mixed. Court ordered replacement of the entire timber dividing fence with costs shared equally (applicant to obtain quotes, respondent to reimburse 50%); respondent to maintain trees so foliage does not...
Key principles
The Trees (Disputes between Neighbours) Act 2006 jurisdictional test in s 10(2) is satisfied where at least some trees have caused, are causing, or are likely in the near future...
Where a dividing fence is significantly past its useful life and timber decay is the primary contributor to its dilapidation, a tree-owner's minor contribution to that condition...
In exercising the discretion under s 9 read with s 12 of the Trees Act, the Court must weigh arboricultural and environmental factors (tree health, ecosystem services, privacy,...
Issues before the court
Did the Trees (Disputes Between Neighbours) Act 2006 s 10(2) threshold (causing or likely to cause damage or injury) get satisfied by the...
Who should bear the cost of replacing the dilapidated dividing fence?
What pruning orders, if any, should be made under the Trees Act (s 9 read with s 12)?
Can the Commissioner award the respondent's claim for reimbursement of an arborist report cost?
Plain English Summary
The applicant complained that the respondent's Brush Cherry hedge was damaging an old timber dividing fence and overhanging his carport. The Court found some tree branches had caused past damage and some could cause future damage, so it had power under the Trees Act to make orders. However, the fence was mainly dilapidated due to age and decay (installed around 1964), so the Court ordered both neighbours to equally share the cost of replacing the fence with a standard timber paling fence. The respondent must prune and maintain tree growth so it does not contact or push the fence and must keep foliage at least 500mm above the top of the new fence and remove branches touching the carport. The Court refused the applicant's request for heavy pruning back to or beyond the boundary because that would harm the trees and their environmental benefits. The respondent's claim for his arborist fee was not awarded in this forum.
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Deep Dive
1,793 words · generated 11/07/2026
Cited legislation
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What happened
This is an on-site neighbour tree-and-fence dispute determined by the Land and Environment Court (Acting Commissioner J Douglas) between two owners in Hornsby. The applicant, Mr Gerardo Ricco, alleged that 46 Syzygium paniculatum (Brush Cherry) trees on the respondent’s land had caused damage to the 58-metre timber dividing fence that had stood since about 1964, and that overhanging branches posed a risk to property and persons (Background [1]–[3]). The applicant applied under s 7 of the Trees (Disputes between Neighbours) Act 2006 (the Trees Act) seeking remedial orders, and sought relief under s 13A of the Dividing Fences Act 1991 (question 17 on his application). The respondent disputed that the trees had caused the fence’s deterioration, sought full replacement, and asked for reimbursement of an arborist’s report cost.
At the on-site hearing the Commissioner inspected the trees and fence, reviewed photographs and an arborist report, and heard submissions from both litigants in person. Evidence showed branches had grown through the fence at some points, and areas of the fence leaned towards the applicant’s property. The fence exhibited extensive timber decay and had been subject to temporary repairs. The respondent also had a clump of Banana trees at the northern corner crossing the boundary.
The Court found that some branches had caused past damage and that some branches were likely to cause damage in the near future (the Court applied the 'near future' guidance from Yang v Scerri). However, the primary cause of the fence’s poor condition was age and timber decay, not tree-caused damage alone. The Commissioner ordered replacement of the entire fence as a sufficient dividing fence under the Dividing Fences Act, with the parties to share costs equally. The respondent was ordered to maintain the trees so future foliage did not contact or push the fence and to prune to maintain a 500mm clearance above the top of the new fence; branches under the carport were to be removed. Heavy pruning back to or beyond the boundary was refused as unnecessary and harmful to tree health.
Why the court decided this way
The decision turns on two linked statutory frameworks: the Trees Act and the Dividing Fences Act.
Trees Act jurisdiction (s 10(2)). The Trees Act requires proof that a tree has caused, is causing, or is likely in the near future to cause damage to the applicant’s property or to cause injury (s 10(2)). The Commissioner accepted photographic and on-site evidence that branches had grown through and against the fence and that some parts of the fence leaned into the applicant’s land, and concluded s 10(2) was satisfied for at least some trees. The Court therefore had power under s 9 to make any order appropriate to remedy, restrain or prevent damage or injury.
Balanced exercise of discretion under s 12. Section 12 lists matters the Court must consider when making orders under s 9, including tree health, environmental and amenity values, the extent of damage, and any other contributors to the damage. The Commissioner expressly recognised the trees’ amenity and ecosystem contributions (privacy, shading, biodiversity, soil stability), and that heavy pruning would likely reduce vigour, increase pest/disease susceptibility and shorten lifespan. That led to the conclusion that heavy pruning to the boundary would be disproportionate.
Dividing Fences Act apportionment. The fence’s age (in situ since c.1964) and timber composition were found to be the major contributors to its dilapidated state. Under s 7(1) of the Dividing Fences Act adjacent owners contribute equally to fencing work for a sufficient dividing fence. Because tree contribution was minor, the Court ordered equal sharing of replacement costs rather than placing sole liability on the tree owner.
Therefore the remedy combined a divided cost for fence replacement with limited, targeted pruning obligations on the tree owner to prevent contact with the new fence, avoiding the more drastic step of ordering clearance to or beyond the boundary.
Before and after state of the law
Before: The statutory framework and relevant authorities were already established. The Trees Act contained the s 10(2) threshold; the Dividing Fences Act s 7(1) required equal contributions for a sufficient fence; s 13A extended LEC jurisdiction to fences partly damaged by trees. Prior LEC authority had clarified that encroachment absent actual or imminent damage does not summon the Trees Act jurisdiction (Robson; Barker), and that 'near future' could be treated as roughly 12 months (Yang). Granger had observed that even relatively minor damage can engage jurisdiction.
After: This decision applies those established principles to a fact pattern where a timber fence, deeply aged and decayed, had also suffered some tree-caused contribution. Important takeaways that lower courts and practitioners can draw from this decision are:
The Court will find jurisdiction under s 10(2) where photographic and on-site evidence show branches penetrating or pushing the fence and there is a real risk of further damage in the near future.
Even where jurisdiction is established, the Court must balance remedial orders under s 12, considering tree health, amenity and ecosystem services. Heavy pruning to the boundary will be refused where it is not necessary to prevent damage.
Where a dividing fence is past its useful life and timber decay is the principal cause of failure, cost-sharing under s 7(1) is appropriate, even if trees have contributed in part.
Thus the decision confirms and illustrates existing doctrine rather than changing it.
Key passages with plain-English translation
Select Court formulations and what they mean in practice:
"Therefore s 10(2) of the Trees Act is satisfied ... and the Court therefore has the jurisdiction to make orders both under the Trees Act and under s 13A of the Dividing Fences Act."
Plain English: The Court found enough evidence that the trees caused or would soon cause damage, so it can make orders about the trees and about replacing the fence.
"While there has been a minor contribution of the respondent's trees to the dilapidated state of the timber dividing fence, the main reason for its condition is its age. As previously stated, the parties are to equally share the cost of its replacement with a standard timber fence."
Plain English: The fence is mostly falling apart because it is old and rotten, not because of the trees. Both neighbours must equally pay for a new standard fence.
"The pruning sought by the applicant would be detrimental to the health of the trees ... the extent of repeated pruning required ... would very likely progressively lead to reduced vigour ... and a shortened lifespan."
Plain English: Cutting the trees back hard would hurt their health and the benefits they provide; the Court will not order that unless necessary.
"There is no requirement for removal of branches encroaching over the carport, unless they are also causing damage, or are likely to cause damage in the near future."
Plain English: Just because branches hang over a neighbour's structure does not automatically justify cutting them; actual or likely damage is the key.
These passages clarify the Court’s approach: jurisdiction requires damage or imminent damage; remedies must be proportionate and account for environmental and amenity considerations.
What fact patterns trigger this precedent
This decision is directly relevant where:
A long-standing timber dividing fence shows extensive age-related decay, but tree foliage from an adjoining property has at times grown through or pressed against the fence.
Photographic evidence and an on-site inspection reveal branches penetrating palings, brushing or leaning the fence, and the prospect of further contact within a definable 'near future' (the Court used a 12-month practical rule of thumb from Yang).
The tree-owner’s vegetation provides amenity/ecosystem benefits (privacy, shading, biodiversity) and heavy pruning could significantly harm tree health.
The applicant seeks both pruning/remedial orders and contribution or replacement of the fence.
Practically, this authority supports orders for fence replacement with equal cost-sharing where fence age is the dominant cause, coupled with limited, targeted tree maintenance orders (clearance above the fence and removal of branches contacting structures), rather than ordering radical crown reduction or removal back to the boundary.
How later courts have treated it
This decision itself cites and applies earlier LEC authorities: Robson (principles on encroachment and nuisance), Barker (urban tree-dispute expectations), Yang (12-month 'near future'), and Granger (minor damage can still engage jurisdiction). The present judgment follows those authorities: it applies the Robson distinction between encroachment that causes damage and mere annoyance, adopts the Barker principle of reasonable urban tolerance for ordinary tree detritus, and uses the Yang timeframe as a practical guide.
Subsequent courts (not detailed here) would treat Ricco v Ricco as a fact-specific application of those principles. Its value to later courts lies in its practical balancing of tree-health/environmental considerations under s 12 against damage prevention and in emphasising that long-term timber decay can outweigh tree contribution in apportioning fence-replacement costs.
Still-open questions
Ricco v Ricco resolves the dispute on the facts, but some recurring issues remain unresolved as legal questions suitable for general principle refinement:
Quantifying ‘minor’ versus ‘substantial’ contribution by trees. The decision applied qualitative assessment; parties would benefit from clearer guidance on thresholds or evidentiary standards for apportionment where both age-related decay and tree encroachment exist.
Precise definition of 'near future.' The Commissioner used Yang’s 12-month rule of thumb. That remains a practical guide rather than a legal definition; uncertainty persists in close cases where likely damage lies beyond or within such a horizon.
Standards for acceptable clearance and maintenance. The Court ordered a 500mm clearance above the top of the fence; this is a pragmatic, case-specific measure. Future disputes would benefit from an evidence-based standard (taking tree species, growth rates and local practice into account) to reduce contested outcomes.
Recovery of preparatory costs (such as arborist reports) in on-site determinations by Commissioners. The Commissioner noted lack of power to order such reimbursement in this forum. Whether procedural avenues can be streamlined for low-value monetary claims arising from tree disputes is a systemic question.
Interaction with local council advice and private pruning rights. Both parties had spoken to council officers about trimming up to a certain canopy percentage; how council guidance should be weighed in s 12 analysis remains a practical consideration rather than a settled legal point.
In sum, Ricco v Ricco is a practical application of settled LEC tree-dispute law: it confirms jurisdictional thresholds, endorses proportionate remedies that protect tree health and community amenity, and affirms equal cost-sharing where fence age is the principal cause of failure. Practitioners should rely on careful photographic and on-site evidence, robust arboricultural input on likely damage trajectories, and prepare to address s 12 environmental and amenity considerations when seeking or opposing drastic pruning orders.
Judgment (10 paragraphs)
[1]
Background
The applicant, Mr Gerardo Ricco, shares a side boundary with a property owned by the respondent, Mr Luigi Ricco, in Hornsby. The dispute is based on damage to the boundary fence, allegedly caused by the respondent's trees, and issues that the applicant has with overhanging branches from these trees, which are located near the common property boundary. This boundary runs from north to south, and both the primary house on the applicant's property, and the respondent's house, face the street to the south.
In an attempt to remedy damage that the trees have caused, are causing, and are likely to cause in the near future, and risk of injury, Mr Gerardo Ricco made an application, pursuant to s 7 of Pt 2 of the Trees (Disputes between Neighbours) Act 2006 (the Trees Act). He is also seeking an order pursuant to s 13A of the Dividing Fences Act 1991, as noted at question 17 of his application.
[2]
The on-site hearing
The on-site hearing was attended by both parties, along with the respondent's wife. Forty-six early mature Syzygium paniculatum (Brush Cherry) (the trees), about five metres high, are growing in the respondent's yard close to and parallel to the common boundary. They form a dense hedge. A clump of Banana trees is growing at the northern end of each property, and across the common boundary.
The 58-metre timber dividing fence between the properties has been in situ since about 1964. It is in poor condition, with indications of extensive wood decay. At various locations along the fence, straps and stakes have been used by the respondent, in attempts to keep it erect, and fit for purpose. The respondent claims that the applicant has resisted replacing the fence along their common boundary for many years.
The applicant's property has been leased to tenants since he took ownership in 2006. In 2017, the applicant added a second smaller dwelling at the rear of the property, and this is also tenanted. The respondent has resided at his property since 2006.
[3]
The applicant's case
The applicant claims that branches from at least some of the trees are growing through the fence, and that branches are also pushing the fence over, and damaging it. He also notes that tree branches are growing over and under his carport, near the front of the property. He is concerned that the fence may fall onto his land, and in doing so, may lead to damage to cars or other property, or injury to his tenants, including children.
The applicant's initial claim included only the five-metre section of fence at the front of the property, damaged in 2012 by a car accident, but during the hearing, he extended this claim to the entire fence.
He also seeks that branches of the trees which are overhanging and encroaching are pruned back away from his property. The applicant's preference is for the trees to be maintained at, or beyond the fence-line within the respondent's property, right up to their full height, and he seeks that the respondent carry the financial burden for the required works.
[4]
The respondent's case
The respondent seeks replacement of the fence in its entirety, and claims to have been trying to replace it since the common front fence was damaged by a car in 2012.
He also seeks compensation of $770.00 for the cost of an arborist report from Canopy Consulting, dated 2 June 2020.
The respondent claims that his trees have not damaged the fence, and that the poor condition of the fence results from normal wear and tear to be expected with a timber fence of such advanced age. He seeks a declaration from the applicant "that the trees the subject of this Application are not causing any damage to property or risk of injury to person and do not need to be trimmed or otherwise dealt with".
Both parties have spoken to Hornsby tree management officers. The respondent claims to have been advised that both parties can cut their own side of the vegetation up to a maximum of 10% of the canopy, but for more extensive work, both Council's and the tree owner's permission is needed.
[5]
Jurisdictional requirements and discretionary matters
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 Act applies that is situated on adjoining land.
The applicant has provided evidence that the requirement under s 8(1)(a) of the Trees Act: to serve notice to the respondent more than 21 days prior to the proceedings, has been satisfied.
He has also satisfied s 10(1)(a) of the Trees Act: to make a reasonable effort to reach agreement with the owner of the land on which the trees are situated, notwithstanding that the dispute has been protracted, and agreement has appeared remote. The applicant provided evidence of correspondence to the respondent from his property agent, along with a letter from the Community Justice Network noting the respondent's lack of response to a request to engage in mediation.
The next major test that is posed, by s 10(2) of the Trees Act, which states:
(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.
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. If orders are to be made, the Court must consider a number of discretionary matters in s 12 of the Trees Act.
Section 7(1) of the Dividing Fences Act provides that:
(1) Adjoining 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.
Section 13A of the Dividing Fences Act provides the Land and Environment Court (LEC) with the jurisdiction to make orders for the entirety of dividing fences that may be partly damaged by trees subject to the Trees Act and which meet the jurisdictional tests in s 10(2) in that Act. This amendment to extend the jurisdiction to the LEC was introduced in the Dividing Fences and Other Legislation Amendment Bill 2008 and the amendments came into force in July 2010.
[6]
The fence
In respect of the paling fence, I am satisfied that there is a contribution from the foliage of some of the trees, growing through, and against the fence, and causing or having caused damage. Therefore s 10(2) of the Trees Act is satisfied in regard to these trees, and the Court therefore has the jurisdiction to make orders both under the Trees Act and under s 13A of the Dividing Fences Act. The orders with respect to the trees are covered later in this judgment. The making of orders under s 9 of the Trees Act requires consideration of relevant matters in s 12.
Most relevant in this case is s 12(h)(i) - anything other than the tree that is contributing/ has contributed to the damage. In this matter, the age of the fence (more than 55 years old) and its material (timber palings) would seem to me to be the major factors contributing to its dilapidated condition. I am not satisfied that the fence has been damaged by a negligent or deliberate act of the respondent. If this were to be proven, s 8(1) of the Dividing Fences Act would require the respondent to be liable for the entire cost of the replacement of the fence.
Therefore, as this is a dividing fence well past its useful life, orders will be made in accordance with s 7(1) of the Dividing Fences Act 1991 and both parties will be required to equally share the cost of a replacement fence from the street to the rear boundary of both properties.
The applicant claims that the fence is also likely to cause injury to his tenants, if all or part of it should collapse and fall into his property. As the fence was supported with straps attached to some trees at the time of the on-site hearing, this risk currently appears to be low, and it will become negligible once the fence is replaced.
As noted above at [18], s 7(1) of the Dividing Fences Act requires adjoining owners to contribute 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 specifications in the quotation from Waikiwi Fencing, dated 25 May 2020, and supplied by the respondent, for a 1.8-metre-high standard paling fence with wooden posts, provides a reasonable basis for "a sufficient dividing fence". These specifications should be used as the basis for additional quotes procured by either party, with the addition of a price for the removal of banana trees to allow the northern section to be installed at and along property boundaries. Should either party opt for a fence of a higher standard, such as one with galvanised iron posts, they will be liable for any additional cost above that of the aforementioned standard paling fence.
[7]
The trees
Recent pruning of low tree branches has cleared them from impacting the fence at the time of the hearing. Additional pruning may be required to provide sufficient access for fencing contractors. Once the fence is completed, branches growing towards the applicant's property which emerge within 500mm of the top of the fence will also require pruning, so as to minimise the likelihood of future fence damage.
Though the applicant seeks that the trees be heavily pruned to clear them back at least to the fence line, and maintained at or beyond the boundary, there is no jurisdictional requirement, nor arboricultural basis for doing this.
In Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (Robson), Preston CJ addresses the issues of encroachment of branches, and annoyance or discomfort which they may cause. At [169]-[171] of Robson, his Honour notes,
"169 At common law, although damage is necessary to complete the cause of action in nuisance, the type of damage required varies depending on the kind of nuisance involved. For nuisances of the first kind, causing encroachment as by roots and branches of trees, actual damage to the land (including property attached to or inherent in the ground) must be proved: see paragraph 56 above. For nuisances of the second kind, causing physical damage, actual physical damage to land (including property attached to or inherent in the ground) is also required: see paragraph 67 above. For nuisances of the third kind, causing unreasonable interference with the use and enjoyment of the neighbour's land, however, no actual financial loss or injury to health need be involved. The damage consists of the annoyance and discomfort caused to the occupier of the neighbouring land, such interference being of a material character: Clerk & Lindsell on Torts,19th ed, Sweet & Maxwell, London, 2006, [20-27], p 1178.
170 The types of actual damage required at common law for nuisances of the first and second kind would also constitute "damage to property on land" within s 7 of the Trees (Disputes Between Neighbours) Act 2006, with the possible exception noted earlier (at paragraph 166) that damage to the surface layer of the land may not be damage to property on land.
171 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."
[8]
Conclusion
I have inspected the trees and the site and reached the following conclusions:
1. As s 10(2)(a) of the Trees Act is satisfied, the Court will make orders under s 9(1) of Pt 2 of the Trees Act to remedy this damage, caused as a consequence of the trees the subject of the application concerned.
2. While there has been a minor contribution of the respondent's trees to the dilapidated state of the timber dividing fence, the main reason for its condition is its age. As previously stated, the parties are to equally share the cost of its replacement with a standard timber fence.
3. Pruning is required to clear foliage from near the boundary line to facilitate the fence's replacement, and to maintain subsequent foliage growth so that it does not contact or push against the face of the fence.
4. The extent and nature of the damage caused by the trees is such that tree pruning works are not necessary or appropriate to clear foliage overhanging the applicant's property back to or beyond the common boundary. To do so would potentially jeopardise the health and longevity of the trees, and unnecessarily compromise the many environmental services which they provide.
[9]
Orders
The orders of the Court are:
1. Within 45 days of the date of these orders, the applicant is to obtain three (3) quotes for the replacement of the timber dividing fence of a standard not greater than the standard for a sufficient dividing fence including any works required for the installation of supporting posts. The quote is to be for the full extent of the fence from the street to the rear boundary of the parties' properties and is to include the removal of the existing fence, and of the Banana trees growing on and within one metre of either side of the common boundary, at its northern end. If either party wants a fence of a greater standard, the quote must clearly indicate the price for a standard fence and a separate sum for the higher standard fence. The party requiring the higher standard is to pay for 50% of the cost of the standard fence plus the full amount of all additional costs of the higher standard fence.
2. Copies of the quotes are to be provided to the respondent and the parties are to agree on the contractor. Should the respondent wish to, the respondent may obtain a separate quote for the same works within the same time frame and applying the same criteria. If the parties cannot agree on the choice of the fence contractor, the cheapest quote, which is based on the specifications used in the quotation from Waikiwi Fencing, dated 25 May 2020, from a fencing contractor who holds all appropriate insurances, shall be selected. The fence is to be replaced within 90 days of the date of these orders. The work is to be paid for by the applicant. The respondent is to reimburse the applicant 50% of the cost of the fencing works (as well as any additional costs of a higher standard fence if required by the respondent in accordance with Order (1)) within 14 days of the receipt of a tax invoice for the completed works.
3. The respondent shall, at his expense, maintain the trees so that future foliage growth does not contact or push against the face of the fence, and he must prune any foliage growing across the boundary so as to maintain a clearance of at least 500mm above the top of the fence. The respondent shall also, at his expense, prune any branches growing under or in contact with the applicant's carport roof or fascia, and maintain such clearance in the future.
4. Both parties shall allow access into their properties as required by fencing contractors to satisfy Order (1). Removal of timber and other materials from the old timber fence, including the banana tree refuse, shall be completed via the applicant's property.
[10]
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Decision last updated: 11 December 2020
Court ordered replacement of the entire timber dividing fence with costs shared equally (applicant to obtain quotes, respondent to reimburse 50%); respondent to maintain trees so foliage does not contact or push the fence and to prune to maintain 500mm clearance above the fence and to remove branches under the applicant's carport; removal of banana trees at northern boundary to allow fence works; commissioner declined to order heavy pruning to boundary or award the arborist report cost.
The respondent notes continued efforts to maintain the dilapidated fence in place over many years. He submitted that he pruned his trees progressively over time, so that branches did not push on the fence, and that tenants living in the applicant's property had also pruned some areas.
A photograph (photo) provided by the applicant, dated as from 2012, shows some small branches protruding through the fence, between palings. Photo C26 provided within the respondent's written submission, displays various branches growing through the fence, and a photo included in an arborist report by Canopy Consulting, dated 2 June 2020, displays some tree branches pushing and/or brushing the face of the fence, and areas of the fence leaning into the applicant's property. Prior to the on-site hearing, any such branches appear to have been removed. These photos provide evidence that at least some of the trees caused past damage to the fence located on the applicant's land.
Branches of trees located near the front of the property, were growing under and towards the carport roof. I am also satisfied that at least some of these branches are likely, in the near future, to cause damage to the applicant's property, where, in a guidance decision published in Yang v Scerri [2007] NSWLEC 592, in relation to damage, as a rule of thumb, the 'near future' is deemed to be a period of 12 months from the date of the determination.
While none of this damage may necessarily be significant, nonetheless, 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.
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.
Therefore, encroachment of branches over a common boundary does not invoke the Court's jurisdiction, if the trees are not also causing damage as defined in the Trees Act.
In this respect, the Court has published a Tree Dispute Principle in Barker v Kryiakides [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."
As stated above, s 9 enables the Court to make any such orders it thinks fit to remedy, restrain or prevent damage to property, or to prevent injury to any person. This requires consideration of the matters in s 12 of the Trees Act.
The trees are located in the respondent's property (s 12(a)).
The pruning sought by the applicant would be detrimental to the health of the trees, particularly over the medium to long term. While this tree species is reasonably tolerant of pruning, the extent of repeated pruning required to satisfy the applicant's claim would very likely progressively lead to reduced vigour, thinning foliage, reduced resistance to pests and diseases, and a shortened lifespan (subs 12(b2)).
The trees contribute to protection from the sun, and from wind, to the natural landscape and to the amenity of the respondent's property. Of particular significance is their role in contributing to privacy, of both the respondent, and the applicant's tenants, whose houses have windows facing the common boundary (subss 12(b3), (e)).
The trees are likely to make fairly significant ecosystem contributions, by providing food and shelter for fauna and thus contributing to local biodiversity (subs 12(d)). They are also likely to be providing benefit to soil stability, and to absorbing water and reducing run off (subs 12(g)).
Certainly much of the clump of Banana trees currently growing across and in close proximity to the northern end of the common boundary, will need to be removed to provide access for the fence's corner post, and orders will also be made for removal of any branches growing under the applicant's carport roof.
In accordance with both Robson, and the aforementioned Tree Dispute Principle at [20] in Barker, there is no requirement for removal of branches encroaching over the carport, unless they are also causing damage, or are likely to cause damage in the near future.
The respondent claimed compensation of $770.00 for the cost of an arborist report. Commissioners do not have the powers to award such claims. This claim would need to be pursued by notice of motion, and would be decided by the Registrar or a Judge of the Court.