Pietilainen v Paisley-Topp

The onsite hearing

1. The hearing was conducted on 14 November 2022. The Applicant was represented by Mr Edward Neaves, of Shoalhaven Lawyers, while the Respondents were self - represented.
2. Tree 1 and Tree 2 stand approximately 8 - 9 m tall, with roughly symmetrical canopies. The attachments of live branches appear strong and stable, and I saw no signs around the tree bases, such as soil heaving and lifting, or cracks in the soil, that may be indicative of stability issues.
3. The Respondents lodged a report from Mr Geoff Beisler, an Australian Qualifications Framework (AQF) level 5 arborist from Green Earth Tree Consultancy, dated October 2022. The report attributed Tree 1 and Tree 2 with a Safe Useful Life Expectancy of 15-40 years, and assigned a risk rating of low, based on a level 2 inspection using the internationally recognised Tree Risk Assessment Qualification (TRAQ) methodology. I concur with these conclusions.
4. Upon inspecting the site from the Applicant's property, the Applicant highlighted branches overhanging the boundary, and areas where leaves and other refuse fell from the trees onto her dwelling roof and into gutters. The Applicant submitted that leaves will consequently rust the gutters and that maintenance required to clear away these leaves was excessive and unreasonable.
5. The Respondents note that the trees provide an important contribution to their privacy, to the local ecosystem as habitat for local birds and bees, and intrinsic value to public amenity.

Jurisdictional requirements - Pt 2

1. With respect to s 7, 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 Trees Act applies that is situated on adjoining land.
2. The Court is obliged to consider matters pursuant to s 10 of the Trees Act.
3. As required by s 10(1)(a), I am satisfied that there has been a reasonable effort by the Applicant to reach agreement with the owners of the land on which the trees are situated. Ms Pietilainen provided evidence of multiple requests for removal of the trees and attempts to organise mediation under the auspices of the Community Justice Network.
4. The Respondents were critical of the manner of the Applicant's approach and of the Applicant's alleged intractability in negotiations, but the Trees Act does not dictate the nature or conduct of negotiations, simply that the Applicant makes a reasonable effort to reach agreement. Similarly, while the Respondents appeared frustrated that the Applicant failed to meet the Registrar's timetable for lodgement of additional documents to the Court, I am not satisfied that the Respondents were consequently disadvantaged in the proceedings, and in the interest of justice and transparency, I accepted all submissions and evidence lodged by both parties.
5. The next major test that is posed, by s 10(2) of the Act, is that the Court must be 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.

Is dwelling roof or shed damage likely in the near future?

1. In Yang v Scerri [2007] NSWLEC 592, the near future is defined, as a rule of thumb, to be a period of one year from the date of determination of the dispute.
2. Both Tree 1 and Tree 2 are growing vigorously, likely in response to above average rainfall and relatively mild conditions since early 2020. Low branches from Tree 2 are growing onto and over the Applicant's dwelling roof, such that I am satisfied that minor damage to guttering is likely in the near future. Epicormic regrowth from the roughly pruned branches of Tree 1 above the Applicant's back shed are also prone to break from the tree.
3. 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. Therefore, s 10(2)(a) of the Trees Act is engaged, such that orders may be contemplated. Whether the damage is minor or major is irrelevant in answering the jurisdictional tests in s 10(2) but it can be relevant in determining what orders, if any, should be made.

Is damage to concrete paths or building foundations likely in the near future?

1. The Applicant noted that "The root systems of Ash trees are known to be able to lift concrete and we are concerned that the close proximity of the root system (about 2.4 m away) will cause damage to the foundations". The Applicant also advised that sewer pipes were located near the vegetation along the boundary but reported no past or current damage.
2. Ms Pietilainen did not, however, provide evidence such as the commencement of uplift, or cracking surfaces, to justify this concern. In the ideal world, Tree 1 and Tree 2 would not have been planted so close to the Applicant's dwelling, but many trees are planted too close to structures, often much closer than here, without causing damage.
3. Roots are opportunistic and will normally grow more actively where environmental conditions are best. They may not grow readily towards the Applicant's land due to surface sealing with concrete which restricts access to oxygen, or, in the fullness of time, they may deflect and grow along beside the Applicant's dwelling without consequence.
4. I concur with the Respondents that general information about Claret Ash trees drawn from Lawn.com.au by the Applicant is not persuasive evidence. While Ms Pietilainen emphasised a comment from the article about Claret Ash trees having shallow roots, this is not significant as most trees have shallow roots. I could also find no source or basis in the reference material supplied by the Applicant to support her assertion that, "The root systems of Ash trees are known to be able to lift concrete". In any case, though many tree species may have a propensity to lift concrete, it does not necessarily mean that they will do so. All trees must be considered in context.
5. Generalised species characteristics and concern about the proximity of a tree is not adequate or sufficient evidence on which to base a finding of likely damage in the near future.
6. In Stevens v Russell [2016] NSWLEC 1233 at [41], Fakes C notes that "…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.".
7. The Applicant apparently undertook no investigation or excavation that may have shown that damage was likely in the near future as a consequence of the roots of the trees. Therefore, no causal relationship between tree roots and any real or perceived damage to the concrete surfaces or house foundations was established.
8. In Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 at [62], Craig J said "…something more than a theoretical possibility is required in order to engage the power under the Trees (Disputes between Neighbours) Act to make an order to remedy, restrain or prevent damage…".
9. In the absence of specific evidence, the Applicant is merely speculating about damage the trees may cause in the near future. The fact that the trees may cause future damage is a "theoretical possibility', but this alone is insufficient to engage the Trees Act. Based on the evidence before me, I am therefore not satisfied that damage is probable in the coming year and consequently this element of the Applicant's claim is refused.

Discretionary matters - s 12

1. As s 10(2)(a) of the Trees Act is engaged by overhanging branches sweeping the Applicant's roof, the Court may contemplate making an order, but first must consider relevant matters in s 12 of the Trees Act, as follows: 1. Tree 1 is located in the Respondents' property about 450mm from the common side boundary (s 12(a)), while tree 2 is further from the boundary. 2. With respect to removal or pruning, the tree is likely protected under Shoalhaven Council's Development Control Plan Chapter G4 Tree and Vegetation Management for Residential area (s 12(b)). 3. Minimal pruning of Tree 1 and Tree 2 has been undertaken in the past which is appropriate in terms of optimum tree health. Any removal of foliage cover by pruning, or any other means, reduces a tree's capacity to optimise photosynthesis and potential carbohydrate supply, which is necessary for a range of essential functions. Though pruning should therefore not occur as part of 'normal' maintenance, it should be undertaken when necessary to achieve a required purpose (s 12(b2)). 4. Formative pruning is required in this case, subject to compliance with AS4373-2007: Pruning of amenity trees, to clear low pendant branches sweeping the roof and establish a higher canopy scaffold over the Applicant's house and yard. Though such pruning would ideally have been conducted earlier in the trees' life-cycle, it remains appropriate currently (s 12(b2)). 5. The trees contribute significantly to privacy, protection from the sun, to landscaping, and to the amenity and scenic value of the Respondents' land (subss 12(b3) and (e)). 6. Both trees may provide shelter for local fauna, and thus would make a moderate contribution to local biodiversity (s 12(d)). 7. The trees are likely to be providing benefit to soil stability, and to reducing localised water accumulation (s 12(g)). 8. Section 12(i) considers anything, other than the tree, that has contributed, or is contributing, to any damage or likelihood of damage, including any act or omission by the applicant and the impact of any trees owned by the applicant. 9. Dropping debris - Ms Pietilainen's claim encompasses dropping of leaves onto the dwelling roof and into both sides of its gutters. The Applicant appeared to be annoyed by tree branches encroaching over her property, but encroachment of foliage over boundaries is to be expected in urban areas, and there is no restriction or remedy available under the Trees Act for tree branches overhanging neighbouring properties, if they are not also causing damage. 10. This issue is addressed at [171] of Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152, where Preston CJ says: "However, annoyance or discomfort to the occupier of the adjoining land occasioned by nuisances of the third kind is not "damage to property on the land" within s 7 of the Trees (Disputes Between Neighbours) Act 2006. Hence, leaves, fruits, seeds, twigs, bark or flowers of trees blown onto a neighbour's land might cause annoyance or discomfort to a neighbour, but unless they also cause damage to property on the neighbour's land they will not be actionable under s 7.". 11. As the Respondents noted in citing Tolkin v Speiser & anor [2013] NSWLEC 1225, the Court has published a Tree Dispute Principle in Barker v Kyriakides [2007] NSWLEC 292 (Barker), which, at [20], states that: "…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, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering the removal of or intervention with an urban tree." 1. As a result, the dropping of refuse associated with Tree 1 and Tree 2 is not deemed to be damage under the Trees Act, and the required maintenance to clear leaves, seeds, flowers and small sticks from the dwelling's roof, gutters, and the surrounding area is considered to be reasonable. This element of the Applicant's claim is thus refused. 2. The Applicant also noted mould growth on the footpath between the house and the boundary fence as a negative impact of the tree, but again there is no remedy under the Trees Act as the Tree Dispute Principle in Barker was extended to include the cleaning of mould and slime in Hendry & anor v Olsson & anor [2010] NSWLEC 1302, at pars [11] to [14]. I also accept the Respondents' submission that increased mould growth has mainly been a consequence of higher that average rainfall attributable to three rare sequential La Nina weather cycles since early 2020, rather than to the Claret Ash trees.
2. Limited sunlight impacting solar panels as a consequence of shade from the trees was the third "negative impact of the tree" submitted by the Applicant. There is, however, no jurisdiction under the Trees Act covering overshadowing of solar panels by amenity trees under Pt 2 of the Trees Act, and obstruction of sunlight under Pt 2A of the Act is restricted to "sunlight to a window of a dwelling". It does not extend to obstruction of sunlight to solar panels.

Jurisdictional requirements - Pt 2A

1. Ms Pietilainen also made an application, pursuant to s 14B of Pt 2A of the Trees Act, seeking remedy for severe obstruction of sunlight to windows of her dwelling as a result of a Viburnum tree hedge. In Pt 2A matters, the Court must consider a number of jurisdictional tests before any orders can be contemplated. The process is set out in Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at [17] - [22].

Do the trees form a hedge?

1. The first test is s 14A(1), that is, are the trees a hedge for the purpose of the Act?
2. Section 14A(1) states: 14A Application of Part (1) This Part applies only to groups of 2 or more trees that: (a) are planted (whether in the ground or otherwise) so as to form a hedge, and (b) rise to a height of at least 2.5 metres (above existing ground level).
3. The evidence provided and confirmed onsite satisfies s 14A(1) of the Trees Act.
4. Section 14B states that an owner of land may apply to the Court for an order to remedy, restrain or prevent the severe obstruction of: 14B Application to Court by affected land owner … (a) sunlight to a window of a dwelling situated on the applicant's land, or (b) any view from a dwelling situated on the land, if the obstruction occurs as a consequence of trees to which this Part applies being situated on adjoining land.
5. Section 14E(1)(a) of the Trees Act requires that the applicant has made a reasonable attempt to reach agreement with the owner of the land on which the trees are situated, and s 14E(1)(b) requires that the applicant has given notice in accordance with s 14C (if this requirement to give notice has not been waived by the Court).
6. These requirements are effectively identical to those at s 10(1)(a) and s 10(1)(b) respectively, of Pt 2 of the Trees Act, which the Applicant has already satisfied. Therefore, s 14E(1)(a) and s 14E(1)(b) of the Trees Act are engaged.
7. The next step is to assess the severity of the obstruction of view from the applicant's dwelling as a consequence of any or all of the trees in the hedge.
8. Section 14E(2)(a) states: 14E Matters of which Court must be satisfied before making an order … (2) The Court must not make an order under this Part unless it is satisfied that: (a) the trees concerned: (i) are severely obstructing sunlight to a window of a dwelling situated on the applicant's land, or (ii) are severely obstructing a view from a dwelling situated on the applicant's land.
9. The hedge height had been pruned to about 3.4 m high prior to the hearing, such that I am not satisfied that the hedge is causing a severe obstruction of sunlight to the Applicant's nominated windows. Consequently, s 14E(2)(a)(i) of the Trees Act is not engaged.
10. Tree 2 is likely to obstruct some sunlight to the Applicant's dwelling but Trees 1 and 2 are separate amenity trees rather than members of the hedge, and the Trees Act provides no jurisdiction for obstruction of sunlight by amenity trees.
11. The Applicant sought orders for the hedge to be pruned to a height of 1.5 m and claimed that the hedge had been pruned much lower than its current height in the past. In his arborist report, at par (2.2), Mr Beisler notes that "the existing hedge (Trees 3) had been maintained at approximately 3.3 m for an extended period". My inspection of past pruning wounds on the hedge trees also displayed that the hedge has not been pruned lower than about 3.3 m in the recent past, and certainly not during the Applicant's relatively short occupation. The Respondents claimed that they had maintained the hedge at about this height since they initially occupied their property in 2011.
12. Even if I had determined the obstruction of sunlight to the Applicant's dwelling as a consequence of any or all of the trees in the hedge to constitute a severe obstruction, thus engaging s 14E(2)(a)(i), the Trees Act requires me to also consider the balancing of interests in s 14E(2)(b). This states: 14E Matters of which Court must be satisfied before making an order … (b) the severity and nature of the obstruction is such that the applicant's interest in having the obstruction removed, remedied or restrained outweighs any other matters that suggest the undesirability of disturbing or interfering with the trees by making an order under this Part.
13. In order to determine the balance inherent in this subsection, consideration of relevant matters in s 14F of the Trees Act is required. This includes privacy, shading and cooling, and the amenity provided by the hedge.
14. Once the past pruning height was established to have been about 3.4 m, the Applicant appeared satisfied with this height, provided it was maintained by the Respondents.

Conclusion

1. I have examined the trees and the site and have reached the following conclusions: 1. Branches from Tree 2 hanging low over the Applicant's roof are likely to cause damage in the near future. Though such damage is likely to be restricted to scratching of paint on roof gutters and minor denting, based on the Court's decision in Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285, where even relatively minor damage was found to engage the Court's jurisdiction, s 10(2)(a) of the Trees Act is engaged. 2. Only one element of s 10(2) of the Trees Act need be proved to engage the jurisdiction. If the jurisdictional test in s 10(2) is satisfied, s 9 of the Trees Act empowers the Court to make any order it sees fit to remedy, restrain or prevent damage to property or injury to persons. 3. Orders will be made for formative pruning to establish the branch scaffold of Tree 1 and Tree 2 higher above and clear of the Applicant's roof. The Respondents owe the Applicant a duty of care to prevent foreseeable damage, so this pruning shall be at the Respondents' expense and under their direction. While this will not eliminate refuse dropping or blowing from the tree, it should reduce the Applicant's concerns about branches impacting the dwelling's roof. 4. The onus is on the Applicant to prove her case. No adequate reliable evidence was provided to the Court to satisfy the Applicant's claim of near future damage to concrete paths or building foundations beyond apprehension based on a generalised characteristic said to be typical of Claret Ash trees, and the relatively close proximity of Tree 2 to the Applicant's dwelling. 5. It is regrettable that Tree 1 and Tree 2 were planted in such close proximity to the Applicant's land. However, though the trees may cause damage in the medium to long-term, many large trees grow near buildings and other structures without consequence, thus damage is not inevitable. In the absence of substantive evidence at least suggestive of likely damage in the near future, I have not been persuaded that such damage is foreseeable. The trees' genus and proximity alone are insufficient reasons to justify tree removal or intervention with the trees' roots. 6. As shown through consideration of s 12 of the Trees Act, both trees provide a range of valuable environmental services and benefits for the Respondents and the broader community which accrue while the trees remain. When or if the trees' roots cause damage is unpredictable. It would be unreasonable for the trees to be removed 'just in case', at least until initial evidence of damage by the trees' roots is detected. 7. The Applicant's claims regarding damage to the roof or rusting of gutters, and excessive maintenance as a result of twigs, leaves, bark, flowers or fruit falling from the trees, or from removing mould, is set aside through the application of the Tree Dispute Principle in Barker. The Trees Act provides no remedy for trees' overshadowing solar panels. 8. The Applicant's claim that the Viburnum hedge was severely obstructing sunlight to windows of a dwelling was refused as the hedge had been heavily pruned to a height of about 3.4 m prior to the hearing. I am not satisfied that this hedge pruning, notwithstanding that it was just before the hearing, was cynical or mischievous as the hedge had been pruned relatively regularly in the past to about the same height. 9. The issue of responsibility for maintenance of the hedge on the Applicant's side of the boundary does not come under the jurisdiction of the Trees Act, but it is not unusual for owners of hedges on boundaries to maintain the height of the hedge and the foliage on their side, while neighbours maintain foliage that protrudes beyond the common boundary, as they see fit.

Orders

1. The Court orders that: 1. The application is granted in part. 2. Within 60 days of the date of these orders, the Respondents, at their expense, shall employ AQF level 3 qualified arborists, who hold all appropriate insurances, to prune branches from Tree 1 and Tree 2. 3. Pruning of Tree 1 shall comprise removal of branch stubs on branches previously pruned above the back shed by the Applicant's husband, to the nearest branch collar. Branches above the Applicant's shed, within 1.5 m of the top of the shed, shall also be pruned to the nearest branch collar. 4. Pruning of Tree 2 shall comprise removal of branches overhanging the Applicant's dwelling roof to provide a clearance of 2.5 m from the roof. 5. The total volume of live foliage removed from the sum of this pruning shall not reduce the overall leaf mass of the trees by more than 15%. 6. Whilst pruning Tree 1 and Tree 2, all deadwood above 10mm diameter at the branch collar shall be removed. 7. All pruning shall conform with AS4373-2007: Pruning of amenity trees and shall be completed in accordance with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016. 8. The Applicant shall provide all reasonable access to the Respondents' contracted arborists to complete the works and remove refuse, upon receipt of at least 72 hours' notice by email of the date and approximate start time of the tree pruning works. 9. The pruning works shall be undertaken during reasonable daytime working hours. ………………………….

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 February 2023