owner of the land on which the tree is situated to prevent or rectify any such damage,

(i) if the applicant alleges that the tree concerned is likely to cause injury to any person:

(i) anything, other than the tree, that has contributed, or is contributing, to any such likelihood, including any act or omission by the applicant and the impact of any trees owned by the applicant, and

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

(j) such other matters as the Court considers relevant in the circumstances of the case.

Findings

31. Section 10 stipulates limits on the Court’s ability to make orders under the Trees Act.

Section 10(1) - reasonable effort to reach agreement

32. The application included copies of emails since January 2024, when Mr and Mrs Mannion initially approached the respondent about removing the tree. The applicants advised Ms Raven of the tree’s rapid growth over recent years, and consequent damage that the tree’s thickening roots were causing to the applicants’ path, drain, and gate, and to the common boundary fence. The applicants noted problems resulting from the tree’s overhanging canopy. Ms Raven’s reply authorised pruning the tree’s canopy by up to 10%, at the applicants’ expense, in accordance with the maximum pruning allowed annually without Council permission under the DCP.

33. Ms Raven claimed the fence was solid and in good condition, notwithstanding the addition of an extra paling to compensate for uplift. Ms Raven stressed the prior advice from Inner West Council’s Landscape Assessment Officer that Council permission to sever large roots was subject to the endorsement of an AQF level 5 arborist and lodgement and approval of a Development Application (DA). In subsequent emails, the parties progressively departed from the likelihood of resolution. Nonetheless, I was satisfied the applicants have made a reasonable effort to reach agreement with the owner of the land on which the tree is situated. As a consequence, s 10(1)(a) of the Trees Act was engaged. Section 10(1)(b) was also engaged by the prior satisfaction of s 8(1) of the Trees Act.

Section 10(2) – damage or risk of injury caused by the tree

34. The key test is at s 10(2) of the Trees Act:

(2) The Court must not make an order under this Part unless it is 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.

35. As required by Council’s Landscape Assessment Officer, Mr and Mrs Mannion modified the concrete garage foundations to bridge over the large shallow root from the respondent’s tree and similarly attempted to accommodate the root by raising the adjacent path and installing a step.

36. The damage was most pronounced on the fence side, closest to the tree, where the path and step was uplifted and tilted by about 100mm. The drain grate below the step had lifted similarly on the common boundary side. The path had lifted as a unit, such that the damage extended to the gate at the rear lane, about 5m from the root. The boundary fence was lifted and levered apart along the same line from the tree, which was the known path of the root. This was unchallenged by the respondent.

37. As the root’s location had been established and there were no other substantial trees growing nearby, I was satisfied of the nexus between damage to the path and common boundary fence, and the tree’s roots. Although Ms Raven contended that the applicants’ damage was minor or trivial and thus did not engage the jurisdiction, I was not satisfied this was the case. The damage to the path and paving was not severe, but nor was it minor and irrelevant. It clearly impacted the applicants’ amenity and use of their land. Nor was I satisfied that the damage to the boundary fence had been arrested or that the boundary fence had been adequately repaired.

38. Significantly, the Court's decision in Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285 indicates that even relatively minor damage engages the Court's jurisdiction. Consequently, s 10(2)(a) of the Trees Act is engaged.

39. Additionally, the jurisdiction of the Trees Act covers damage likely to be caused by a tree in the near future. In Yang v Scerri [2007] NSWLEC 592; at [14], the near future is defined, as a rule of thumb, to be a period of one year. Based on the close proximity of the boundary fence and the path to the tree, and the considerable vigour of the tree, I am satisfied that further uplift and damage to the boundary fence and the path is likely in the next 12 months. Therefore, s 10(2)(a) of the Trees Act is again engaged.

40. As s 10 of the Trees Act is satisfied by damage to the fence, path, gate, and drain, s 9 enables the Court to make any such orders it thinks fit to remedy, restrain or prevent damage to such property, or to prevent injury to any person. In order to determine, what, if any, orders should be made, the Court must consider the matters in s 12 of the Trees Act.

Discretionary matters – s 12

41. The tree is located about 600 mm from the common side boundary, about 1.5m from the applicants’ garage, and about 5m from the rear boundary (s 12(a)).

42. Section 12(b) considers whether interference with the tree would, in the absence of section 6 (3), require any consent or other authorisation under the Environmental Planning and Assessment Act 1979 (EP&A Act) or the Heritage Act 1977 and, if so, whether any such consent or authorisation has been obtained. Under the DCP, Council permission is required for removal of the tree or for pruning more than 10% of the tree’s canopy volume. The DCP is enacted under the State Environmental Planning Policy (Biodiversity and Conservation) 2021 and reflects its requirements. The jurisdiction of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 arises from the Environmental Planning and Assessment Act 1979 (EP&A Act). Therefore, the tree is subject to the jurisdiction of the EP&A Act.

43. Section 12(b2) of the Trees Act considers the impact any pruning would have on the tree. Though their thin heart shaped leaves may give Chinese Tallow trees a delicate appearance, it is a hardy, resilient tree species. In the past, Chinese Tallow trees were commonly used as street trees in Sydney’s inner west due to their durability and because their size and form allowed relatively easy management under electricity wires.

44. Figure’s 9 and 10 in the Respondent’s Evidence showed photos of the tree while it was semi-deciduous in mid-September. Regardless that damage to the studio was not evident, Ms Raven’s photos did not provide a true reflection of the density of the tree’s canopy. The lowest branches extending over the roof of the studio would probably have hung much lower when re-foliated. Therefore, I was satisfied that pruning lower branches currently contacting the studio roof or likely to contact in the near future, was appropriate and reasonable. However, I was not satisfied pruning was required to clear obstruction of the streetlight.

45. Though Ms Raven claimed the applicants had damaged the tree, it appeared to be healthy and vigorous and was showing no obvious signs of residual root damage, even if some root damage had accompanied garage and or path construction. Therefore, the tree was likely to tolerate pruning by up to 10% of its canopy volume with minimal stress or negative impact on health or longevity.

46. Pruning to remove higher branches overhanging the studio would be excessive, however. Such pruning would likely negatively impact both the tree’s health and aesthetic merits and would constitute considerably more than 10% of the tree’s canopy.

47. Under the Trees Act there is no remedy for encroachment of branches beyond boundaries when such branches are not causing damage or injury, nor likely to cause near future damage, or injury in the foreseeable future. The ability of branches (and roots) to extend beyond boundaries, relatively unimpeded, is an implicit requirement for the healthy survival of trees in urban areas, to the benefit of the wider community.

48. As the tree was growing vigorously, the pruning will likely need to be repeated but the pruning required was fairly minor and straightforward and should be relatively inexpensive. There was no need to prune the tree on the respondent’s side to make the canopy even or symmetrical. Given that leaves provide sugars for all tree functions, the more foliage retention, the better for tree health.

49. In an email dated 22 January 2024, Ms Raven had authorised the applicants to undertake pruning at the applicants’ expense, provided the pruning complied with AS4373-2007, Pruning of amenity trees. There was no requirement for the respondent to necessarily pay for the pruning but by doing so, the respondent would maintain control over the quality and extent of the pruning. Once branches are removed, they cannot be reattached.

50. While the tree’s environmental contributions were not acknowledged at questions 25-30 of the application, the tree contributed to privacy, landscaping, garden design, the amenity of the land on which it is located, and protection from the sun and wind, for both parties (s 12 (b3)).

51. In Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152, Preston CJ provided commentary on environmental considerations under s 12 of the Trees Act; at [203]:

“The matters concerning the values of the tree and its environmental contribution are notable additions to the matters recommended by the Law Reform Commission in its report. The Law Reform Commission report was relatively quiet about environmental factors, in contrast to the earlier discussion paper which had emphasised the environmental values of trees. The legislature, however, took a different view and required the Court to consider environmental factors. This was a point specifically made in the second reading speech:

“The provisions that require the Court to consider environmental factors prior to making an order are in recognition of the importance of urban trees as an environmental asset. Urban trees play a proven environmental role in every urban society. They provide energy savings through lower cooling costs, reduce stormwater run-off, help reduce salinity and provide aesthetic and social benefits associated with being in proximity to nature. The bill therefore recognises the environmental contribution of urban trees as a factor that the court must take into consideration in determining applications”.”

52. Though the tree was exotic and unlikely to be an important food source for fauna, it was fairly large and likely to provide habitat and protection. Therefore, the tree contributed to the local ecosystem and biodiversity (s 12(d)).

53. Regardless that it was located in the respondent’s back yard, because the tree was relatively large, and land parcels typical of the area were quite small, the tree’s dense canopy was visible to many nearby residents. As Chinese Tallow trees are one of few deciduous trees renowned for producing outstanding autumn colour in the warm temperate climate of inner Sydney, the tree provided significant intrinsic public amenity (s 12 (f)).

54. Under s 12(h), if the applicants allege that the tree concerned has caused, is causing, or is likely in the near future to cause damage to the applicants’ property, the Court is required to consider:

(a) anything, other than the tree, that has contributed, or is contributing” to any such damage or likelihood of damage, including any act or omission by the applicant and the impact of any trees owned by the applicant, and (b) any steps taken by the applicants or the owner of the land on which the tree is situated to prevent such damage.

55. Acts or omissions by Mr and Mrs Manion significantly contributed to damage to the path and associated path infrastructure.

56. The applicants exercised their legal right to undertake the construction of the garage under a CDC.

57. A requirement of the CDC was a clearance of at least 900mm between the garage and both side boundaries, thus providing the option of locating the side path to the rear lane either north or south of the garage. The applicants chose to position the path on the southern side, within 600mm of the tree base, well within the tree’s CRZ.

58. The applicants then selected large rigid pavers, which were laid on a base of concrete, or sand and or road-base mixed with sufficient cement to result in the path acting as a unitary sheet over all or most of its length. The rigidity was exacerbated by mortar between the pavers, as shown in Photo 9 of the report. A rigid step was installed to bridge over the root, but insufficient provision was allowed for root thickening at such close proximity to the tree.

59. The rigid components and methodology employed for the path were the antithesis of what was required to provide a durable path in this location, in spite of the applicants having the benefit of advice in the Ents report, which specifically addressed these considerations. Given the size of the root and the vigour of the tree, it was reasonably predictable that the root would impact a path installed at such close proximity to the tree. When this occurred, the entire path was lifted as a unit, with damage referred all the way to the gate at the street frontage, and to the drain which appeared unnecessarily connected to the base of the step.

60. Had the applicants used flexible path materials, as recommended in the Ents report, infrastructure damage would probably have been confined to the area close to the boundary immediately around the root. The isolated area around the root could have been readily repaired with a flexible material like bitumen to eliminate trip hazards and provide a safe surface suitable for prams or bikes etc. Throughout the Inner West, there are many conspicuous examples of footpaths and park paths lifted by roots, that have been repaired by such means. It has been a standard practice for decades.

61. Had the bridge over the roots been constructed with flexible materials and isolated up to about 300mm west of the root, beyond this area about 300mm from the root, the majority of the path extending about 5m to the back gate would have likely been unaffected by the root thickening, even if the existing path materials and methodology had been employed.

62. Contrary to Ms Raven’s contention, the Mannion’s were not required to consider AS4970-2009, nor implement the recommendations of the Ents report. In itself, compliance with AS4970-2009 is not a mandatory requirement. Application of part or all of AS4970-2009 is only mandatory when applied as a condition of development consent (or a similar requirement). However, the applicants already had the benefit of the Ents report, and the ‘Response from the Referral Panel’ who had assessed the original garage DA on 29 May 2012. The Referral Panel recommended moving the garage to the northern boundary in order to maximise the distance between the garage and path, and the tree roots. While this may not have been possible under the CDC, it reinforced the desirability of having structures as far from the tree as possible.

63. Therefore, regardless of no legal requirement to implement such useful guidance, the applicants’ decision to ignore or reject such readily available advice was unreasonable. Considering s 12(h) of the Trees Act, responsibility for the consequences of the omission to do so must rest with the applicants.

64. Ms Raven noted two alternative solutions for the applicants’ path. Firstly, to relocate the path to the 900mm wide gap on the northern side of the garage, or secondly, to use flexible, permeable path materials in the existing location consistent with advice in the Ents report, and thus AS4970-2009.

65. With respect to Mr Rennie’s comment in the report’s summary, at 5.2, I disagree that, “the location of the root in relation to the studio door and stormwater drainage system” prevented “redesigning the step to further accommodate the tree root”.

66. While the path had been raised by about 100mm on the boundary side, it remained near its original level against the side garage wall. Photo’s 5 and 6 of the report showed the step riser and the primary path damage was west of and clear of the garage side door. Photo 7 indicated the uplift of the drain was largely caused by the drain’s connection to the base of the step, as a unit. The area east of the step riser had very minor damage. In Photo 9, mortar along the edge of pavers was visible, displaying that pavers were previously joined together, as a unit. If, however, the pavers were separated and laid on a bed of sand, rather than adhered to an inflexible base, pavers that had restricted movement of an internal gate after only slight raising, could be lifted occasionally if necessary and re-laid. It is common for pavers to be laid only on a sand base. Considering the attributes of the tree, such a simple accommodation for root growth is reasonable and one that would be expected by Council. A sand base would also allow more water infiltration, thus reducing drainage concerns arising from stormwater flowing across paved surfaces.

67. Additionally, I was not persuaded by the applicants’ argument as to why the path could not have been located on the northern side of garage, notwithstanding that some minor adaptation may have been required.

Conclusions

68. I was satisfied that roots of the tree were a cause of damage to the applicants’ paved path and associated infrastructure. In the absence of intervention, such roots were likely to cause further damage in the near future. The tree’s thickening roots had also damaged the common boundary fence, and this damage was also likely to worsen. Therefore, s 10(2) of the Trees Act is engaged.

69. Given the known location of the roots and the required garage foundation modifications that had, so far, successfully protected the garage from damage, upon locating the path even closer to the tree’s trunk, it was predictable that the applicants would face a similar or greater conflict with the roots.

70. As addressed at s 12(h), the applicants’ subsequent installation of an inflexible path south of the garage, bound together as a single unit, in abject contradiction to the recommendations of their own arborist report from Ents Tree Consultancy, was primarily responsible for the nature and extent of the damage. In other words, the applicants’ omissions significantly contributed to the path and infrastructure damage. Had Mr and Mrs Mannion considered and employed such advice, I am satisfied the impact of damage caused by predictable root thickening would have been isolated, and relatively easy to rectify and accommodate.

71. Notwithstanding that the applicants did not propose the Court make orders for compensation for the path and infrastructure damage, the applicants’ omission to employ readily available arboricultural advice consistent with AS 4979-2009, cast responsibility for such damage onto the applicants.

72. I was not persuaded by Mr Rennie’s opinion that the location of roots relative to the garage/ studio door and a stormwater drainage system prevented redesign to effectively accommodate roots. Various options noted above will likely require adaptation of the applicants’ current vision, but I am not satisfied that the application of such viable options is difficult, nor unreasonable. As the tree provided myriad significant benefits, such adaptation is warranted.

73. I do, however, accept Mr Rennie’s opinion that severing the primary root to clear it from the path would probably severely negatively impact tree health and cause genuine risk of instability. Therefore, severing the root is not a viable option. Nonetheless, the path and infrastructure damage does not provide reasonable justification for tree removal.

74. I was not persuaded that the damage to the boundary fence had been arrested, nor that the boundary fence had been adequately repaired. It was obvious that the existing condition of a boundary fence that was less than 10 years old, could not be considered reasonable. The repairs undertaken by the respondent were a mere ‘band-aid’ solution which were inadequate to rectify damage by the roots or preclude additional damage.

75. Repairs were required to eliminate the fence’s distinct rise up over the root, so that the top of the fence, and the top and bottom rails, formed a flat line along the entire length of the fence, consistent with the average slope of the land. Based on Photo 10 of the report and my site inspection, it appeared that the fence post closest to the eastern side of the applicants’ back path drain needed to be relocated, about 600mm further east, so the replacement post was not impacted by root thickening. Additionally, the base of palings and perhaps the bottom rail required cutting and modification to prevent current and mid-term future root contact. This treatment will require ongoing monitoring. Should contact recur or become imminent, the respondent shall repeat this treatment.

76. As the extent and location of recent root growth and thus root clearance of garage/ studio foundations is unknown, the garage foundations and floor should be regularly monitored.

Orders

77. The Court orders that:

78. The respondent shall engage and pay a fencing contractor or builder with all appropriate insurances (the contractor), to relocate the common boundary fence post close to and east of the applicants’ back path drain, about 600mm further east so the post is not impacted by the tree’s root thickening. The contractor shall cut and modify palings, and the bottom rail as required, to clear the fence from contact with roots of the tree and provide a gap of at least 75mm between the fence and the tree’s roots. The contractor shall repair the fence such that the top of the fence, and the top and bottom rails, each form a flat line along the entire length of the fence, consistent with the average slope of the land. The contractor shall ensure the fence is sturdy, vertical, and aligned along the boundary. The works shall be completed within 45 days of the date of these orders.

79. The applicants shall provide all reasonable access for the fencing works, subject to at least 72 hours emailed notice of the date and approximate start time of the works.

80. The fencing works shall comply with relevant Work Health and Safety requirements and shall be undertaken during normal daytime working hours.

J Douglas

Acting Commissioner of the Court

**********