Necakovski v Stimson

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – damage from branches impacting common boundary fence and shed – apprehension of further damage

Legislation Cited: Dividing Fences Act 1991 (NSW), s 7(1)
Trees (Disputes between Neighbours) Act 2006 (NSW), Pt 2 ss 7, 8, 9, 10, 12

Cases Cited: Barker v Kyriakides [2007] NSWLEC 292
Black v Johnson (No 2) [2007] NSWLEC 513
Gardiner v Bisley [2021] NSWLEC 1176
McPherson v Lake [2017] NSWLEC 1081
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Stevens v Russell [2016] NSWLEC 1233
Yang v Scerri [2007] NSWLEC 592

Texts Cited: AS4373:2007 Pruning of amenity trees
Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016

Category: Principal judgment

Parties: Suzanne Necakovski (Applicant)
Ian Caroll Stimson (First Respondent)
Robyn Michelle Stimson (Second Respondent)

Representation: S Necakovski (Self-represented) (Applicant)
I Stimson (Self-represented) (First Respondent)
R Stimson (Self-represented) (Second Respondent)

File Number(s): 25/353619

Publication restriction: Nil

JUDGMENT

Background

1. COMMISSIONER: In a quiet street in Warilla, in the Illawarra region, Ms Necakovski (the applicant) shares a side boundary with Mr and Mrs Stimson (the respondents), who occupied their property more than 46 years ago. The common boundary extends from near east at the street to around west at the rear, and the applicant’s property is south of the respondents’ land.

2. A Celtis sinensis (Tree 1) growing in the Stimson’s back corner was overhanging the applicant’s inground pool, the concrete and Pebblecrete surrounds of which extended to both the common boundary and the rear boundary. Ms Necakovski claimed Tree 1 was dangerous and was damaging her pool.

3. About 15 metres (m) east of Tree 1, a multi-trunk Camphor laurel tree (Tree 2), growing against the common boundary Colorbond fence, was allegedly damaging the fence and applicant’s adjacent pool shed.

4. The Stimson’s acknowledged refusing Ms Necakovski’s repeated requests to remove the trees but claimed to have permitted Ms Necakovski to prune overhanging branches and throw them into their yard for removal. The Stimson’s valued the trees for privacy and bird song.

5. Although she pruned both trees, the applicant continued to seek the trees’ removal. Consequently, Ms Necakovski made an application, pursuant to s 7 of Pt 2 of the Trees (Disputes between Neighbours) Act 2006 (NSW) (the Trees Act).

The hearing

6. The parties were self-represented at the onsite hearing. Both trees were easily accessed in the Stimson’s backyard, and from the raised level of the applicant’s pool surrounds, all visible branch junctions of Tree 1 appeared structurally sound. A section of common boundary fence was also inspected near Tree 1.

The applicant’s submissions

7. For Tree 1, Ms Necakovski contended that:

1. The respondents planted the tree (oral submission).

2. Branches overhanging the pool and in firm contact with the top of the boundary fence were forcing the fence out of alignment.

3. Fallen leaves that lodged in the narrow gap between the applicant’s pool surrounds and the fence were preventing drainage of water and causing the fence to rust.

4. Leaves in the pool clogged up the filter. A man from ‘Swimart Shellharbour’ who measured phosphate levels as ‘high range’ (4.308 ppm) advised this was caused by leaves which are toxic and poisonous for humans. Extra pool chemicals were required to control increased growth of algae due to high phosphates, at extra cost. The tree attracted birds which dropped faeces in and around the pool.

5. The trees caused cracking and lifting of Pebblecrete and concrete at both ends of the pool.

6. Overhanging branches had broken and fallen into the pool during high winds. The tree is dangerous.

8. For Tree 2, Ms Necakovski contended that:

1. The tree is growing on the fence line and pushing against the fence, which in turn is pushing the shed out of alignment.

2. The gas pipes and pool filter are being damaged. The gas for the pool heating was turned off within the last four years (oral submission) because the ‘gas man’ warned of a risk of explosion due to tree roots in the applicant’s gas pipes.

3. Overhanging branches were causing the shed roof to rust.

4. A plumber had used a plumbing eel to clear “Camphor laurel roots” from the applicant’s sewer pipes, once or twice, about two years ago and about four years ago. On one of these occasions, the plumber said, “those two trees are causing this problem” …“Ask your neighbour to cut them down”.

5. Branches had broken and fallen into the back yard during high winds, which is a danger.

9. Ms Necakovski proposed the following (summarised) orders:

10. The respondents shall remove the two trees and grind the stumps.

11. The respondents shall engage and pay a licenced fencer to replace fence sections damaged by the trees.

12. The respondents shall reimburse the applicant for the filing fees and other costs associated with the Court application.

The respondents’ case

10. The respondents claimed the fence was kinked towards their property during the original concreting around the applicant’s pool and referred to photograph 1 of their undated response (Exhibit 1) to substantiate this claim. The Stimson’s submitted that, ordinarily, force from Tree 1’s roots would be expected to lever the fence towards the applicant’s land. However, the fence was bent towards the respondents’ land. They argued that, therefore, the kink in the fence was not caused by Tree 1.

11. The Stimson’s disputed Ms Necakovski’s claim that corrosion of the fence was caused by poor drainage from accumulated leaves. The Stimson’s contended that fence sections against the applicant’s pool corroded because of salts from the pool and because the bottom 0.24m (approximately) of the fence was in direct contact with the side of the concrete pool surrounds.

12. The respondents submitted that about five years ago, Ms Necakovski advised she had a spare panel that could be used for the fence, but it had not happened. Photographs 2 and 3 of Exhibit 1 showed the fence from both sides while photographs 4 - 7 showed corrosion, which was particularly pronounced on the bottom rail of the fence.

13. The Stimson’s claimed Ms Necakovski stopped the gas for the pool heater soon after her occupation in or around 2017 because it was expensive to run, rather than relatively recently because of the risk of an explosion, as Ms Necakovski contended. The Stimson’s claimed that Ms Necakovski had not advised that tree roots were an issue prior to the application.

14. On three occasions after July 2025, Ms Necakovski asked Mr Stimson to remove Tree 1. Upon the third request, Mr Stimson allegedly said, “just cut down what is hanging over your side of the fence for now and put it in our yard and we will get rid of the waste”. Ms Necakovski deposited branches cut from Tree 1 onto the respondents’ back lawn, which Mrs Stimson claimed was “the first time we were aware it was a problem”. Branches cut from Tree 2 were also dropped onto the respondents’ back lawn for disposal by the Stimson’s.

15. The respondents said they didn’t plant either tree, and that Ms Necakovski had not complained about Tree 2 until recently. Mrs Stimson noted that Tree 2, “has come up from underneath the fence about 18 months or so ago and we left it there to give us a bit of privacy”, but added that “[w]e did cut Tree 2 down about 5 years ago but it has regrown”.

16. Mrs Stimson disputed that branches from Tree 2 “had broken and fallen into the back yard during high winds.” She contended that “no branches have ever come off (Tree 2”) unless they have been cut down”.

17. The Stimson’s rejected the applicant’s proposal that they pay for a new pool shed “considering the shed is at least 13 years old and (Tree 2) is coming from under the fence”. The respondents contended that the pool shed was required to be 1m from the boundary rather than against the fence, where it was currently located.

18. Overall, as the trees contributed to privacy and protection from the sun and wind, and enhanced amenity by attracting birds, the respondents opposed the proposed tree removals. Mrs Stimson said, “Tree 2 does get a lot of birds nesting in it” and she enjoys “listening to them when I sit out on the back deck”. The Stimson’s said they needed more time to address Ms Necakovski’s demands, considering major health problems impacting both respondents.

Jurisdictional framework

19. Applications under of Pt 2 of the Trees Act are assessed under the following framework:

7 Application to Court by affected land owner

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.

8 Notice of application for order to be given to owners of affected land

(1) An applicant for an order under this Part must give notice of the lodging of the application and the terms of any order sought at least 21 days before a hearing in relation to the application 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.

…

9 Jurisdiction to make 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.

…

10 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.

…

12 Matters to be considered by Court

Before determining an application made under this Part, the Court is to consider the following matters:

(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

Reasonable effort to reach agreement

20. At question 32 of the Tree Dispute Claim Details (Exhibit B), Ms Necakovski noted several discussions with Mr Stimson “over the years, and recently every fortnight”. The respondents confirmed three requests for tree removal after July 2025, after which pruning was conducted as an interim compromise. I am satisfied that this consistent direct communication alerted the respondents to the risk of damage and injury that Ms Necakovski perceived from the trees, regardless of whether the respondents agreed.

21. Consequently, I am satisfied that the applicant has made a reasonable effort to reach agreement, and that s 10(1)(a) of the Trees Act is engaged. Robson v Leischke (2008) 72 NSWLR 98; NSWLEC 152 includes extensive commentary about the reasonable effort to reach agreement. At [194]–[195], Preston CJ 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.”

22. Section 10(1)(b) of the Trees Act is also engaged as Ms Necakovski provided evidence of service of the application and orders to Mr and Mrs Stimson and Shellharbour Council, as required at s 8(1) of the Trees Act. The Court provided the required 21 days’ notice for the hearing.

23. I accept the respondents’ contention that they did not plant either tree. It is very likely that the trees germinated from seed probably dropped by birds. Both species are renowned weeds that produce plentiful viable seed that is spread by birds, small animals, wind, and water, that germinates readily and grows rapidly into trees that are tolerant of harsh environmental conditions and minor to moderate root damage. Neither species is ordinarily available for purchase from the nursery industry. The principal jurisdictional tests are next, at s 10(2) of the Trees Act.

Did Tree 1 cause damage?

24. While the Stimson’s were unsure of the age of Tree 1, they claimed it was well established before the pool was installed by the property’s prior owner, 15-20 years ago. The boundary fence was said to be more than 25 years old.

25. Tree 1 showed the broadening canopy typical of its age class but appeared smaller than usual for this species. It was growing close to both the common boundary and back fence and displayed a particularly sound structure in terms of branch arrangement and attachment.

26. The applicant’s pool was parallel to the boundary and about 9-10m long. To accommodate the land’s gentle slope from south to north, the surface of the pool surrounds was about 0.25-0.3m higher on the applicant’s side of the common boundary than on the Stimson’s side of the fence. Thus, the concrete edge of the pool surrounds positioned against the fence doubled as a small retaining wall.

27. Two co-dominant branches that forked from an ascending branch low on the trunk and extended well over the applicant’s pool showed heavy wounding from hard contact with the capping of the metal fence. Prior to the hearing, the applicant had removed the long branches, but the two stubs remained hard against the fence. Considering the strong tension apparently impacting the branches, the fence showed surprisingly little damage or displacement from vertical.

28. Photograph 1 of Exhibit 1 showed a short fence section kinked away from the pool towards the respondents’ land, but this was not caused by Tree 1. The concrete below the kink in the fence had apparently bulged through inadequate formwork during the original concrete pour and forced a short section of fence beyond the boundary.

29. I was satisfied that the cumulative impact of salts in the pool water was the probable primary cause of corrosion along the bottom of the fence. Poor drainage from leaf accumulation may have contributed to damage, but, if so, only marginally. Consequently, I favoured the respondent’s contentions as I am not persuaded that Tree 1 has caused or is causing the claimed damage to the fence.

30. Unsurprisingly, many applications involve tree branches from neighbouring properties overhanging pools and the annoyance and inconvenience pool owners experience maintaining leaves and other debris that blows or drops in and around pools. While the extent of maintenance may be reduced by occasional judicious pruning of overhanging branches, the applicant’s claims regarding excessive leaf drop are addressed with consideration of the Tree Dispute Principle established in Barker v Kyriakides [2007] NSWLEC 292 (Barker*)**,* at [20]:

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

31. The cost of chemicals for maintenance of pools under tree canopies is considered in Gardiner v Bisley [2021] NSWLEC 1176 (Gardiner), at [71]:

“Additionally, regardless of whether tree debris drops into the applicant’s pool, resulting in more cleaning and addition of chemical or other ameliorants to stabilise water requirements than may be the case in their absence, upon purchasing the property about five years ago, it should have been obvious to the applicant that the tree was large and well established, that its canopy extended over the pool, and that such additional maintenance would be required. In such a scenario, it is unreasonable to expect that the tree be removed or severely pruned, to eliminate or reduce this debris, when the tree long predated the pool’s installation.”

32. In the context of this site, where the tree was already growing close to the existing pool when Ms Necakovski inspected and purchased the property, as an element of prudent due diligence, there is an onus on an intending property owner to consider the implications of an existing tree.

33. Therefore, none of the applicant’s submissions with respect to leaves falling into the pool, or restricting drainage against the fence, or clogging the filter, invoke the jurisdiction of the Trees Act. Rather, these elements are all resolved and dismissed under the expectation of reasonable maintenance arising from the Tree Dispute Principle in Barker at [20]; ‘additional maintenance’ under the rationale in Gardiner at [71]; and ‘poor design’, due to the foreseeability of such outcomes, as considered in the Tree Dispute Principle in Black v Johnson (No 2) [2007] NSWLEC 51 (Black*)*, at [15].

34. Further, there are no orders available under the Trees Act to prevent or remedy branches growing beyond boundaries if said branches are not causing damage or are not likely to cause near future damage or risk of injury to persons. This includes the applicant’s claims of faeces dropped in and around the pool by birds that frequent the trees. In Robson, at [189], his Honour says:

“Finally, the specification of the tree as being a cause of damage to property or injury to any person excludes damage or injury directly caused by animals, such as mammals, birds, reptiles or insects, which may be attracted to a tree or use it for habitat. Thus, although a tree when it flowers might attract bees seeking nectar in the flowers, and the presence of the bees might increase the risk of persons in the vicinity being stung by bees, it is not the tree itself that is likely to cause such injury of bee sting to any person, but rather it is the bees: see Immarrata v Mourikis [2007] NSWLEC 601 (12 September 2007) (Bly C, Fakes AC). Similarly, the fact that an animal which has caused, is causing or is likely to cause in the near future damage to property on adjoining land, uses a tree as habitat, such as for feeding, roosting or nesting, does not result in the tree itself having caused, causing or being likely to cause in the near future damage to the applicant’s property: Dooley v Newell [2007] NSWLEC 715 (23 October 2007) (Moore C, Thyer AC) at [22]-[23].”

35. Ms Necakovski claimed the trees had caused cracks and uplift of the surrounds at each end of the pool. At the western end, the crack in the Pebblecrete was about 5m from Tree 1 and was perpendicular to the end of the pool. There was no obvious relationship between Tree 1 and the crack. In Stevens v Russell [2016] NSWLEC 1233 (Stevens*)*, at [40], Commissioner Fakes noted:

“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.”

36. Ms Necakovski undertook no excavation and provided no evidence of a causal link between Tree 1 and the crack. As noted by Commissioner Fakes in Stevens, “the mere presence or proximity of a tree is (not sufficient) to conclude that the tree is the cause of the damage”. Overall, as none of the damage claims for Tree 1 were substantiated by the applicant or the visual evidence, there is no reasonable justification for the removal of Tree 1.

Did Tree 2 cause damage?

37. In written and oral submissions, the respondents contended and inferred that Tree 2 was not their tree as they did not plant it. As Tree 2 germinated on or near the common boundary, perhaps it was on the applicant’s land? At the least, the Stimson’s contended the parties should share financial responsibility for Tree 2.

38. Although a local council may consider a tree growing across a boundary to be the property of both neighbours, under the Trees Act, a tree is the property of the owner/s of land where the tree base is “wholly or principally” located.

39. While restricted access to Tree 2 caused initial ambiguity, I came to be satisfied that the multi-stemmed base of Tree 2 was primarily situated on the respondents’ land. I also considered the respondents had acknowledged responsibility for Tree 2 by pruning it to near ground level about five years ago.

40. I was satisfied Tree 2 had crushed the common boundary fence against the applicant’s pool shed, damaging the fence. Therefore, s 10(2)(a) of the Trees Act is engaged. In the absence of intervention, I am satisfied Tree 2 is likely to cause similar damage in the near future, where, in the decision in Yang v Scerri [2007] NSWLEC 592, as a rule of thumb, the ‘near future’ is deemed to be a period of 12 months from the date of the determination. Section 10(2)(a) of the Trees Act is again engaged.

41. The full extent of damage to the fence and the pool shed could not be clarified until foliage from Tree 2 is removed. However, from inside the pool shed, although the fence was pushed in towards a brick pillar housing electricity infrastructure, the main concern with the pool shed appeared to be potential damage from basal suckers of Tree 2 in various locations.

42. I was not satisfied Tree 2 was causing the shed to rust. Very minor kinking and minor depressions were apparent on the roof but considering the pool shed was ostensibly at least 13 years old, this extent of damage and or deterioration is consistent with age-based wear and tear.

43. Considering the alleged risk of explosion from a gas leak, I had initially interpreted the source of risk as roots entering the pipes, which surprised me. Onsite, however, I saw that vertical stems emerging from the base of Tree 2 had grown amongst gas pipes for the pool heating system. The potential damage was related to physical pressure on the gas pipes and pipe junctions from emerging and thickening stems, notwithstanding that gas to the pool heater had previously been disconnected.

44. I was satisfied Tree 2 was probably the cause of minor cracking and uplift of Pebblecrete by about 2cm at the eastern end of the applicant’s pool surrounds, parallel with the common boundary. In this case, the cracking and uplift extended to about 1.5m from the base of Tree 2.

45. With respect to root clearance from sewer pipes, Ms Necakovski submitted no receipts detailing sewer pipe damage or repair, nor any other written evidence to clarify the plumbing. The applicant’s oral evidence about the history of plumbing works was confusing, including whether there had been one or two prior visits by plumbers to clear roots. Ms Necakovski emphasised that the plumber’ who cleared the roots recommended removal of both trees, apparently based on their ‘experience’ and the trees’ proximity.

46. Due to the trees’ proximity, it is possible that Tree 1 and or Tree 2 blocked the sewer pipes. However, given that roots from neighbouring trees, depending on species, habit, and opportunity, may extend 3, 4, or even 7 times the spread of their canopies, evidence such as root DNA species identification or root mapping is generally required to establish a probable causal link between the sewer pipe blockage and roots of Tree 1 and or Tree 2. To engage s 10(2)(a) of the Trees Act, the causal link must be probable, not merely possible.

Risk of injury to any person

47. Ms Necakovski alleged there was danger and thus risk of personal injury from overhanging branches from Tree 1 that had broken during high winds and fallen into the pool and branches from Tree 2 that had broken during high winds and fallen onto the lawn.

48. 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).

49. Other than claims of branch breakage during high winds, the applicant submitted no photographs or other specific evidence of previous branch failures, injuries, or near misses. I saw no old wounds from torn out branches on either tree. The structure and branch attachments of Tree 1 appeared particularly sound.

50. For Tree 2, while it is unusual for Camphor laurel regrowth to break, overextended arched branches, as depicted by Ms Necakovski, of any tree species may break in high winds. Shedding is a characteristic of trees.

51. Both Ms Necakovski’s branch breakage claims related to high wind conditions, when, research and observation show that humans usually shelter and gain protection within buildings, thus occupancy rates of outdoor areas are significantly reduced. Consequently, though the likelihood of branch breakage may increase during high winds, for the large majority of people who prudently seek shelter and protection during high winds, the risk of injury does not necessarily increase. To the contrary, it may reduce. As Ms Necakovski made no representation about branches breaking during non-windy conditions, I am not satisfied that either tree presents a genuine risk of injury to any person.

52. If the jurisdictional tests at s 10 of the Trees Act are satisfied, the Court can make orders such as those at s 9 to remedy, restrain or prevent damage to property, or to prevent injury to a person, consequent of a tree. Before determining the nature of any orders, the Court must consider the range of matters set out at s 12 of the Trees Act. Section 10(2) of the Trees Act is engaged by Tree 2 crushing the common boundary fence against the applicant’s pool shed, damaging the fence and probably the shed.

Relevant section 12 considerations

53. Section 12(b2) considers the impact any pruning (including the maintenance of the tree at a certain height, width or shape) would have on the tree.

54. Orders shall be made for pruning of the residual branches impacting the fence back to the branch collar low on the trunk. From the residual branch stubs and the applicant’s photographs it was clear the two branches had extended far and low over the pool. Although removal of the two lowest branches did not eliminate maintenance of leaf drop, the next layer of branches provided significantly more clearance from the water surface. As the tree grows and more pruning of overhanging branches is needed, the recent sharing of pruning and debris removal may serve as a model for ongoing co-operation.

55. Conversely, Tree 2 was causing damage to the fence and probably the pool shed. Pruning is insufficient to prevent ongoing and additional damage, if only because more basal suckers are likely to emerge in and around the pool shed. Therefore, orders shall be made for removal of Tree 2.

56. As noted by the respondents, both trees provide privacy and contribute to the amenity of the land on which they are situated. They also reduce and modify the impact of winds (s 12(b3)).

57. Though the trees are from ‘weed species’, individual specimens may nonetheless provide important contributions. Mrs Stimson noted the birds singing in Tree 2. Thus, the trees provide some shelter and habitat for fauna and make minor local ecosystem and biodiversity contributions (s 12(d)).

58. 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, s 12 (h) considers:

(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.

59. Deterioration from natural wear and tear over time is addressed under s 12 (h)(i), as is ‘poor design’, as considered in Black. While the initial fence kinking occurred when the concrete was poured for the pool surrounds, rubbing branches from T1 caused minor fence damage and salts in the pool water exacerbated corrosion of the bottom of the fence. Nonetheless, given the fence was more than 25 years of age, I am satisfied the primary contribution to the fence’s dilapidation was natural wear and tear over time.

60. In such circumstances, the cost of fence replacement or repair would ordinarily be shared equally between the parties, consistent with s 7(1) of the Dividing Fences Act 19**91 (NSW), which says, “[a]djoining owners are liable to contribute in equal proportions to the carrying out of fencing work in respect of a dividing fence of a standard not greater than the standard for a sufficient dividing fence.” The common boundary Colorbond fence is “a sufficient dividing fence”.

61. While both parties pursued fence replacement at the other party’s expense, neither party considered the fence panels near Tree 1 needed replacement or repair if required to pay half the cost of the works.

62. Section 12(j) considers such other matters as the Court considers relevant in the circumstances of the case. The orders shall require poisoning of Tree 2 to be conducted by an experienced AQF level 3 qualified arborist and shall include a regime of re-poisoning to be implemented as required. I appreciate the demands and expense this order imposes on the respondents, but successful poisoning of Camphor laurel trees is notoriously difficult, and this partially accounts for the pioneering success of the species in the broader landscape. Success is more likely if trees are poisoned correctly prior to removal to encourage translocation of poison throughout the tree’s root system. Even then, persistent poisoning of regrowth is often required.

Conclusion

63. Having examined the trees in site context, my conclusions are:

64. The onus is on the applicant to prove her case, but Ms Necakovski provided insufficient evidence to satisfy the Court that alleged pool and fence damage was caused by Tree 1. Leaf drop and associated maintenance were assessed and dismissed with consideration of the Tree Dispute Principle in Barker.

65. As Tree 1 was found to have caused no damage other than minor fence abrasion, proportional orders for Tree 1 shall be limited to pruning of the residual stubbed branches. In the absence of other damage by Tree 1, or risk of injury, the Court has no power to order occasional pruning of low branches overhanging the applicant’s pool. Therefore, such future pruning arrangements must rest with the parties.

66. Due to the location of Tree 2 across the common boundary and the tree’s potential to cause increased damage, pruning cannot effectively mitigate current or likely future damage to the fence, gas pipes, and pool shed. Consequently, orders shall be made for removal of Tree 2.

67. Although the fence remained fit for purpose, it was more than 25 years old. According to the respondents, the pool shed was at least 13 years old. Therefore, I accept the respondents’ argument that they should not be expected to provide a new pool shed to replace an old one. In any case, after the removal of basal suckers from Tree 2, I anticipate only minor repairs will be required to make the shed ‘fit for purpose’.

68. While the fence is likely to require one or more replacement panels, given the age of the fence, it would be unreasonable to necessarily require new replacement fence panels. Appropriate colour second hand fence panels in reasonable condition may be used to achieve ‘like for like’ panel replacement and fence repair.

69. Similarly, though one area of cracking and uplift of Pebblecrete was probably caused by Tree 2, further damage will be prevented by poisoning and removal of Tree 2. Considering the age and deteriorated condition of the pool surrounds, and likely contraction of the uplift over time, I am not satisfied that orders for rehabilitation of the Pebblecrete surface are justified or proportional to the relatively minor damage.

70. In all but exceptional circumstances, it is conventional for respondents to pay for works ordered under the Trees Act.

71. Ms Necakovski’s proposed Order (3) for reimbursement of costs of the application falls outside the power of commissioners. Claims for legal costs, reports, or application costs and the like require lodgement of a Notice of Motion with the Court, which is heard before a registrar, or a judge.

Orders

64. The Court orders that:

65. The respondents shall engage and pay an experienced Australian Qualification Framework (AQF) level 3 arborist with all appropriate insurance (an arborist) to poison the Camphor laurel (Tree 2) within 45 days of the date of these orders. Approximately four weeks after the poisoning, Tree 2, including all basal suckers in and around the applicant’s pool shed and gas pipes, shall be removed to at least 100mm below ground level.

66. The respondents shall engage and pay an arborist to prune branches from the Celtis (Tree 1) rubbing on the common boundary fence to the branch collar low on the trunk, within 75 days of the date of these orders.

67. The respondents shall engage and pay a fencing contractor with an Australian Business Number (ABN) and all appropriate insurance (the fencer) to replace fence panels damaged by Tree 2 as required, and repair the common boundary fence and the pool shed to reasonable ‘like for like’ condition, within 120 days of the date of these orders.

68. Should Tree 2 regrow, the respondents shall promptly engage and pay an arborist to poison all regrowth. The respondents shall repeat this procedure, as and when necessary, until the tree is dead. This order also applies to regrowth from Tree 2 on the applicant’s land, provided the applicant notifies the respondents about the regrowth before foliage reaches 1.5m tall. The applicant shall be responsible for poisoning regrowth from Tree 2 that is or has been taller than 1.5m.

69. The applicant shall provide the respondents and or an arborist and or the fencer with all required access to undertake works, clear debris, and poison regrowth from Tree 2, subject to at least 72 hours’ notice of the date and approximate start time of the works.

70. The pruning shall comply with AS4373:2007, Pruning of amenity trees and all tree work shall comply with Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016.

71. All works shall be undertaken during reasonable daytime working hours.

J Douglas

Acting Commissioner of the Court

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