The Owners - Strata Plan No 17467 v The Owners - Strata Plan No 22319

Consent orders

1. Although the parties have reached some agreement in this dispute, filing consent orders they would like the Court to make, the Court must still consider the matter within the jurisdiction of the Trees Act to determine, firstly, if they are orders the Court can make, and secondly, that they are orders the Court should make in the circumstances. Sheahan J considered this in Breen v Caronna [2008] NSWLEC 293, and wrote at [14], [15]: "14 Thirdly, the submissions call on the Court to give effect to the overriding purpose in s.56 of the Civil Procedure Act 2005 ("Civil Procedure Act"), which provides that the Court must "facilitate the just, quick and cheap resolution of the real issues in the proceedings". The "real issues" here are not limited to those between the parties; once a suite of issues in a tree dispute comes before the court those issues expand to include whether or not the court is satisfied regarding the requirements of ss.10 and 12 of the relevant Act, which are far more detailed than the usual "just and equitable" test. 15 It may well be, as Dawson J said in Harris v Caladine (1991) 172 CLR 84 at 124, that "little more than consent may be needed", and/or, as Hodgson JA said in Bartlett v Coomber (at [72]), that the Court does not generally need "any significant investigation of the evidence", but that is a matter for the Court to assess in each case, and in the case of tree disputes the Act lays down a regime for that process of decision-making."
2. While the quickest path to resolving the current dispute may be to make the consent orders that the parties seek, the framework of the Trees Act must be applied.

The orders sought in the application

1. The application has been made pursuant to s 7 of the Trees Act. 7 Application to Court by affected land owner 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.
2. The five trees that are the subject of the application are on land adjoining the applicant's land. The applicant, being an owner of land, can apply for an order to remedy, restrain or prevent damage to property on the land. The use of "property on the land" after "[a]n owner of land" suggests that the orders sought must only apply to property on the applicant's land. The orders sought in both the original application, and then later by consent, include an order for repairing a retaining wall on the respondent's land. This will be considered further below.

Jurisdiction to make orders

1. The Court's jurisdiction to make orders is set out at s 9 of the Trees Act. 9 Jurisdiction to make orders (1) The Court may 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 the subject of the application concerned. (2) Without limiting the powers of the Court to make orders under subsection (1), an order made under that subsection may: (a) require the taking of specified action to remedy damage to property, or (b) require the taking of specified action to restrain or prevent damage or, if damage has already occurred, further damage, to property, or (c) require the taking of specified action to prevent injury to any person, or (d) require the making of an application to obtain any consent or other authorisation referred to in section 6 (1) (a), or (e) authorise the applicant concerned to take specified action to remedy, restrain or prevent damage or (if damage has already occurred) further damage to property, or (f) authorise the applicant concerned to take specified action to prevent injury to any person, or (g) authorise land to be entered for the purposes of carrying out an order under this section (including for the purposes of obtaining quotations for the carrying out of work on the land), or (h) require the payment of costs associated with carrying out an order under this section, or (i) require the payment of compensation for damage to property, or (j) require the replacement of a tree that the Court orders to be removed and for the new tree to be maintained to a mature growth.
2. The Court can make orders to prune and remove trees, such as those sought by consent orders (1)-(3). Although s 9 refers to property without any restriction to property on particular land, the sequence of these sections, with s 7 preceding s 9, suggests that the Court's jurisdiction to make orders is restricted to property encircled by s 7, being property on the applicant's land. Consent order (4) seeks repair works to property on the respondent's land. This is considered further below.

Matters of which the Court must be satisfied

1. Before making orders, including those sought by consent, the Court must be satisfied of certain matters at s 10 of the Trees Act. 10 Matters of which Court must be satisfied before making an order (1) The Court must not make an order under this Part unless it is satisfied: (a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, and (b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 8. (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.
2. Before orders can be made for any one of the five trees, the test at s 10(2) must be satisfied for that tree: see McDonnell v Harrison [2012] NSWLEC 1291 at [5].

Matters that must be considered

1. If the tests at s 10 are satisfied, the Court must consider a range of matters at s 12 of the Trees Act before determining the application. Consideration of these matters will inform the nature of the orders that the Court can and should make, and whether or not they can align with the parties' proposed consent orders.

Evidence

1. Evidence filed by the parties includes the following reports and documents:

• Arboricultural Root Investigation Report, by Jack Williams of Urban Arbor, 21/11/2023, prepared for the applicant (Exhibit B)
• Engineering Inspection Report, by Justin Elsusu of Noviion Engineering, 8/11/2021, prepared for the applicant (Exhibit C)
• Arboricultural Assessment Report, by Ross Jackson of Jacksons Nature Works, 6/04/2021, prepared for the respondent (Exhibit D)
• Arboricultural Advice, by Guy Paroissien of Landscape Matrix, 3/10/2018, prepared for the respondent (Exhibit E)
• Correspondence from North Sydney Council (Exhibit F and in Exhibit 1)
• Email from the engineer, Justin Elsusu (Exhibit G)
• Correspondence between the parties (Exhibit J and in Exhibit 1)
• Invoices for past tree pruning events (in Exhibit 1)
• An invoice for pipe clearing (in Exhibit A)

The trees

1. The tree numbering used in this judgment aligns with the numbering used in the application and in Mr Williams' report. This differs from the numbering used by Mr Paroissien and Mr Jackson. Tree heights shown below are taken from the application. They appear to me to be within 10% of actual heights. The arborists all gave different tree heights. From south (rear of the properties) to north, the trees are:

• T1 - Eucalyptus saligna (Sydney blue gum) approximately 31 metres tall;
• T2 - Eucalyptus saligna approximately 30 metres tall;
• T3 - Melaleuca quinquenervia (broad-leaved paperbark) approximately 10 metres tall;
• T4 - Melaleuca quinquenervia approximately 10 metres tall; and
• T5 - Eucalyptus saligna approximately 24 metres tall.

1. Mr Paroissien, who inspected the trees on 17 September 2018, described them as follows (Exhibit E):

• T1 has good health and high landscape significance; small deadwood is likely to fail; a fork in the stem should be monitored;
• T2 has good health and high landscape significance; small deadwood is likely to fail;
• T3 has good health and moderate landscape significance;
• T4 has good health and moderate landscape significance; roots are displacing the respondent's retaining wall; and
• T5 has good health and high landscape significance; small deadwood is likely to fail.

1. Mr Jackson assessed these trees and others on 4 March 2021. Although he recommended works (removal and pruning) of other trees, he recommended no works for these five trees (Exhibit D).

Reasonable effort to reach agreement

1. Correspondence in evidence (Exhibits A, J and 1) demonstrates that the parties discussed the trees and related issues over several years. Not only did they make a reasonable effort to reach agreement, as required by s 10(1)(a) of the Trees Act, they ultimately did reach an agreement, as reflected by their proposed consent orders.
2. The timeframe for the hearing also allowed the applicant to give notice required by s 10(1)(b).

Trees have caused, and are likely to cause, damage to property

1. The applicant claims that the trees have damaged property and will continue to damage property.

Tree roots have damaged the applicant's driveway

1. The applicant submits that all five trees are adjacent to its driveway and parking area and have damaged these paved areas and are continuing to damage them.
2. Mr Williams carried out root investigation on 16 November 2023 (Exhibit B). He found that a root of T2, 120 mm in diameter, has damaged the driveway (in 'Area 2') by lifting pavers. A 300-mm root of either T1 or T2 has lifted paving near the applicant's building ('Area 3'). A 410-mm root of T5 has lifted paving along the driveway ('Area 4'). A root from either T1 or T2, 80 mm in diameter, has lifted paving on the western side of the applicant's property ('Area 5').
3. Mr Williams found that trees on the applicant's property also caused some damage to their driveway: for instance, a root of a willow myrtle lifted paving in the south-eastern corner ('Area 1').
4. Mr Williams' report includes photographs showing the lifted paving, the excavation that was undertaken, and the roots that were observed. He provided a thorough description of the methodology and the findings.
5. Mr Elsusu, in his 'Engineering Inspection Report' (Exhibit C), found that tree roots have caused damage to the applicant's driveway. His inspection was visual only, with no sub-surface investigations. He did not identify which trees caused the damage.
6. The applicant submits that tree roots will cause further damage to its driveway, parking area and drainage if the trees are not removed.
7. The respondent submits that much of the damage can be attributed to natural degradation, as the applicant has allowed the driveway to deteriorate over time.
8. Relying on Mr Williams' report, I find that T2 and T5 have damage the applicant's property by lifting pavers in the driveway and parking area. T1 has possibly contributed to this damage, although I cannot be satisfied of this.

The respondent's retaining wall - whether orders can be made

1. The trees stand in a narrow garden bed along the respondent's side of the common boundary. The garden bed's surface is around the same height as the applicant's driveway on the other side of the boundary fence. A log retaining wall supports the garden bed's soil next to the respondent's own driveway, which is lower.
2. Mr Jackson found the retaining wall was displaced by trees T2-T5 (pp 5 and 7 of Exhibit D). Mr Paroissien found that roots of T4 are displacing the respondent's retaining wall. My observations during the onsite hearing confirmed that roots of T2-T5 have, to varying degrees, displaced the retaining wall.
3. Mr Elsusu found that tree roots have compromised the retaining wall. He did not identify which individual trees have caused damage. He opined that failure of the retaining wall is likely to compromise the applicant's driveway. That is, the trees are likely to damage the applicant's driveway by causing the respondent's retaining wall to fail.
4. Orders can be made to prevent damage to the applicant's property if the trees have caused, are causing, or are likely in the near future to cause, that damage. The retaining wall has not failed, nor is it failing. I accept that damage to the applicant's driveway resulting in the near future from failure of the respondent's retaining wall, should that failure be caused by roots of one of the trees in the application, would amount to damage caused by that tree. Following the tree principle established in Yang v Scerri [2007] NSWLEC 592 at [14], I consider that a period of the next 12 months represents the near future. Mr Elsusu only found the wall was compromised. He did not conclude that its failure is imminent, nor that it is likely in the near future. Although roots of the respondent's trees have displaced the retaining wall, the evidence does not satisfy me that the wall is likely to fail within the next 12 months. It follows that no orders can be made on this element of the application.
5. I note here that the respondent submits that it will proceed with repair works to the retaining wall regardless of the outcome here. The parties were seeking to formalise this agreement to ensure that the works are done. I further note that the agreed quote for the works, from All Hills Fencing, includes the following: "Cut out interfering tree roots where possible." While the Court makes no orders here for the retaining wall, it would be prudent for the respondent to obtain arboricultural advice should any roots need to be cut that close to the trees.

A falling tree branch damaged a car

1. The applicant submits that a branch fell from T1 and damaged a car on the driveway. Exhibit A includes a photo of the car and the branch. I accept that T1 has damaged property on the applicant's land.
2. The applicant submits that branches are likely to fall from any of the trees and cause damage in the near future. This element of the application is addressed below when I consider the risk of the trees causing injury.

Tree roots damaged a sewer pipe

1. The invoice of Piper's Plumbing (13 January 2022, in Exhibit A) relates to a blocked sewer pipe beneath the applicant's driveway, cleared at a cost of $922.63. The invoice includes the statement: "The cause of the blockage was due to tree roots coming in through a joint in the pipework." The applicant submits that it was a root of T2, relying on the proximity of the blockage to that tree.
2. I accept that a root of one of the trees, perhaps T2, blocked the pipe, but I cannot make any orders on this element of the application for three reasons. Firstly, although the original application sought an order for compensation of the pipe repair costs, the proposed consent orders, which supersede those in the original application, do not. Proposed consent order (5) states: "Note that the parties do not seek any additional orders." Secondly, the plumber stated that roots entered the pipe through a joint in the pipework. That is, the root did not break the pipe, but simply entered through an opening that was available. This is an issue of maintenance for the applicant. And thirdly, the respondent had no reason to anticipate the event and could not have taken reasonable action to prevent the unforeseen.

The boundary fence

1. The parties clarified in submissions that no orders are sought for the boundary fence as they are dealing with the fence regardless of the outcome here.

Whether the trees are likely to cause injury

1. The applicant submits that its driveway's uneven surface, a result of tree root growth, creates a trip hazard. The driveway is an emergency exit route for residents in case of fire, so the trip hazards must be removed.
2. Although the driveway surface is uneven, it is still being used by pedestrians and vehicles. The applicant did not suggest that anyone has tripped, so I am not satisfied that anyone is likely to do so in the near future. No orders can be made on this element of the application.
3. The applicant submits that branches could fall from any of the trees and cause injury. Mr Jackson noted minor deadwood within the trees but recommended removal of deadwood from T1 only. Mr Paroissien observed that none of the trees had signs of large-diameter branch failure. He observed the presence of minor deadwood in the trees' crowns and recommended its removal.
4. The applicant submits that a long branch of T5 extends above the applicant's building and poses a risk of damage and injury. The applicant's plan at question 2 of the claim details form (Form H in Exhibit A) shows T5 is the northernmost tree. At question 9 of Form H the applicant cites Mr Paroissien's findings in regard to this tree, but Mr Paroissien's comments relate to his 'Tree 6', which is T2 in the application and in this judgment.
5. Mr Roberts submitted for the respondent that the respondent understands the seriousness of the risk of deadwood falling from the trees. The respondent engages an arborist to carry out an annual inspection of the trees and to undertake any necessary works for risk mitigation, as shown by invoices in Exhibit 1. Before Mr Roberts became involved, it seems that annual pruning focussed on branches over the respondent's property. Since becoming involved, Mr Roberts has ensured that pruning mitigates the risk over both properties. The respondent provides the arborist with instructions to remove deadwood and hazardous branches from all trees and to maintain their crowns.
6. From the respondent's point of view, past issues around the risk of falling branches are now resolved. Mr Spry submitted for the applicant that, while the applicant appreciates the ongoing inspection and pruning of the trees, they want the arrangement formalised via orders from the Court.
7. Considering recent history and the current situation, it seems reasonable to expect that the respondent will continue the annual tree inspection and maintenance routine. Therefore, I find it unlikely that deadwood will fall and cause injury in the near future.
8. Applying my own arboricultural expertise, I observed during the onsite hearing the branch of T2 referred to by Mr Paroissien. I noted the overextended nature of low branches on the western side of the tree's crown, and particularly the long branch to the north-west extending toward the applicant's building. Failure of one of these branches is likely in the near future, and damage or injury would likely result. Therefore, the Court can make orders on this element of the application.

Consideration of relevant matters before making orders

1. I have found, above, that orders can be made on some, but not all, elements of the application: roots of T2 and T5 have damaged the applicant's driveway; a branch of T1 damaged a car on the applicant's land; and T2 is likely to cause damage or injury by way of hazardous branches falling onto the applicant's land.
2. Before making any orders, the Court is to consider the matters at s 12 of the Trees Act. I consider relevant matters below.
3. The trees are alongside the common boundary (s 12(a)). The root buttress of T5 extends slightly across the boundary. The trees' crowns spread over both the applicant's and respondent's properties. They overhang the applicant's driveway, parking area and building. Roots of all five trees spread into the applicant's land.
4. The Court is to consider whether interference with the trees would, in the absence of Court orders, require consent under the Environmental Planning and Assessment Act 1979 (the EP&A Act) or the Heritage Act 1977 and, if so, whether such consent has been obtained (s 12(b)). To remove the trees, or to prune them significantly, the respondent would ordinarily require consent from Council. All five trees are 'declared trees' according to the North Sydney Development Control Plan 2013 (the DCP). Removal of deadwood, and other minor pruning for tree maintenance, would not require Council's consent. The respondent applied to Council to remove all five trees in 2022. The application included the reports of Mr Jackson, Mr Paroissien and Mr Elsusu. Council refused the application. In Council's response refusing the application (Exhibit F), Tree Preservation Officer Melanie Hamilton wrote: "I refer to your application to remove 5 trees on the Western boundary line of 12-14 Bay Road, Waverton (SP 22319). The arborists report submitted with the application (Jacksons Nature Works dated 6 April 2021 & Landscape Matrix dated 21 September 2018) confirm that the trees are healthy specimens and do not recommend their removal. The Engineers report (Noviion Engineering dated 8 November 2021) confirms subsidence to the existing paved driveway at 16 Bay Road, Waverton. However, North Sydney Council does not approve the removal of healthy trees that are protected by the Tree & Vegetation Management policy because the roots are lifting paved surfaces. Paving stones are placed on a sand bed and roots from vegetation grow under the pavers. The solution to this common [sic] is to prune the surface roots (with guidance from an independent Arborist) or build a driveway on elevated piers so that the roots can grow under them. The reports confirm that the damage to the wooden retaining wall within your property is due to poor construction and the exertion of the surface tree roots. The report from Landscape Matrix provides recommendations for tree protection and structural root zone of the trees during the necessary repairs."
5. The only additional report available to the Court that was not available to Council in 2022 is Mr Williams' root investigation report. That report demonstrates the situation that was assumed and considered by Council at the time: that tree roots have disrupted the applicant's paved driveway and parking area.
6. When determining an application for a Tree Management Permit, Council must consider (Provision 3 of Clause 16.2.2 of the DCP): "(a) the health or condition of the tree or trees, whether the tree is dead or dangerous, its proximity to existing or proposed structures, interference with utility services, interference with the amenity of any person or property; (b) the necessity for action in order to construct improvements to the property the subject of the application to achieve reasonable development; (c) the effects in the nature of erosion, soil retention or diversion or increases to overland flow; (d) the number of trees in the surrounding area and the effect on the amenity of that area; (e) the number of healthy trees that a given parcel of land will support; (f) whether the trees or vegetation in question provide habitat for fauna and/or canopy connectivity; and (g) any potential impacts to heritage items and/or heritage conservation areas."
7. According to Provision 5(c), "Council does not support the removal of trees or vegetation as a result of… cracking of driveways, footpaths, paving or fences." This is followed by some exceptions described in Provision 6: "Despite P5 above, Council may consider on merit the removal of trees or vegetation which result in the blocking of water, sewer or stormwater pipes or the cracking of driveways, footpaths and paving if there are no permanent repair solutions available (e.g. where tunnelling or re-sleeving of pipes, or removal of roots is not feasible). Council must not determine an application to which this clause applies, unless it has considered additional supporting documentation (e.g. an arborist report prepared by a qualified arborist with a minimum AQF Level 5 or engineering report) supplied by the applicant to justify the removal of the tree or vegetation."
8. Council followed the process set out in the DCP when refusing the application for tree removal. It is important to note here that the Trees Act requires the Court to consider this. Were there no dispute - for instance, if the trees and paved driveway were all on the one property - the owner would need to proceed with alternatives to tree removal such as those suggested by Council.
9. Council considered the additional supporting documentation provided by the respondent and determined that reasonable alternative repair solutions that would allow tree retention were available. With the benefit of my onsite observations and Mr Williams' root investigation report, I would not order works that include pruning of surface roots. However, considering the nature of the paved driveway and carparking area, the paved driveway and parking area could be repaired without the need for expensive engineering solutions.
10. Mr Elsusu recommended removing all trees and their roots to allow repair of the driveway and to prevent damage to the building. If the trees were retained, he recommended a driveway on piers to protect roots. He wrote (p 6 of Exhibit C): "It is important to note that any driveway situated on the ground without the removal of the trees will result in cracking, uplifting and subsidence of the driveway." The applicant referred to standards and codes for new driveways and drainage, but presented no evidence to show that these would apply to repair of the existing driveway.
11. The respondent submits that the driveway could be repaired by removing pavers, levelling the soil over tree roots, and relaying the pavers. I agree with this. A driveway supported by piers is not required. While Mr Spry opined that a permanent solution is needed, Mr Roberts argued that some reasonable future maintenance should be accepted. The costs and consequences of relaying the driveway over roots need to be weighed against the benefits of the trees, which I consider further below.
12. Pruning T2 to remove hazardous branches would not adversely affect that tree (s 12(b2) of the Trees Act). The ongoing crown maintenance of all five trees, including deadwood removal, would have no negative impacts. The respondent once proposed pruning all branches of all five trees back to the boundary: that would adversely affect the trees' health, viability and amenity.
13. The trees contribute to protection from sun and wind and they enhance the amenity of the respondent's property (s 12(b3)). They provide considerable ecosystem services including cooling, reducing water run-off, carbon sequestration and pollutant removal.
14. The trees are indigenous to the area and contribute to the local ecosystem and biodiversity (s 12(d)).
15. Being so tall, the trees contribute significantly to the respondent's natural landscape (s 12(e)) and to public amenity (s 12(f)).
16. The trees' overall benefits are significant, and warrant some additional costs for their protection. The EP&A Act recognises the value to the broader community of vegetation on private land by providing the means for its protection. While it is usually a tree owner that bears some cost for this, others in the broader community may also bear some cost, including neighbours such as the applicant in these proceedings.
17. The respondent submits that the applicant has let the driveway degrade over time (ss 12(h) and 12(i)). I observed that the driveway has received little maintenance. The applicant has not taken steps to mitigate trip hazards. Trees on the applicant's land have also contributed to the driveway's current condition.
18. The respondent has established a routine for having the trees inspected and maintained by an arborist. The Court notes this arrangement and relies on the respondent's submissions regarding its commitment to continue the arrangement. Other than orders to mitigate specific hazards identified earlier in this judgment, I see no need for Court orders for ongoing tree maintenance and risk management.

Conclusions

1. Despite the consent orders put to the Court, the framework of the Trees Act must be applied in these proceedings. For reasons explained above, I find that the Court cannot make the consent orders as proposed. Orders can be made to remedy, restrain or prevent property damage, or to prevent injury, where the Court is satisfied that a 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. That test must be applied to each tree individually.
2. Orders cannot be made to repair the respondent's retaining wall. The Court notes that the respondent explained that they will repair the wall regardless of the outcome here.
3. Damage that has been caused to the applicant's driveway enables the Court to make orders for its repair and for interfering with trees T2 and T5. For reasons set out above, no orders will be made on this element of the application. The driveway consists of loose pavers. They can be lifted, and soil levelled over tree roots before replacing the pavers. This seems to be reasonable property maintenance that the applicant, to now, has not carried out.
4. Regarding the likelihood of damage or injury resulting from falling branches, I have found that orders can be made for T2 only. Those orders I make below.

Orders

1. The Court orders: 1. The application to remove trees and repair property is refused. 2. The application is granted only to the extent of the following orders. 3. The respondent is to engage and pay for suitably insured and qualified (minimum AQF level 3) arborists to carry out the following works within 60 days of the date of these orders: 1. prune T2 to remove low, overextended branches to the west and northwest over the applicant's property. 1. The works in Order (3) are to be done in accordance with AS 4373-2007 'Pruning of amenity trees' and the Safe Work Australia (2016) 'Guide to managing risks of tree trimming and removal work'. 2. The respondent is to give the applicant 7 days notice of the works in Order (3). 3. The applicant is to allow all access required for completion of the works in Order (3) during reasonable hours of the day. 4. The exhibits are returned other than Exhibit A.

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: 30 September 2024