Ta v The Owners of Strata Plan 77175

The on-site hearing

1. The hearing commenced with an inspection of the trees and the site from both properties, in the presence of Mr and Mrs Ta, Mr Donaldson, acting as the respondent's agent, interested residents of the respondent, and Nicholls AC observing. Mrs Ta acted as Mr Ta's Agent. Tree details and proposed orders are listed in the table below: Number and species Proposed orders Rationale for works T1 Eucalyptus saligna (Sydney Blue Gum) Remove Branch fell and damaged roof and fence. Fungal bracket on trunk. T2 Eucalyptus pilularis Prune and regularly maintain Branches may damage electricity wire, fence, and dwelling roof. (Blackbutt) Eucalyptus microcorys T3 (Tallowood) Prune and regularly maintain Branches may damage electricity wire, fence, and dwelling roof. T4 Eucalyptus saligna Remove Branch damage to roof tiles, sarking, battens, insulation, gutter guard. Risk of injury on dwelling roof. T5 Eucalyptus saligna Remove T6 Eucalyptus saligna Remove Trunk leaning on boundary tennis court fence and is a risk of injury. T7 Eucalyptus saligna Prune and regularly maintain Branches may damage boundary Tennis Court fence and cause risk of injury. T8 Eucalyptus saligna Prune and regularly maintain Branches may damage boundary Tennis Court fence and cause risk of injury.

Observations and submissions

1. Mr and Mrs Ta feared potential damage to their electricity service wire (Ausgrid cable) impacting essential medical equipment and expressed distress about the relocation required for pending dwelling repairs. They thus sought orders to prevent any similar situation in the future.
2. Unsurprisingly, Mr Donaldson endeavoured to minimise the respondent's liability for trees encroaching on neighbours' land and noted that the adjacent school maintained the respondent's overhanging branches at the school's expense.
3. Mr Donaldson contended the applicant had not supplied appropriate quotes, time stamp photographs, or other sufficient detailed evidence to support his claim. Mrs Ta said she was guided by the text of Q15 of the Tree Dispute Claim Details (Exhibit B) to include "copies of any relevant expert reports, quotes, invoices or receipts if necessary" but saw no benefit in including quotes as Mr Donaldson repeatedly confirmed that "our neighbour does not accept responsibility for the maintenance of their trees and liability for the damages to our property and risk of injury to us that are caused by their trees (Exhibit B, Q32)". The applicant also considered the supplied documentation in and attached to Exhibit B, sufficient to prove his case.

Jurisdictional requirements

1. With respect to s 7 of the Trees Act, 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 or trees to which this Act applies, that is situated on adjoining land.
2. The applicant provided evidence satisfying the requirements under s 8(1) of the Trees Act: to give at least 21 days notice of the lodging of the application and the terms of any orders sought to the respondent and to Council.
3. Section 9(1) of the Trees Act provides the Court with jurisdiction to 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/s the subject of the application. In accordance with s 9(2)(h), an order so made may require the payment of costs associated with carrying out an order under this section.
4. The applicant has 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 tree is situated. The application provided a chronology of extensive communication between the parties and attached copies of the same.
5. The next major test that is posed, by s 10(2) of the Trees Act, states: (2) The Court must not make an order under this Part unless it is satisfied that the tree concerned: (1) has caused, is causing, or is likely in the near future to cause, damage to the applicant's property, or (2) is likely to cause injury to any person.

Damage caused by the trees

1. I am satisfied that a major branch broke from T1 on 7 February 2024 and caused damage to Mr Ta's dwelling. I am also satisfied that the branch fell onto the boundary fence and caused minor damage, particularly a split top rail shown in the applicant's photograph annexed to Exhibit B and specified in the scope of works for repairs by the insurance assessor. As a consequence, s 10(2)(a) of the Trees Act is engaged.
2. I am satisfied that two branches extending from T1 far over the applicant's Ausgrid cable, one dead, and the other a wounded twisted live branch, are likely to cause damage in the near future, where, based on the Tree Dispute Principle in Yang v Scerri [2007] NSWLEC 592 (Yang); at [12]-[14], near future damage, as a rule of thumb, is considered to be a period of about 12 months. Four low branches extending over the Ausgrid cable from T3 are similarly likely to cause near future damage. Therefore, s 10(2)(a) of the Trees Act is engaged.
3. At Q9 of Exhibit B, the applicant noted, T1 "has bracket fungus growing in its trunk that stops nutrients from the soil from reaching its leaves and causes its branches, and eventually the whole tree, to die", but this is incorrect. A fungal bracket (or bracket fungus) is a fruiting body that emerges after consuming areas of the tree's wood, with dead heartwood usually prioritised. The passage of nutrients and water from the soil to nourish leaves occurs in xylem vessels relatively close to the outside of trunks and stems. Restriction of nutrient flows by wood decay is thus rare. Though the applicant implied the bracket fungus caused T1's branches to die, and to frequently drop near the Ausgrid cable, given that T1 appears healthy and vigorous, such a causal link is unlikely.
4. Further, the presence of a bracket fungus does not necessarily result in a tree requiring removal. The internal breakdown of wood by fungi is a normal process, to which healthy, vigorous trees react by producing extra wood in trunks and branches - effectively bulking up and strengthening - to compensate for reduction in structural integrity due to fungal decay. In inspecting the tree, I saw the fungal bracket emanated from deep within the trunk and the tree had distinctly thickened and strengthened around the bracket, and for some metres above and below. Therefore, regardless of the fungal bracket, I was satisfied the tree appeared structurally sound.
5. In Exhibit B, Mr and Mrs Ta detailed six episodes of multiple tile replacement between 2007 and 2022 due to tile breakage by branches falling from T4, located adjacent to the dwelling, and T5, which was a particularly large Sydney Blue Gum with its canopy extending over the applicant's dwelling from beside the tennis court.
6. Though the dwelling may also be impacted by deadwood blown from a large old Sydney Blue Gum growing in the applicant's front yard, I am satisfied that branches falling from T4 and T5 have broken tiles and caused cumulative damage which is to be repaired under the applicant's insurance claim. Consequently, s 10(2)(a) of the Trees Act is again engaged.
7. Considering photographs annexed to Exhibit B, of large branches being cleared from the boundary tennis court fence in 2015, and the condition of the fence, I was satisfied that a top section of the fence had been damaged by branches which likely fell from T5 or T6, and the fence's tension had been compromised. Over time, the thickening trunk of T6, another particularly large Sydney Blue Gum, had contacted the boundary tennis court fence and bent a post and fence section towards the applicant's land.
8. While this damage was minor, nonetheless, the Court's decision in Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285 (Granger), 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) of the Trees Act, but it can be relevant in determining what orders, if any, should be made.
9. Though Mr Ta contended that the impact from branches falling from T7 and T8 "can cause damage to our tennis court fence", the application noted two past incidents of such damage, in 2015 and 2021. Considering this, and the apparent sound structural condition of the trees, I am not satisfied that tennis court fence damage is probable during the coming year.
10. Further, I am not persuaded by the claim that T6 is likely to fall in a storm and cause damage and injury. Mr and Mrs Ta provided no evidence to substantiate this notion, other than the trunk of T6 having a lean, and I saw no indications around the tree's base that aroused stability concerns.

Risk of injury to persons

1. While assessment of damage under the Trees Act relates only to the applicant's property, consideration of injury can relate to other areas surrounding the tree. In Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152, at [175]; Preston, CJ said, in effect, that the applicant's concern about likely injury can be but does not necessarily have to be injury to a person who would be on the applicant's land. Orders have been made for the removal or pruning of trees on the basis they may cause injury to persons on the respondent's land, as in Reuben v Lace [2010] NSWLEC 1024.
2. Two large dead branches in the lower canopy of T1, which extended over the adjacent street, footpath, and the entrance to the respondent's driveway, presented a risk of injury to persons.
3. The Court considers the risk of injury 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 (McPherson v Lake [2017] NSWLEC 1081; at [10]).
4. T1 had previous branch failure, the two dead branches were large and long, and there was a moderate level of pedestrian activity on the footpath below associated with a popular park across the road. While the risk of injury is relatively low, it is sufficient to engage s 10(2)(b) of the Trees Act.
5. Considering the risk of injury claim arising from Ausgrid cable damage, while I acknowledge the applicant's concern regarding continuity of power for medical devices, no appropriate medical evidence was submitted to substantiate or clarify the claims. Further, I am not satisfied that the claimed risk of electrocution, "by being hit by the (broken) live wire or accidently stepping on it", is likely.
6. I am not satisfied that there is a genuine risk of injury from T4 and T5 to tradesmen/ handymen working on the applicant's roof, nor to people inside Mr and Mrs Ta's dwelling. In their submissions, Mr and Mrs Ta reported one incident of major dwelling roof damage, that of February 2024, during almost 20 years of occupation. The trunks and live branches of T4 and T5 appeared structurally sound, and deadwood spread amongst the canopy above the dwelling was insufficiently large or profuse to present a genuine risk of injury to workers on the roof. Risk of injury to people within the dwelling is low as they are protected by the dwelling's structure.
7. Lastly, the applicant contended that T4 - T8 presented a risk of injury for people "playing/ working on our tennis court". Though the canopies of T5 - T8 overhung the tennis court, Mr and Mrs Ta reported only two historic branch failures from these trees, in 2015, and 2021, with no resultant tennis court surface damage. No past injuries from branches were reported. Mrs Ta acknowledged that Mr Ta no longer played tennis on the court, and besides a handyman occasionally tidying the area, the tennis court was rarely occupied. For these reasons, I am not persuaded that T4 - T8 present a genuine risk of injury to people on the tennis court.
8. Though some of Mr Ta's claims did not engage the jurisdiction, s 10(2) of the Trees Act is satisfied by damage caused by T1, T5 and/or T6, likely near future damage due to T1, and T3-T5, and risk of injury due to T1.
9. With s 10(2) satisfied, I have jurisdiction under s 9 to make a wide range of orders with respect to the trees. To determine, what, if any, orders should be made, the Court must consider relevant matters in s 12 of the Trees Act, as follows:

Discretionary matters - s 12

1. The trees are unevenly distributed along a narrow garden bed within the respondent's property, adjacent to the common boundary (s 12(a)).
2. In the absence of s 6(3) of the Trees Act, removal or major pruning of the trees would require approval under the Environmental Planning and Assessment Act 1979, as administered by Council. Under Councils' Tree and Vegetation management policies in Ku-ring-gai Development Control Plan 2024, the trees' size and age alone would likely result in Council resisting any application for removal or major pruning (s 12(b)).
3. Though they appeared healthy and structurally sound, T5 - T7 were very old specimens that may predate local white settlement and T1, T4, and T8 were also long established. While pruning of deadwood causes little detriment to tree health, with such aged trees, removal of live foliage should be minimised (s 12(b2)).
4. The trees provide privacy and protection from sun and wind. Many serious storms have impacted the area over recent decades but there was little indication of wounding on the trees suggestive of major branch damage or even widespread minor damage. Though the applicant focused on risk from falling branches, paradoxically, this row of trees would provide a barrier that is likely to slow and modify prevailing southerly and south-westerly winds and protect buildings and yards from damage that is likely to otherwise result from extreme winds. Readily available evidence supports this notion, and obvious examples are windbreaks, and large trees planted around dwellings in exposed rural areas. The trees contribute to the natural landscape and the scenic value of the land on which they are situated, and the locality concerned. They soften the impact of buildings on both parties' properties, and provide considerable public amenity to surrounding residents, and park users (subss 12(b3),(e) and (f)).
5. The contribution of the trees to the local ecosystem and biodiversity cannot be overstated. The common boundary appeared to run along a former watercourse that opened into bushland across the road. A combination of fertile clay soils transported from higher ridges, the areas' relatively high rainfall, and good fortune, resulted in T4 - T8 growing to be very tall, broad canopied trees, which appeared healthy and in good structural condition, even though T5 - T7 were probably aged well over a century. All but T2 and T3 were long established trees. Eucalyptus saligna is a key emergent species of Blue Gum High Forest Critically Endangered Ecological Community (CEEC) in the Sydney Bioregion, pockets of which remain nearby. T5 - T7, particularly, were outstanding representatives of this species. All the trees are likely to provide food and habitat for native fauna, particularly the Eucalyptus saligna and Eucalyptus pilularis, as they are endemic to the region (s 12(d)).
6. The trees are likely to improve soil structure and stabilise soils (s 12(g)).
7. With respect to alleged property damage by the applicant, subss 12(h)(i) considers anything, other than the trees, 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.
8. In Black v Johnson (No 2) [2007] NSWLEC 513 (Black), the Court has published a tree dispute principle which says, in summary, that the fact that the tree was there first should not impact on whether or not some order should be made about the tree but, subject to a range of matters discussed in the principle, the prior existence of the tree may be a relevant matter to be considered when deciding who should meet the cost of carrying out any orders which the Court might make. Although it is likely that T4-T8 were well established upon the construction of the Ta's dwelling, one of the matters discussed in the principle is whether "the choice of location for the structure was unnecessary or avoidable or, on the other hand, if it would have been an unreasonable constraint on the development potential of the site had the existence of the tree limited that potential".
9. The large mature Sydney Blue Gum inside Mr and Mrs Ta's front boundary which overhangs much of the applicant's front yard would also have been well established when the applicant's dwelling was constructed. Considering the cumulative canopy overhang from T4 - T7, and from the canopy of the Ta's aforementioned large Sydney Blue Gum, I am satisfied that the location of the applicant's dwelling was reasonable and was likely to have less branch encroachment impact than alternative location options. Consequently, I am not satisfied that the tree dispute principle in Black applies here.
10. Section 12(j) considers such other matters as the Court considers relevant in the circumstances of the case, and Mrs Ta noted the maintenance burden arising from the tree debris. This is addressed in Barker v Kyriakides [2007] NSWLEC 292 (Barker), which, at [20], established the Tree Dispute Principle: "20 It is now appropriate to state these in a more specific form as a principle which may be applied when considering urban trees and ordinary maintenance issues arising from them. We state the principle in the following terms: "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. 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.""

Conclusions

1. In the second reading speech to Parliament in 2006, the NSW Attorney General, the Honourable Robert Debus, noted the Trees Act "must consider environmental factors in recognition of the importance of urban trees as an environmental asset". Considering the size, age, and ecological significance of the trees in this case, especially as a group, and their overall sound structural condition, the option of tree removal shall be an order of last resort.
2. Orders shall be made for pruning of the two large dead branches from T1 over the footpath to mitigate risk of injury, and specified branches extending over the applicant's Ausgrid cable from T1 and T3. Though the respondent sought to deflect liability for tree branches overhanging neighbours' land, where damage or injury arising from such branches is foreseeable, as is the case with the large dead and damaged branches over the Ausgrid cable, the respondent has a duty of care to mitigate such damage, at its expense.
3. Orders shall be made for pruning of deadwood larger than 20mm diameter at the branch collar from areas of the canopies of T4 and T5 overhanging the applicant's dwelling, and for annual maintenance pruning of the same. Though it is a normal occurrence for dead branches to fall from trees, the respondent had, during more than 15 years of the applicant's occupation, undertaken no maintenance of the branches of T4 and T5 extending high over the applicant's dwelling. I am thus satisfied that damage to the applicant's dwelling due to dropping dead branches is foreseeable, so the respondent shall pay the cost of works to mitigate future damage.
4. Orders shall be made for fence repairs, modified from the insurance scope of works. As specified, a top fence rail about 5.8 m long shall be replaced but repairs to bring the fence to a reasonable condition do not require the extent of fence palings and top capping replacement specified in the insurance scope of works. As the fence damage was caused by branch failure from the respondent's tree, the works shall be undertaken at the respondent's expense, as is conventional under the Trees Act.
5. With respect to tennis court fence damage attributed to branches from T5 or T6, the Court has held that s 14(1)(d) of the Limitation Act 1969 applies to compensation claims under the Trees Act. The consequence is that there is a general six-year time limit, as from the date of filing the application for compensation claims for past damage to an applicant's property. As the applicant noted the fence damage occurred in 2015, the six-year time limit for compensation has expired.
6. I am not satisfied that orders are appropriate to remedy the tennis court fence post bent by the thickening trunk of T6. The extent of bending was relatively minor and had little apparent impact on the strength or security of the fence. The tennis court was rarely used. Though Mr Ta proposed removal of T6, such intervention is disproportionate to remedy minor impact on the post of the relatively old fence. As noted in Granger, whether the damage is minor or major can be relevant in determining what orders, if any, should be made. As any attempt to straighten the fence may unnecessarily damage the trunk of T6, no orders shall be made.
7. While mitigation of genuine risk and likely damage by trees must be prioritised by the Court, determination of such risk and damage propensity must be supported by sound evidence. Though I acknowledge the applicant's distress and concern about the respondent's trees, removal and substantial pruning of the trees proposed by the applicant has not been justified by the evidence submitted, or the overall sound structural condition of the trees.
8. The applicant's proposed orders would create a detrimental impact on the natural landscape and scenic value of the land on which the trees are situated, on the trees intrinsic value to public amenity, and on the local ecosystem and biodiversity.

Orders

1. The Court orders that: 1. The respondent, at its expense, shall engage Australian Qualification Framework (AQF) level 3 arborists, with all appropriate insurances (the arborists), to complete the following works within 60 days of the date of these orders: 1. Prune 2 large low dead branches from T1 overhanging the adjacent footpath and respondent's driveway. Prune 1 long dead branch and 1 long damaged twisted live branch extending over the applicant's Ausgrid cable from low on T1, to the branch collar. 2. Prune 3 large dead branches and the 3 lowest live branches extending over the applicant's Ausgrid cable from low on T3, to the branch collar. 3. Prune all deadwood larger than 20mm diameter at the branch collar from areas of the canopies of T4 and T5 which overhang the applicant's dwelling. 4. Replace the damaged top fence rail about 5.8 m long on the common boundary timber fence and replace damaged palings or fence capping along this fence section, as required. 1. In 2025, and in each subsequent year, during the month in which the works in Order (1)(c) were completed, the respondent, at its expense, shall have arborists who meet the requirements of Order (1), prune all deadwood larger than 20mm diameter at the branch collar from areas of the canopies of T4 and T5 which overhang the applicant's dwelling. 2. All tree works shall comply with Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016, and all pruning shall also comply with the guidelines of AS 4373:2007, Pruning of amenity trees. 3. The applicant shall allow access to his property for undertaking any of the works, upon receipt of at least 72 hours' notice from the respondent, by email. 4. All works shall be completed 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: 16 September 2024