Phillips v Peters

Legislation Cited: Dividing Fences Act 1991 (NSW), s 13A
Trees (Disputes Between Neighbours) Act 2006 (NSW), Pt 2, ss 4, 7, 8, 9, 10, 12

Cases Cited: Liang v Marsh [2011] NSWLEC 1026
Yang v Scerri [2007] NSWLEC 592

Category: Principal judgment

Parties: Neil Phillips (Applicant)
Simon Peters (Respondent)

Representation: Counsel:
N Phillips (Self-represented) (Applicant)
M Axford (Agent) (Respondent)
S Peters (Self-represented) (Respondent)

File Number(s): 2025/251272

Publication restriction: Nil

Judgment

Background

1. COMMISSIONER: In Lockhart, west of Wagga Wagga, Neil Phillips (the applicant) and Simon Peters (the respondent) own and reside at adjoining residential properties. Mr Phillips has applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (the Trees Act) seeking orders relating to several trees on Mr Peters’ property. The orders he seeks are (summarised here):

2. Removal of four trees

3. Compensation for damage to his shed

4. Repairs to the dividing fence

5. ‘Replacement’ of a ‘missing’ section of the dividing fence.

6. At the onsite hearing, the Court inspected the trees and both properties. Mr Phillips was self-represented. I granted leave to Mr Peters’ sister, Melanie Axford, to represent Mr Peters as his agent. Mr Peters also made his own submissions to the Court. The parties have provided no expert evidence. I rely on my own arboricultural expertise and experience in making this decision.

Framework for this decision

3. The trees are on land within a zone designated ‘village’ and are situated wholly on land adjoining the applicant’s land. They are trees to which the Trees Act applies: s 4 of the Trees Act.

4. The orders that the Mr Phillips seeks are orders the Court can make at s 9 of the Trees Act, although the Court may make different orders as it sees fit.

5. The Court must not make any order unless it is satisfied that Mr Phillips has made a reasonable effort to reach agreement with Mr Peters and has given the required notice of the application: s 10(1) of the Trees Act. The Court must also be satisfied, before making an order for any tree, that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or is likely to cause injury to a person: s 10(2) of the Trees Act. Before determining the application, the Court must consider relevant matters at s 12 of the Trees Act.

Reasonable effort to reach agreement

6. Ms Axford submitted for Mr Peters that Mr Phillips did not make any reasonable effort to resolve the issues before commencing these proceedings.

7. Mr Phillips submitted that he and Mr Peters discussed damage to his shed floor at Mr Phillips’ property.

8. Mr Phillips wrote to Mr Peters on 26 July 2024 asking Mr Peters to pay for a replacement concrete slab. He also asked Mr Peters to ‘replace’ a section of the dividing fence along their common boundary. Mr Phillips then contacted the Community Justice Centres seeking mediation with Mr Peters, but Mr Peters refused to attend mediation. I am satisfied that Mr Phillips made a reasonable effort to reach agreement with Mr Peters and that he gave notice of the application as required by s 8 of the Trees Act.

The trees

9. In his application to the Court, Mr Phillips included four trees (T1–T4) in the diagram on page 2, and the list at Question 3, of his claim details form (Form H):

10. T1 – Grevillea robusta (silky oak)

11. T2 – Grevillea robusta (silky oak)

12. T3 – Lagunaria patersonia (Norfolk Island hibiscus)

13. T4 – a gum tree, which is Corymbia citriodora (lemon-scented gum).

14. Mr Phillips seeks orders for repairs to the dividing fence, which he says was damaged by two other trees that once stood on Mr Peters’ property, but fell over onto Mr Phillips’ property prior to his purchase four years ago, damaging the fence, and were cleared soon after he purchased the property. If that be the case, pursuant to s 4(4) of the Trees Act, those trees may still be taken to be situated on the respondents’ land for the purposes of this application:

(4) Without limiting subsection (3), a tree that is removed following damage or injury that gave rise to an application under Part 2 is still taken to be situated on land for the purposes of the application if the tree was situated wholly or principally on the land immediately before the damage or injury occurred.

T1 – silky oak

Observations

11. This silky oak (T1) is in Mr Peters’ back yard, nearest to Mr Phillips’ shed. The dividing fence is absent alongside the shed, a matter I will come to later, but T1 is clearly situated on Mr Peters’ land. T1 is approximately 10 metres tall with a stem diameter of approximately 40 cm. T1 is in good condition, with typical form for the species.

12. The concrete floor of Mr Phillips’ shed is cracked and lifted. While the entire floor area has cracks of varying sizes, its condition is poorest on its eastern side, nearest T1.

Submissions

13. Mr Phillips submitted that T1 has damaged the shed. He wrote in his application: “T1 has caused damage to my shed (D1). It has cracked and lifted the concrete slab. The lift height of the main crack is approx. 100 mm. The shed is also on a lean which I believe is caused by the uplift of the tree.” Mr Phillips claims compensation of $15,076.15 for replacing the shed: $4,200 to replace the concrete slab, $7,376.15 for a kit shed (quote included in the application), and $3,500 for the labour to build it.

14. Mr Phillips suggested that the shed is leaning due to the effect of roots from T1.

15. Mr Phillips submitted that silky oaks are environmental weeds.

16. Mr Peters submitted that the shed was constructed by the previous owner of Mr Phillips’ property, at which time T1 was already established on the Peters property (the property has been owned by members of Mr Peters’ family for some time). Mr Peters submitted that Lockhart Shire Council has no record of any development consent for the shed, and that the shed was not exempt development due to its proximity to the side boundary.

17. Mr Peters pointed out that no tree roots have been uncovered beneath the concrete slab. He said the concrete is a thin, non-structural ‘topping slab’ that was poured after the shed was constructed. He said that damage to the concrete slab was more likely to be gradual, rather than sudden, so the slab was unlikely to be in good condition when Mr Phillips purchased his property. Mr Peters said that Mr Phillips had provided no evidence to support his claim that T1 has caused the shed to lean.

Findings

18. The condition of the shed’s concrete slab appears to be principally due to its age and its poor quality of construction. I accept that the condition of the section nearest T1 is worse than elsewhere, possibly due to the effect of a woody root beneath the slab, but the overall condition of the slab would not be much different to its current state even without the presence of roots from T1. I also find that the slab was most likely cracked to a significant degree when Mr Phillips purchased his property. He bought the property without inspecting it himself, and has no doubt discovered several issues since then. In Liang v Marsh [2011] NSWLEC 1026 (Liang) at [32]–[35], Fakes C found that only a small proportion of damage caused by a tree occurred during the applicants’ ownership of their property:

“[32] An important question to be asked is how much damage to what is now the applicants' property has been caused by the tree in the time they have owned the property.

[33] The test requires the damage to be damage caused to the applicant's property whilst owned by the applicant. I am not satisfied from the evidence that the applicants have proved on the balance of probability (that being the relevant test), that the displacement of the fence and the retaining wall and the damage to the tiles have happened in that brief time. It is more likely that the majority of the damage occurred when the property did not belong to the applicants and the property was in that condition when the applicants purchased it.

[34] It is reasonable for me to assume that the applicants paid 'market value' for their property. Such a sale requires a willing buyer and a willing seller with both parties fully aware of all factors that affect the value of the property. This is a case of caveat emptor or let the buyer beware. In this case, the tiles are highly likely to have been already cracked, the fence was already displaced, the retaining wall post was already leaning and the Blue Gum was clearly well established. At best, 1/12 of the damage to the retaining wall and the fence has occurred during the time the property has been owned by the applicants.

[35] Therefore I am not satisfied that the applicants have a strong case on the basis of past damage. However, as previously stated, that is not to say that the tree could not cause damage or injury in the future.”

19. In the current proceedings, any damage caused by T1 since Mr Phillips purchased his property is likely to be such a small proportion of the overall damage to his shed that it would not warrant any compensation from his neighbour. If the tree is likely to cause damage to Mr Phillips’ shed in the near future, he has not demonstrated as much. No tree roots have been uncovered and he has not proposed any solution other than removing the tree. If he constructs a new concrete slab floor to the shed, as he says he intends to do, evidence is lacking that it too will be damaged by T1’s roots. Should he discover tree roots when laying a new concrete slab, this could be discussed with Mr Peters at the time and an appropriate solution found.

20. Regarding Mr Phillips’ claim that T1 is an environmental weed, I was presented with no evidence regarding the weed status of any tree in these proceedings. A tree’s weed status may be considered by the Court at s 12 of the Trees Act, but is not a reason for making orders at ss 9 and 10 of the Trees Act.

21. For these reasons, no order will be made to remove T1 and no order will be made for compensation for damage to Mr Phillips’ shed.

T2 – silky oak

Observations

22. The second silky oak (T2) is in Mr Peters’ back yard, further from Mr Phillips’ shed. T2 is around 10 metres tall with a stem diameter of approximately 30 cm. T2 is in good condition, with typical form for the species.

Submissions

23. Mr Phillips wrote at Question 4 of Form H in his application: “I believe that T2 is currently causing damage to Mr Peters’ house (not my concern).” He does not claim that T2 has caused, or is likely to cause, damage to his property.

24. Again, Mr Phillips submitted that silky oaks are environmental weeds.

Findings

25. Because it has not damaged, nor is likely to damage, Mr Phillips’ property, no orders can be made for T2.

T3 – Norfolk Island hibiscus

Observations

26. The Norfolk Island hibiscus (T3) is between Mr Peters’ dwelling and the common boundary shared by the parties. T3, which is approximately 10 metres tall, is close to the dividing fence along the common boundary. Near T3, the fence leans towards the tree slightly. The fence is old and weathered.

Submissions

27. Mr Phillips submitted that T3 has damaged the dividing fence along the common boundary. Mr Phillips said T3’s branches had grown against the fence. As a result of this damage, and damage caused by other trees that fell on the fence, the entire fence needs replacing.

28. Mr Phillips submitted that Norfolk Island hibiscus is an environmental weed.

29. Mr Peters disputes that T3 has damaged the fence. Mr Peters submitted that the dividing fence does not need replacing. He said he could not afford to replace it anyway.

Findings

30. I observed no damage caused to the dividing fence caused by T3. The fence is made of corrugated iron panels supported by timber posts. The timber posts are old and some are loose in the ground. The fence panels are old and weathered. The fence leans toward the tree as a result of loose fence posts. If the tree was pushing the fence over, the fence would be leaning away from the tree. T3’s branches nearest the fence have been cut, they are not touching the fence, and there is no sign that branches have damaged the fence. Regarding future damage, I cannot be satisfied that T3 is likely to damage the dividing fence in the near future, a period I regard as within the next 12 months, as per the rule-of-thumb adopted at [14] of Yang v Scerri [2007] NSWLEC 592.

31. Regarding Mr Phillips’ claim that T3 is an environmental weed, I was presented with no evidence regarding the weed status of any tree in these proceedings.

32. Because it has not damaged, nor is likely in the near future to damage, Mr Phillips’ property, no orders can be made for T3.

T4 – lemon-scented gum

Observations

33. The lemon-scented gum (T4) is near Mr Peters’ rear boundary, adjacent to a public laneway, well away from Mr Phillips’ property. T4 is approximately 16 metres tall with a stem diameter close to one metre. T4 is healthy, with typical form for the species. Its broad crown spreads over Mr Peters’ back garden and above the public laneway to the south.

Submissions

34. Mr Phillips submitted that T4 poses a risk to the public. He said the laneway behind Mr Peters’ property is relatively busy. He has seen branches fall from T4. He said it is only a matter of time before a branch falls and injures somebody.

35. Mr Peters submitted that T4 provides amenity and shade.

Findings

36. Contrary to Mr Phillips’ submission, the laneway south of Mr Peters’ property is not busy. It is an unsealed laneway behind eight properties fronting a sealed road to the north, and behind another ten properties fronting a sealed road to the south. At each end of the laneway, a sealed street runs north–south. T4 is approximately midway along the laneway. People or vehicles using the laneway for access to the back of their properties might not even pass beneath T4. Therefore, branches may fall occasionally, but they are unlikely to cause injury. No orders can be made for T4.

The dividing fence’s ‘missing’ section

Observations

37. The dividing fence between the parties’ properties runs along most of the length of their common boundary, but the fence is absent alongside the shed. Here, the shed’s eastern wall is less than one metre from the common boundary.

Submissions

38. Mr Phillips submitted that Mr Peters removed this section of fence. Mr Phillips said that this gives Mr Peters access to the small strip of land between the boundary and Mr Phillips’ shed. Mr Phillips wants Mr Peters to ‘replace’ this section of fence.

39. Mr Peters submitted that he has never removed this section of fence – rather, it was constructed like this, perhaps because no fence was required here due to the proximate shed wall. Mr Peters said the fence is exactly as it was when Mr Phillips purchased his property.

Findings

40. My observations support Mr Peters’ submission that the fence was constructed as it is. When Mr Phillips purchased his property, there was no fence to the east of his shed. No tree has damaged this section of fence. The Court cannot order Mr Peters to erect a fence here.

The dividing fence generally

Observations

41. As I have noted already, the dividing fence’s current condition reflects its age and its materials. Nevertheless, it is currently serving its purpose and, if not disturbed, might continue to do so for some years. The parties disagree on what should be done to the fence.

Submissions

42. Mr Phillips wants the fence replaced. Mr Phillips did not inspect his property prior to purchase, but had a third party inspect it. Mr Phillips says two trees on Mr Peters’ land had fallen across, and damaged, the fence at the time he purchased his property, although the third party who inspected the property did not mention this to him. The trees were cleared soon after. Mr Phillips wants Mr Peters to bear most of the cost of replacing the fence. Mr Phillips does not want Mr Peters to repair the fence himself. Mr Phillips submitted that his insurer would not cover injury to anyone other than a licenced contractor repairing the fence.

43. Mr Peters submitted that two sections that were damaged by fallen trees could be repaired easily. He could do this himself with help from friends. This would require some access to Mr Phillips’ property, which Mr Phillips has not allowed.

Findings

44. Trees on Mr Peters’ land have damaged the dividing fence. This enables the Court, within the jurisdiction of the Trees Act, to make orders to repair those sections of the fence damaged by Mr Peters’ trees. It also enables the Court to make orders, pursuant to s 13A of the Dividing Fences Act 1991 (NSW), to repair or replace the entire dividing fence.

45. Before determining an application, the Court must consider matters at s 12 of the Trees Act. Along with specific matters listed at s 12, the Court can take into account at s 12(j) “such other matters as the Court considers relevant in the circumstances of the case.” Both Mr Phillips and Mr Peters made submissions as to their financial circumstances. Neither party can afford the cost of a new dividing fence. Although Mr Phillips wants a contractor to repair the fence, I note that the fence is in roughly the same condition now as when he purchased his property. As per the findings in Liang, discussed above at [18], Mr Phillips has not suffered a loss since purchasing his property, the price of which reflected its condition at the time.

46. If only a few panels were replaced, they would appear starkly inconsistent with the remainder of the fence. The fence is functional in its current state. If Mr Peters is willing to straighten or otherwise repair panels damaged by his own trees, that seems reasonable. With Mr Phillips’ resistance to Mr Peters doing any fence works in mind, orders from the Court would enable Mr Peters to carry out minor repairs to the fence.

Orders

47. The Court orders that:

48. The application to remove four trees is refused.

49. The application for compensation is refused.

50. On at least 7 days notice from the respondent, the applicant is to allow access to his property for the respondent to carry out minor repair works to the dividing fence where the fence has been damaged by fallen trees.

51. If the respondent does not notify the applicant and complete minor repair works to the dividing fence within three months of the date of these orders, Order (3) lapses.

52. The exhibits are returned, other than Exhibit A.

D Galwey

Acting Commissioner of the Court

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