The Owners – Strata Plan No 3358 v Pascale

Before: Galwey AC

Decision: See orders at [51].

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application concerning damage and injury – neighbouring trees – damage to fence and retaining wall – risk of damage and injury – whether tree removal is required – who is responsible for the works

Legislation Cited: Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 6, 7, 9, 10, 12

Cases Cited: Barker v Kyriakides [2007] NSWLEC 292
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152

Texts Cited: Australian Standard, AS 4373:2007 ‘Pruning of amenity trees’ (March 2007)
City of Canada Bay Development Control Plan (March 2023)
Safe Work Australia, ‘Guide to managing risks of tree trimming and removal work’ (July 2016)

Category: Principal judgment

Parties: The Owners – Strata Plan No 3358 (Applicant)
Felice Pascale (First Respondent)
Angelina Pascale (Second Respondent)

Representation: Counsel:
D Hunter (Agent) (Applicant)
A Barill (Agent) (First and Second Respondents)
M Pascale (Agent) (First and Second Respondents)

File Number(s): 2024/376649

Publication restriction: Nil

Judgment

Background

1. COMMISSIONER**:** Three large camphor laurel trees grow on the Five Dock property where Felice and Angelina Pascale (the respondents) have lived since the days when horses grazed on surrounding properties. The trees are next to the common boundary shared with The Owners – Strata Plan No 3358 (the applicant). The trees cause the strata owners some nuisance: damage to the boundary fence, damage to a low retaining wall on their property, and debris falling into their gutters and elsewhere. Over many years the strata owners have occasionally asked the Pascales to prune the trees, sometimes with no result, but recently they asked the Pascales to remove the trees. The strata owners then applied to the Court seeking orders for removal of the trees and for the carrying out of repairs to their property where it has been damaged by the trees.

2. After the Pascales received a copy of the application to the Court, they applied to the City of Canada Bay Council (Council) for a tree permit. Council granted permission to prune the trees.

3. During the onsite hearing I took some time to observe the trees. I rely on my own arboricultural expertise and experience in making this decision. I also consider the material filed by the parties, including the application and claim, photos, videos, correspondence and invoices filed by the applicant, a report on the trees by arborist Lee Hancock, and a copy of Council’s determination on the consent application. No expert witnesses were required at the hearing. Mr Hunter represented the applicant as their agent; the Pascales’ daughter, Antonietta Barill, and son, Mario Pascale, represented them as agents.

Framework for this decision

4. The strata owners have applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act).

5. The orders they seek – removal of the three trees, repairs to the boundary fence and to a retaining wall on their property – are orders the Court can make at s 9 of the Trees Act. The Court is not required to make the orders sought by the applicant, but can make orders as it sees fit to remedy, restrain or prevent damage to property, or to prevent injury to a person, as a consequence of the trees.

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

7. Has the applicant made a reasonable effort to reach agreement with the respondent and given the required notice of the application: s 10(1)(a) of the Trees Act?

8. Can the Court be satisfied that the trees have caused, are causing, or are likely in the near future to cause, damage to the applicant’s property, or are likely to cause injury to any person: s 10(2)?

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

The trees

7. Although the application refers to two trees, the Pascales have three camphor laurels (Cinnamomum camphora) on their land next to the common boundary. From the strata owners’ land, the two southern trees appeared to Mr Hunter to be one tree. However, the Pascales understood the application to apply to all three of their camphor laurels. All three trees are therefore included in this decision.

8. Two camphor laurels are near the Pascales’ outbuilding in the south-western corner of their property. The southern-most tree, Tree 3 in this judgment, has a stem diameter of approximately 1 metre near its base and divides into two stems from shortly above ground level. A short distance to its north, Tree 2 (in this judgment and as shown in the application) has a basal stem diameter of around 1.5 metres and divides into four stems just above its base. These two trees are close to the strata owners’ garages. Further to the north, Tree 1 (in this judgment and as shown in the application) is closer to the strata owners’ apartment building.

9. All three trees are close to 20 metres tall. All three have large healthy crowns. Some large deadwood is present in their crowns but only to the extent to be expected of a mature camphor laurel – there is no indication that the trees are declining or are in any way stressed. I observed no significant structural defects in their crowns. All three trees have multiple stems joined by narrow stem unions that are commonly seen in this species. The unions show no indication of structural weakness.

10. The trees’ broad crowns spread in all directions. To the east they cover a large part of the Pascales’ garden. To the west, branches and foliage extend well over the strata owners’ property, above their garages and apartment building and the hardstand area between. The trees are close to the dividing fence shared by the parties, and close to a low retaining wall on the applicant’s property.

11. Mr Hancock found the trees all have high landscape value and estimated they have useful life expectancies of more than 40 years. I agree with this.

Reasonable effort to reach agreement

12. The strata owners discussed the trees with the Pascales on several occasions. They wrote to the Pascales in January 2021, bringing to their attention issues of property damage to the boundary fence and the retaining wall, and again in March 2022 reiterating the same issues as well as the risk of branches falling and causing damage or injury. I am satisfied that the strata owners have made a reasonable effort to reach agreement and that the timeframe set down by the Court allowed for the required notice of the application.

Damage or injury caused by the trees

The applicant’s submissions

13. The applicant’s position, taken from the application form and other material filed with the Court, along with submissions made during the hearing, is summarised here.

14. As roots of the three trees grow, they expand and are pushing the dividing fence over and cracking their retaining wall, displacing blocks from the wall. The retaining wall was replaced in 2007 due to damage caused by tree roots. An invoice from Ross Smith, a plumber and gasfitter, in 2007 shows the retaining wall was repaired at a cost of $1,500. The invoice included the statement: “Note: Block wall may crack and raise in the future due to the re growth [sic] of tree roots.” The applicant notified the Pascales of these issues by letter dated 7 January 2021, expressing a preference for tree removal. The applicant submitted that their owners corporation should organise and pay for repairs that are now required to the retaining wall, with the amount to be compensated by payment from the Pascales. Alternatively, the Pascales could arrange and pay for the works if they engaged suitably insured and licensed contractors.

15. Roots from the trees damaged the applicant’s sewer pipe, requiring them to remove part of their driveway to carry out repairs. Invoices from Ross Smith in 2007 show that the sewer and driveway works cost $13,618. The roots are likely to cause further damage to their sewer pipe, and are likely to damage the driveway and their building’s footings.

16. Branches of Tree 1 overhang the applicant’s apartment building, dropping debris onto the roof. Despite regular gutter clearing and installation of gutter guard, the gutters become blocked and frequently overflow during heavy rain. The applicant provided invoices for gutter guard installation, regular clearing of gutters and cutting branches back from their building and garage. On the invoice of 13 July 2021, JK Gutter Cleaning stated: “The Gutter guard is working well, and it seems a 12 monthly clean will be sufficient for the gutters on the unit block. The roof and gutters on the garage however was [sic] full of decaying leaf debris. I recommend cleaning the garage every 6 months.” The applicant submitted that the amount of leaf matter cleaned up from their property is more than will fit into the fortnightly green bin collection.

17. Branches are likely to fall from their trees and damage cars parked on the driveway and hardstand area and pose a risk of injury to people on the driveway and near their garages. Large branches up to 10 metres long, as well as numerous small branches, have fallen from the trees on a regular basis. After the applicant notified the Pascales of a large fallen branch in December 2022, the Pascales removed the branch. However, other requests to remove overhanging branches have been unsuccessful, despite Mr Pascale’s repeated assurances to address these matters.

18. The applicant submitted that they have made repeated requests to the respondents for these issues to be addressed. The applicant denied that they ever had any agreement with the Pascales to alternately carry out pruning works.

The respondents’ submissions

19. Ms Barill and Mr Pascale explained that the trees were already present when their parents bought the property many years ago. They submitted that there was once an arrangement with the owners corporation to take turns pruning the trees – the Pascales pruned them most recently so they assume it is now the applicant’s turn.

20. After receiving a copy of the application, the Pascales applied to Council to remove the trees. Council’s tree officer came to their property and inspected the three camphor laurels. According to the Pascales, Council advised them that the applicant could prune their own side of the trees. Council granted consent for some limited pruning works.

21. The Pascales do not deny that tree roots have disrupted the dividing fence and the applicant’s retaining wall, but submitted that there is no need to remove the trees. They noted the trees’ benefits, including shading and cooling, and the habitat provided to birds and other animals.

22. The Pascales submitted that Mr Pascale has symptoms of dementia, which might explain why he has not always responded to the applicant’s requests.

23. If repair works are to be undertaken to the fence and the applicant’s retaining wall, the Pascales would prefer to organise and pay for the work. If tree pruning works are to be ordered, the Pascales submitted that each party should be responsible for pruning works above their own property.

Have the trees caused damage to property?

The dividing fence

24. The Colourbond fence along the common boundary leans significantly into the strata owners’ property, most notably near the trees. The fence is old, and the integrity of its footings might reflect its age, but further to the north, away from the trees, where the strata owners’ eastern boundary is shared with a different neighbour, it is relatively upright. I am satisfied that the fence’s condition has resulted primarily from the growth of the tree’s buttress roots and other roots beneath its base. The parties share ownership of the fence, so it is partly the property of the applicant. The trees have caused damage to the applicant’s property: s 10(2)(a) of the Trees Act. The condition of the fence is such that it should be replaced.

The retaining wall

25. The applicant’s driveway is set back 300 mm or so from the common boundary and the dividing Colourbond fence. The applicant’s land and the base of the fence are slightly higher than the driveway’s surface. Along the edge of the driveway runs a low block retaining wall. The wall is collapsing in the vicinity of Tree 1. Observations during the hearing confirmed the applicant’s claim that roots of Tree 1 have displaced the wall.

The driveway

26. The applicant’s concrete driveway and hardstand area show only minor cracking and displacement. The Ross Smith invoice for driveway repair works in early 2007 states: “Section of driveway and retaining wall has been raised and cracked due to roots from neighbouring tree… Fill skip bin with concrete, rubbish and tree roots… Note: Concrete driveway may crack and raise in the future due to the re growth [sic] of tree roots.” I accept that tree roots were likely to be a contributing factor to the driveway’s condition at the time.

The sewer pipe

27. Invoices for works in early 2007 show that Ross Smith removed sections of the applicant’s concrete driveway and hardstand area, and installed “a new 100mm plastic drainage line” and its connections to a “vertical shaft” and an overflow gully. The invoice then states: “Inspect existing sewer line in driveway for damage and tree root intrusion. No visible damage or tree root intrusion found. Connect new plastic line into existing sewer line in driveway… Note: Remaining old sewer line in driveway may need to be replaced in the future.” Tree roots were not identified in the invoice as a cause of any damage to sewer pipes.

Debris

28. Branches of Tree 1 extend above the applicant’s apartment building. The applicant’s photographs and video show water spilling over the roof gutters during heavy rain, despite regular clearing. This might be a nuisance for the applicant, but of itself is not damage caused by the tree. The applicant provided no evidence of water ingress resulting in building damage, but if that has occurred, it could be prevented by more regular clearing of the gutters: see the principle regarding reasonable property maintenance at [20] in Barker v Kyriakides [2007] NSWLEC 292. The amount of debris here is no more than seen in other tree disputes in which the Court has consistently applied that principle. Likewise, any damage resulting from debris build-up on the garage roof could be prevented by regular maintenance.

Damage from branches

29. Branches have fallen from the trees but did not cause damage. Mr Hancock inspected the trees on 21 November 2024 and identified no hazardous branches other than a “…minor amount of deadwood in the canopies…” I observed, in all three trees, deadwood that is likely to fall in the near future and is large enough to cause damage to cars on the driveway. Branches reaching the furthest over the applicant’s property are overextended, with significant weight at their ends held far from the stem. Some of these branches are also likely to fall in the near future and would cause damage to any cars beneath.

30. Branches that are above and close to the applicant’s apartment building and garages are likely to cause minor damage by scraping against walls, roofs and gutters.

Risk of injury

31. The deadwood and overextended branches described above at [29] are also likely to cause injury to people on the applicant’s driveway and hardstand area.

Summary of findings

32. The three camphor laurels have caused damage to the dividing fence. Tree 1 has caused damage to the applicant’s retaining wall. It is likely that the three trees have contributed to the condition of the applicant’s driveway. Without any interference, further damage to the fence and the retaining wall is likely in the near future. Deadwood and overextended branches are likely to damage vehicles on the applicant’s property and cause injury to a person. Branches that may contact the applicant’s building and garages in the near future are likely to cause minor damage. These elements of the application enliven the Court’s jurisdiction to make orders: s 10(2) of the Trees Act.

Consideration of relevant matters

33. Before making any orders, the Court must consider the matters at s 12 of the Trees Act. Below, I will discuss the s 12 matters that are relevant to my decision.

Location of the trees

34. The three trees are close to the common boundary. Their roots grow into the applicant’s property and branches overhang their apartment building, garages and driveway.

Consent requirements

35. Mr Hancock stated in his report that the “…trees are an exempt species under the Canada Bay Council ‘Exempt Tree Species List’”, but this exemption only applies to camphor laurels “…where the outside edge of the trunk of such tree is located within 3 metres of any single storey dwelling (not being an out building eg. Garage, carport, shed, etc [sic])”: City of Canada Bay Development Control Plan (DCP), Pt B6 Urban Forest. None of the three trees is within 3 metres of a single-storey dwelling, and the trees meet the criteria for a ‘protected tree’ under the DCP, so a permit is required to remove or prune each of the trees.

36. The Pascales lodged a tree permit application with Council. The applicant questioned whether the Pascales applied to remove or prune the trees. The Pascales submitted that they applied to remove the three trees. On 29 November 2024, Council issued a permit to prune three trees. The permit does not mention or refuse tree removal, so it seems likely that the Pascales only applied to prune the trees.

37. The nature of the tree permit has confused the parties. Mr Hunter thought that the permit did not apply to the subject trees, because Council granted approval to prune three “Liquidambar styraciflua (Sweetgum) located in the backyard.” There are no Sweetgums on the Pascales’ property. The Pascales submitted that Council’s officer inspected the three camphor laurels. The tree species identified on the permit seems to me to be a mistake of carelessness (rather than misidentification) on behalf of Council’s tree officer.

38. Permitted pruning of Tree 1 (Tree 3 in the permit) refers to branches over the dwelling roof at 19 Garfield Street, causing further confusion for the applicant, whose property is at 23 Garfield Street. Tree branches do not overhang, nor are they anywhere near, the dwelling at number 19. Again, this simply seems to be a careless error on the tree permit. Council approved crown maintenance pruning of the three trees as follows: “In this instance, the approved pruning is removal of deadwood only.”

39. Council approved further pruning of Tree 1 (Tree 3 in the permit) as follows: “In this instance, the approved pruning is roof clearance pruning (of branches over #19 Garfield Street) by 15% for tree 3 only… All works must be less than 15 percent of the trees [sic] total foliage area of the canopy and must not alter the structure and size of the tree.” The permitted pruning works would mitigate the risk of damage or injury from falling deadwood, and would minimise the amount of debris falling onto the applicant’s roof. Some additional pruning to reduce or remove overextended branches would mitigate the other risk arising from falling branches identified above at [29].

Impacts of pruning

40. Pruning for building clearance and to remove deadwood and overextended branches would not adversely impact the trees.

The trees’ benefits

41. The three camphor laurels are large, impressive features of the Pascales’ garden and of the local landscape. The Pascales submitted, and I accept, that the trees provide significant shading and cooling. Magpies spend time in the trees and Mr Hancock identified a lorikeet nest in Tree 1. Removal of the trees would significantly impact the amenity of the Pascales’ property and seems disproportionate to the trees’ negative impacts to the applicants.

Other factors contributing to damage

42. Age and weathering have affected the Colourbond fence’s condition, but if not for the displacement caused by the trees’ roots, the fence may have been an adequate dividing fence for many more years. For this reason, the Pascales should bear the cost of fencing works.

43. The applicant’s low retaining wall was rebuilt in 2007. Despite the presence of nearby tree roots, the wall was built without any substantial footing, using only thin concrete blocks joined by mortar. Its repeated failure was entirely foreseeable. Ross Smith’s invoice of 5 September 2007 included: “Note: Block wall may crack and raise in the future due to the re growth [sic] of tree roots.” Had the applicant constructed the retaining wall to suit the conditions, damage may have been avoided. For this reason, the Pascales should not bear the cost of works to the retaining wall.

44. The applicant’s driveway appears typical for a concrete driveway of its age. Natural ground movement over the years has likely contributed to minor differential movement and cracking of concrete slabs.

Actions of the applicant

45. The applicant has taken steps to prevent damage and injury by notifying the Pascales of the issues giving rise to this application. The applicant has tried to prevent debris build-up on their roof and in their gutters by installing gutter guard and arranging regular clearing of the gutters. The applicant has contributed to the condition of the retaining wall by failing to arrange for the construction of a wall suitable for the site conditions.

Actions of the respondents

46. Although the trees overhang both properties, they grew on the Pascales’ property and their stems still arise from the Pascales’ land. The trees therefore belong to the Pascales: see Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 at [151]-[153]. This puts some onus of maintaining the trees on the Pascales. While neighbours can prune overhanging branches (subject to council consent requirements), the Pascales are responsible for their own property, including the trees. Where damage or injury is foreseeable, they might be expected to carry out reasonable actions to prevent this. I saw no signs that pruning has been undertaken recently. Deadwood and overextended branches pose a foreseeable risk to the applicant that can be mitigated by reasonable pruning. The Pascales will bear the cost of tree pruning works.

Conclusions

47. The three camphor laurels have caused damage to the applicant’s property, are likely to cause further damage in the near future, and are likely to cause injury.

48. The trees are the principal cause of the dividing fence’s poor condition; the Pascales will bear the cost of its replacement.

49. The Pascales will also bear the cost of pruning the trees to mitigate the risk of branches causing damage or injury. Council consent is not required to carry out the pruning works ordered below, in accordance with s 6 of the Trees Act. No orders for ongoing pruning will be made below, as this judgment should assist the parties understand their respective ongoing responsibilities for trees and property.

50. For reasons given above, no orders are made for repairs to the applicant’s retaining wall. As the wall is the applicant’s property, they may repair or replace it as they see fit, without the need for Court orders. In the absence of Court orders, interfering with the trees’ roots would require Council’s consent, but it seems possible that the wall could be reconstructed without damaging substantial tree roots.

Orders

51. The Court orders:

52. The application is granted as per the following orders.

53. The respondents are to engage and pay for a suitably insured and qualified (minimum AQF level 3) arborist to prune all three trees within 60 days of the date of these orders as follows:

(a) remove all deadwood greater than 20 mm diameter over the applicant’s property and within 2 metres of the common boundary; (b) provide at least 2 metres of clearance between all parts of the trees and the apartment building and at least 1 metre of clearance above the garage; (c) crown-lift over the driveway and hardstand area; and (d) reduce overextended branches above the applicant’s property, pruning to suitable lateral branches, removing no more than 20% of each tree’s total crown mass.

3. The works in Order (2) 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’.
4. The respondents are to give the applicant 7 days notice of the works in Order (2).
5. The applicant is to allow all access required for completion of the works in Order (2) during reasonable hours of the day.
6. The respondents are to engage and pay for a fencing contractor to replace the Colourbond dividing fence along the common boundary with a Colourbond fence of similar height, style and colour, or a different dividing fence if the parties agree. The fence must be constructed with sufficient clearance between any parts of the three camphor laurels and the fence to allow for future growth of the trees.
7. The works in Order (6) are to be completed within 90 days of the date of these orders.
8. The applicant and the respondents are to allow any property access required to complete the works in Order (6).
9. The exhibits are returned other than Exhibit A.

D Galwey

Acting Commissioner of the Court

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