Roberts v Ho

Legislation Cited: Environmental Planning and Assessment Act 1979 Heritage Act 1977
Trees (Disputes Between Neighbours) Act 2006, ss 6, 7, 9, 10, 12, Pt 2

Cases Cited: Yang v Scerri [2007] NSWLEC 592

Texts Cited: Safe Work Australia, ‘Guide to managing risks of tree trimming and removal work’ (July 2016)

Category: Principal judgment

Parties: Mark Roberts (Applicant)
Check Keong Ho (First Respondent)
Yvonne Kit Yee Ho (Second Respondent)

Representation: Counsel:
M Roberts (Self-represented) (Applicant)
J Ho (Agent) (First and Second Respondents)

File Number(s): 2025/146665

Publication restriction: Nil

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Background

1. COMMISSIONER**:** In March this year, a tree fell over on the Wahroonga property belonging to Check Keong Ho and Yvonne Kit Yee Ho. Their neighbours, Mark Roberts and Yvonne Roberts, then became concerned that another large tree on the Hos’ property might fall into their own property. When their efforts to get the Hos to remove the tree were unsuccessful, Mark Roberts applied to the Court seeking orders for the tree to be removed.

2. The hearing took place onsite, allowing me to observe the tree and both properties. The applicant was self-represented; the respondents did not attend the hearing, but their daughter, Jean Ho, represented them as their agent. I rely on my own arboricultural expertise and experience in making this decision.

Framework for this decision

3. Mr Roberts applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act). The tree is on land adjoining the applicant’s land. The orders he seeks are orders the Court can make at s 9 of the Trees Act.

4. Relevant issues to be determined in these proceedings are:

5. Whether the applicant has made a reasonable effort to reach agreement with the respondents and given the required notice of the application: s 10(1)(a) of the Trees Act?

6. Whether the Court can be satisfied 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 any person: s 10(2)?

7. How consideration of the relevant matters at s 12 of the Trees Act should influence any orders to be made?

Reasonable effort to reach agreement

5. Mr Roberts has written to the Hos but they refuse to take any action. I am satisfied that he has made a reasonable effort to reach agreement with the Hos and that the timeframe set down by the Court has allowed for the required notice of the application.

Whether the tree is likely to cause damage or injury

6. The parties have filed no arboricultural evidence. Mr Roberts submits that:

7. the tree grows in a similar environment to the tree that fell over on the Hos’ property in March;

8. the tree leans toward his property and overhangs his property;

9. winds blow predominantly from the east, further increasing the likelihood that the tree will fall onto their property and hit their dwelling;

10. the tree is likely to injure family members who spend time in the garden.

11. The Hos submit that:

12. an arborist inspects trees on their property, including the tree that is the subject of this application;

13. the tree is healthy and unlikely to fall;

14. all trees are different, so one cannot assume that this tree will fall just because another tree fell;

15. Mr Roberts has presented no evidence of the predominant wind direction;

16. Mr Roberts’ claim is not supported by any arboricultural evidence.

17. The Hos also allege that aerials and various communications infrastructure on Mr Roberts’ property were installed without permission. They asked the Court to ‘investigate the applicant’s installations accordingly.’ This is beyond the Court’s jurisdiction in this matter.

18. Relying on my own arboricultural expertise, I inspected the tree during the onsite hearing. The tree is a Eucalyptus paniculata (grey ironbark) approximately 25–30 metres tall with a stem diameter of approximately 80 cm. The tree is situated approximately two metres from the common boundary between the parties’ properties. The tree’s crown extends over the Roberts’ property. As the respondents submitted, the condition of the tree’s crown indicates it is relatively healthy. However, a tree’s health does not always reflect its structural integrity, nor its risk.

19. The tree’s stem is badly damaged at its base. On its northern side, a wound extending up the stem from ground level is approximately 40 cm wide. On its southern side, a larger wound extending up the stem from ground level is almost 80 cm wide. The exposed heartwood in both wounds appears relatively sound, such that stem failure is unlikely. However, with no live tissue in these wounds, the roots directly beneath each wound receive no nourishment from above, and are therefore dead. The lack of live roots around such a large portion of the tree’s stem, with no live roots at all to the tree’s north, leaves the tree prone to windthrow. Considering the tree’s height, its exposure to wind, and the condition of its roots, I find that windthrow failure is likely in the near future, being a period within the next 12 months: see Yang v Scerri [2007] NSWLEC 592 at [14]. The tree is most likely to fall into the Roberts’ property, where it would cause significant damage, including to their dwelling. Tree removal is the only option to significantly mitigate this risk.

Consideration of relevant matters

11. I have considered the matters at s 12 of the Trees Act and discuss here only those that are relevant.

12. The tree is close to the common boundary and would hit the Roberts’ dwelling if it fell in that direction

13. The tree’s owners would ordinarily require a permit from Hornsby Shire Council (Council) to remove the tree. They have not applied for a permit. Due to s 6 of the Trees Act, they are not required to gain Council’s consent under the Environmental Planning and Assessment Act 1979 or the Heritage Act 1977. Should they require any other consent, they must gain that consent before removing the tree.

14. This mature tree is of a native species that forms part of the local ecosystem. It provides ecological and environmental benefits, along with ecosystem services to the Hos and to the broader community. Despite this, the risk of the tree causing significant property damage can only be prevented by removing the tree.

15. The Roberts have not contributed to the risk through any acts or omissions of their own. Therefore, the tree’s owners will bear the cost of removing the tree, as is usual in such matters. The Court often allows 30 days for works such as this to be completed. For personal reasons, the respondents asked for 90 days, which seems excessive, so I have allowed 60 days.

Orders

16. The Court orders:

17. The application is granted.

18. The respondents are to engage and pay for a suitably insured and qualified (minimum AQF level 3) arborist to remove the tree (grey ironbark) to within one metre of ground level within 60 days of the date of these orders. They may leave a shorter stump, or remove the stump, should they wish.

19. Tree removal works in Order (2) are to be done principally from within the respondents’ property.

20. The works in Order (2) must be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.

21. The respondents are to give the applicant 7 days’ notice of the works in Order (2).

22. The applicant is to allow all access required for completion of the works in Order (2) including cleaning up debris during reasonable hours of the day.

23. The exhibits are returned, other than exhibit A.

……………………………….

D Galwey

Acting Commissioner of the Court

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