Toulson v Kuan

[2025] NSWLEC 1072

Land and Environment Court (NSW)|2024-10-22|Before: Centre J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2024-10-22

Before

Centre J

Source

Original judgment source is linked above.

Judgment (13 paragraphs)

[1]

JUDGMENT

COMMISSIONER: Edward Toulson and Yeh Sheng Kuan (the respondent) own neighbouring properties in North Rocks that share a side boundary. As Mr Edward Toulson was 95 years old, his son, Nigel Peter Toulson (Mr Toulson) (the applicant), represented Mr Edward Toulson. The respondent's property was leased to tenants and was managed by Ms Karlaftis of First National Real Estate Homeway, Castle Hill.
The canopy of a large weeping fig tree (the tree) growing near the common boundary had branches extending over the front yards of both properties. In an initial email to Ms Karlaftis on 28 May 2024, Mr Toulson advised that the tree was encroaching almost 10 m over the common property boundary. The applicant requested that Ms Karlaftis or Mr Kuan "organise to have the fig tree pruned to the property boundary or removed". Ms Karlaftis replied that, "[t]rimming back anything hanging over is to your discretion and expense. This includes removal and [I] believe there is a limit of 10% per year, according to council - depending on the species of the tree".
Ms Karlaftis forwarded the applicant's email to Mr Kuan and advised the applicant that Mr Kuan had recently pruned high branches overhanging Mr Kuan's property from Mr Toulson's father's trees near the common boundary, so as to restore Mr Kuan's roof. Ms Karlaftis noted such tree works were undertaken at Mr Kuan's expense, "being that we are all responsible for our own yard".
Upon receiving a reply from Mr Kuan, Ms Karlaftis advised Mr Toulson on 4 June 2024, that Parramatta City Council (Council) had refused an application from Mr Kuan in 2008 for removal of the tree. Ms Karlaftis added that Mr Toulson was welcome to again apply to Council, and "you are within your right" to cut back 10% of the tree's canopy from your side, at your expense".
On 7 June 2024, the applicant contacted a Community Justice Centre (CJC). A CJC case co-ordinator subsequently advised the applicant that three consecutive mediation request letters would be sent to Ms Karlaftis on his behalf. On 9 July 2024, the CJC case co-ordinator reported to Mr Toulson that two of the three letters had been sent with no reply to date. In an email to Mr Toulson on 10 July 2024, Ms Karlaftis confirmed receipt of a CJC mediation request and advised that Mr Kuan would "be acting direct".

[2]

The onsite hearing

At the onsite hearing, Mr Toulson was self-represented, while Ms Karlaftis acted as Agent for Mr Kuan. As is customary, the hearing commenced with an inspection of the tree in site context.
Both properties sloped sharply down from the adjacent street at an angle of approximately 30 degrees. The common boundary extended from around south, south-east at the street frontage to near north, north-west at the rear. The common boundary was on the western side of Mr Edward Toulson's land. Mr Edward Toulson's steep driveway ran parallel to his east side boundary and extended straight into garages incorporated into the eastern end of the dwelling. Regrettably, the applicant's car was too big to fit in the garage, so the applicant parked perpendicular to the driveway on a brick paved apron about 3 m wide, in front of his father's dwelling.
Between the common boundary and the driveway, the lower half of the steep front yard had been terraced. A masonry block retaining wall, which was parallel to the front of the dwelling and about 900 mm high, was located beyond the paved parking apron. The parking apron between the dwelling and the retaining wall was relatively flat, which provided for safe access to the front entrance of Mr Edward Toulson's dwelling, about 4 m east of the common boundary.
The retaining wall was bisected by flagstone stairs with raised garden beds on either side. Though the garden beds contained a few long-established hardy plants like Nandina domestica 'Nana' and Agapanthus praecox, the gardens were overgrown with weeds and some pendant branches from the tree.
The stairs extended about 3.5 m up the hill from the parking apron and terminated at a narrow flagstone path laid across the slope. Beyond the path was a second similar height masonry block retaining wall. Above the second wall, the land's natural slope appeared unaltered up to a wide nature strip.
The tree was mature and appeared likely to have been in situ for many decades. It was about 14 m tall, with an irregular canopy which spread about 17 m. The base of the tree's thick trunk was located about 2-3 m downslope from the front boundary, close to other large trees near the common boundary.
The common boundary was poorly defined within a garden congested with vines and weeds. Part of the tree's trunk base may have been growing on or beyond the boundary on Mr Toulson's land, notwithstanding the tree's trunk base appeared to be mainly on Mr Kuan's property.
Though the tree had been misidentified as Ficus religiosa, I was unfamiliar with this species. The tree's weeping habit and leaf shape were not dissimilar to Ficus benjamina, but its canopy was more open, and its leaves were fleshier, with much longer internodes. The fig's fruit were distributed sparsely around the tree. They were about 10-15 mm in diameter, a distinctive yellow colour, and mainly individual rather than clustered.

[3]

The applicant's position

In his Tree Dispute Claim Details (Form H), Mr Toulson alleged the tree was likely to cause damage "to [his] car from falling tree parts, both directly above house front door, and on many areas above of [sic] property". Mr Toulson contended that, "[p]arts of tree constantly fall onto our car, likely to cause damage to paint work, and body panels", and added that, "[f]allen tree parts regularly enter into car drainage pipes which block water drainage pipe, and will likely lead to water ingress and subsequent water damage to car". Further, Mr Toulson claimed he continually needs to visually check for fallen tree parts and remove them and was "[u]nable to take steps to prevent damage to car paint work, or body panels".
Additionally, Mr Toulson alleged the tree was likely to cause damage "to house and property from falling tree parts, both directly above house front door and on many areas on front of property". In this respect, Mr Toulson contended he was "[u]nable to take steps to prevent damage to house/property" but conducted "[r]egular sweeping and removal of fallen tree parts".
At question 9 of Form H, Mr Toulson said, "[r]egular falling tree parts overhanging directly above house front entry door" were likely to cause injury. Mr Toulson noted his 95-year-old father had been diagnosed as "generally frail with cognitive impairment", and was slow to react to, and avoid falling objects. The applicant claimed Ms Gilder Mather, a Registered Nurse, witnessed his father being hit on the head by falling tree parts.
The applicant submitted that the falling tree parts which struck his father's head caused pain and suffering, which was exacerbated by prior removal of skin cancers on his scalp. To this effect, Mr Nigel Toulson, Mr Edward Toulson, and Ms Gilder Mather provided almost identical statements which described shock, pain, and injury suffered by Mr Edward Toulson upon being struck "numerous times" by falling tree parts. However, the applicant submitted no evidence of such injury. Mr Toulson contended that regularly falling tree parts also hit other people and that looking up was dangerous due to the risk of eye injuries.
The applicant also claimed he was "[u]nable to safely make use of front area of property or attend to property maintenance due to falling parts of tree, over-hanging and low slung obstructing branches", some of which extended to ground level.
In his oral submissions, Mr Toulson said the garden beds were cleared out a few years ago but the tree had not been pruned. He said he didn't expect it would be so hard to have the tree removed, and that the tree was very messy.

[5]

Jurisdictional framework for the application

The application is assessed under the following provisions of Pt 2 of the 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. 8 Notice of application for order to be given to owners of affected land (1) An applicant for an order under this Part must give at least 21 days notice of the lodging of the application and the terms of any order sought to: (a) the owner of the land on which the tree is situated, and (b) any relevant authority that would, in accordance with section 13, be entitled to appear in proceedings in relation to the tree, and (c) any other person the applicant has reason to believe will be affected by the order. 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. 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. … 12 Matters to be considered by Court Before determining an application made under this Part, the Court is to consider the following matters: (a) the location of the tree concerned in relation to the boundary of the land on which the tree is situated and any premises, (b) whether interference with the tree would, in the absence of section 6 (3), require any consent or other authorisation under the Environmental Planning and Assessment Act 1979 or the Heritage Act 1977 and, if so, whether any such consent or authorisation has been obtained, (b1) whether interference with the trees would, in the absence of section 25 (t) (Legislative exclusions) of the Native Vegetation Act 2003, require approval under that Act, (b2) the impact any pruning (including the maintenance of the tree at a certain height, width or shape) would have on the tree, (b3) any contribution of the tree to privacy, landscaping, garden design, heritage values or protection from the sun, wind, noise, smells or smoke or the amenity of the land on which it is situated, (c) whether the tree has any historical, cultural, social or scientific value, (d) any contribution of the tree to the local ecosystem and biodiversity, (e) any contribution of the tree to the natural landscape and scenic value of the land on which it is situated or the locality concerned, (f) the intrinsic value of the tree to public amenity, (g) any impact of the tree on soil stability, the water table or other natural features of the land or locality concerned, (h) if the applicant alleges that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant's property: (i) anything, other than the tree, 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, and (ii) any steps taken by the applicant or the owner of the land on which the tree is situated to prevent or rectify any such damage, (i) if the applicant alleges that the tree concerned is likely to cause injury to any person: (i) anything, other than the tree, that has contributed, or is contributing, to any such likelihood, including any act or omission by the applicant and the impact of any trees owned by the applicant, and (ii) any steps taken by the applicant or the owner of the land on which the tree is situated to prevent any such injury, (j) such other matters as the Court considers relevant in the circumstances of the case.

[7]

Damage caused by the tree

The key jurisdictional test is at s 10(2) of the Act, where the Court must be 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.
Although Mr Toulson alleged that falling tree parts were likely to cause damage to property, I saw no residual wounds on the tree from broken branches, nor did the applicant indicate if or where any such branch breakages had previously occurred. Therefore, in the absence of other evidence, the tree parts at issue appeared to mainly be restricted to small dead twigs and figs which the tree would naturally shed.
Mr Toulson provided no evidence of any damage to the dwelling roof or to any other part of the dwelling. Similarly, though his car was parked on the rectangular parking apron in front of the dwelling, Mr Toulson did not indicate any damage on the car.
Given the topography of the site, the tree's base was located about 5 m higher than the floor level of Mr Edward Toulson's dwelling. The tree's canopy was thus very high in the proximity of the dwelling. Viewed vertically from the parking apron, the tree's canopy was well clear of the dwelling, with a horizontal setback of about 1.5 m at the tree's closest point. i.e. the canopy would have to grow about 1.5 m wider to overhang the dwelling at all. This was clearly visible on site, and in the third of four A4 sized colour photographs Mr Toulson attached at the back of the Tree Dispute Application Form.
As noted above at [29], s 10(2) of the Act includes damage to the applicant's property likely to be caused by the tree concerned, "in the near future". In a decision published in Yang v Scerri [2007] NSWLEC 592 at [14], the near future is defined, as a rule of thumb, as a period of 12 months.
Though the tree's canopy is likely to grow wider over time, the rate of canopy broadening would be reduced by the tree's pendant habit. Therefore, I am not satisfied that the canopy is likely to begin to extend above the dwelling for many years. While strong winds may blow twigs or figs onto the dwelling roof, I am not satisfied either is likely to cause damage. Consequently, the applicant's claim of likely dwelling damage is dismissed, and s 10(2)(a) is not satisfied.
Given the tree's location on the respondent's land near the common boundary, the arc of the edge of the canopy overhung about half the (approximate 3 m) width of the parking apron at the common boundary end, marginally less near the dwelling's doorway and the overhang progressively reduced to zero about 8 m east of the common boundary.
Regardless of Mr Toulson's apprehension of future damage to his car, he provided no evidence of past or current damage. In his site diagram at question 2 of Form H, Mr Toulson showed the front of the car parked under the tree's canopy, such that the canopy was above a roughly triangular area of the car, the hypotenuse of which extended from the car's front right-hand corner to about the middle of the front passenger's door.
Further, by parking the car a few metres back towards the east, Mr Toulson could remove the car completely from any canopy overhang. This would eliminate or significantly reduce twigs and figs that may otherwise lodge in car drainage pipes. It is a step the applicant could take "to prevent damage to car paint work, or body panels". Consequently, the applicant's claim of likely car damage is dismissed, and again, s 10(2)(a) is not engaged.

[8]

Dropping debris

Although Mr Toulson appeared to deem regular checking of the car and removing "falling tree parts" as an unreasonable maintenance burden, it is considered differently under the Act.
As many applications include claims of damage, annoyance, and excessive maintenance resulting from debris from neighbour's trees, the following Tree Dispute Principle was established in Barker v Kryiakides [2007] NSWLEC 292 ('Barker') at [20]: "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".
Though the applicant disliked the twigs and figs and other similar debris likely to fall from the tree, no evidence of damage caused by such debris was submitted. Consequently, no remedy is available under the Act. The twigs and figs on the car are covered by the expectation of reasonable maintenance arising from the Tree Dispute Principle in Barker, along with "regular sweeping and removal of fallen tree parts", noted by the applicant.
Similarly, no remedy is available under the Act as a result of branches encroaching from a tree on adjoining land unless the branches have caused property damage or are likely to cause such damage in the near future.
In Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 ('Robson'), Preston CJ discussed encroachment as it applied prior to the Act, under the common law Tort of nuisance; at [55]-[56]: "[55] Nuisances of the first kind, causing an encroachment, are exemplified by branches or roots of a tree growing on the defendant's land, encroaching into the air above or the soil below the neighbour's land: Clerk & Lindsell on Torts, 19th ed, Sweet & Maxwell, London, 2006, [20-07], p 1165. [56] Mere encroachment into the neighbour's land is insufficient to complete a cause of action for nuisance; special damage must be suffered by the neighbour as a result of the encroachment to obtain the remedies of damages or injunction..."

[9]

Risk of injury to persons

The applicant claimed the tree presented a risk of injury to persons under the canopy, specifically to Mr Edward Toulson when moving between the dwelling doorway and the car, and to people undertaking maintenance of garden beds.
Based on the decision in McPherson v Lake [2017] NSWLEC 1081 ('McPherson') at [10], the Court assesses the risk of injury posed by a tree in the foreseeable future based on the characteristics of the tree, the history of any failures, any other relevant evidence, and the circumstances of the site apparent at the time of the hearing.
The tree appeared to be healthy and its trunk and branches looked structurally sound. Further, no claims of historical branch failures were reported by the applicant. Though the soil surface around the tree's base was concealed by vines and weeds, the trunk was fairly vertical and appeared strong and vigorous. Thus, there was no reason to doubt the integrity of the tree's root anchorage in the surrounding soil. The tree was around mid-maturity in its life cycle.
With respect to tree parts impacting Mr Edward Toulson, I acknowledge the shock and pain a frail 95-year-old person may endure upon being struck by a fig or twig and the discomfort and distress the applicant and Ms Mather may experience upon witnessing such impact.
Although applicants may thus seek orders in compensation for frailty and other vulnerabilities that often accompany old age, there is limited scope for such allowances. Assessment of risk of injury under the Act must be exercised as objectively and consistently as possible.
Generally, for risk of injury to be considered more than a 'low' risk, at least moderately serious consequences must be likely, in this case from falling "tree parts". However, Mr Toulson failed to provide evidence substantiating his claim that genuine injury was likely, notwithstanding that the statements of Mr Nigel Toulson, Mr Edward Toulson, and Ms Gilder Mather painted a disconcerting scenario. In the absence of sound evidence, I am not persuaded that impact by the figs and twigs most likely to fall from the tree is likely to cause genuine injury.
Further, the likelihood of impact by "tree parts" may be easily mitigated by holding an umbrella above Mr Edward Toulson during transit between the front door and the car. A sturdy, broad-rim hat would probably be sufficient and would be a prudent measure considering Mr Edward Toulson's history of skin cancers on his scalp. Alternatively, the risk may be reduced by walking closer to the dwelling where no canopy was overhanging and accessing the car clear of the canopy by initially reversing a few metres.
The tree was located in a quiet suburban area which benefitted from a wide verge. Pedestrian traffic is likely to be infrequent. Therefore, the occupancy rate of people in the 'target zone' under and near the tree's canopy is likely to be no greater than occasional. During storms and high winds, the conditions under which twigs and figs are more likely to drop, the frequency of outdoor occupation of the 'target zone' would reduce further.
Mr Toulson said the garden had been cleared a few years ago and, in the absence of other evidence, the garden's current overgrown condition appeared indicative of no or little additional maintenance in the interim. The pendant branches overhanging the stairs and garden below head height were not especially large or numerous and pruning such branches to allow access for garden maintenance would not be onerous.
Considering Mr Toulson's description of his 95-year-old father as "generally frail with cognitive impairment", it is unlikely Mr Edward Toulson would occupy the driveway, the steep garden, or the stairs between the garden beds. For Mr Toulson and other younger people, however, I concur with the respondent that the impact from falling figs presents a low risk of injury. Figs are usually ripe and relatively soft by the time they fall, and fruit occurs and falls seasonally, for a period of limited duration.
In Garbutt v Nichols [2025] NSWLEC 1035; at [17], in similar circumstances, Galwey AC recently reached the same finding that the tree was unlikely to cause injury. The tree at issue was a Black Bean, the seed pods of which are much larger, heavier, and harder than the figs and twigs likely to fall from the tree.
Consequently, considering the absence of reported past branch failures, the characteristics of the tree, and the site circumstances through the prism of McPherson, the risk of injury is low to very low, which is insufficient risk of injury to persons to engage s 10(2)(b) of the Act.

[10]

Discretionary matters - s 12

In the hypothetical situation that s 10(2) of the Act had been satisfied, before orders could be made, the Court must consider relevant discretionary matters at s 12, as follows:
The tree is located near the common side boundary and about 2.5 m from the front boundary (s 12(a)).
Under s 12(b), contrary to Mr Toulson's answer at question 18 of Form H, in the absence of s 6 of the Act, removal of trees, or pruning of live branches requires consent from Council under the Environmental Planning and Assessment Act 1979 (EP&A Act).
The Parramatta Development Control Plan 2023 (DCP), at Part 5.3.4 (Tree and Vegetation Preservation), is made in accordance with Ch 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP), which is made under the jurisdiction of the EP&A Act.
Part 5.3.4 of the DCP "describes the trees and vegetation that require a permit or approval for clearing to occur to a tree specified in these controls. The trees and vegetation declared by this section of the DCP are protected under Part 2.3 of the Biodiversity and Conservation SEPP and consent from Council must be obtained before any works can occur to a tree as specified in these controls".
Table 5.3.4.1, Type of Tree Application required, notes that a Tree Permit is required for "tree removal and pruning". At Control C.01, prescribed trees and vegetation which are so protected include, "[a]ny tree or palm, whether indigenous, endemic, exotic or introduced species with a height equal to or exceeding five (5) metres". At Control C.05, the tree does not satisfy any noted exemption condition, nor is it within the Exempt tree species listed in Table 5.3.4.2.
Therefore, Part 5.3.4 of the DCP requires a Tree Permit for removal or pruning of live branches on the fig, and the permit application requires written permission of the tree owner, or their Agent. Ms Karlaftis was under the misapprehension that up to 10% of the live canopy could be pruned without a Tree Permit but permit requirements vary from council to council, and Parramatta City Council require a permit for all live branch pruning.
Having said this, Ms Karlaftis had consistently advised the applicant that he may prune the tree at his expense and is thus likely to support and sign a Tree Permit application by Mr Toulson. Far less than 10% of the canopy would require pruning to clear pendant branches to above head height and thus provide safe and comfortable access throughout the front garden (s 12(b2)).
The tree provides protection from the sun and wind and contributes to the amenity of the land on which it is situated (s 12(b3)).
Section 12(d) considers any contribution of the tree to the local ecosystem and biodiversity. The tree's fruit, trunk, and branches can be expected to provide food, shelter, and habitat for native fauna, such as flying foxes, possums, and birds. The tree's canopy also linked large Eucalyptus trees located on either side on the adjacent broad nature strip so as to form a continuous canopy corridor for transiting fauna. Therefore, the tree is likely to make an important contribution to the local ecosystem and biodiversity.
In Robson, his Honour provided commentary on environmental considerations under s 12 of the Act; at [203]: "[203] The matters concerning the values of the tree and its environmental contribution are notable additions to the matters recommended by the Law Reform Commission in its report. The Law Reform Commission report was relatively quiet about environmental factors, in contrast to the earlier discussion paper which had emphasised the environmental values of trees. The legislature, however, took a different view and required the Court to consider environmental factors. This was a point specifically made in the second reading speech: "The provisions that require the Court to consider environmental factors prior to making an order are in recognition of the importance of urban trees as an environmental asset. Urban trees play a proven environmental role in every urban society. They provide energy savings through lower cooling costs, reduce stormwater run-off, help reduce salinity and provide aesthetic and social benefits associated with being in proximity to nature. The bill therefore recognises the environmental contribution of urban trees as a factor that the court must take into consideration in determining applications.""
The tree provided intrinsic public amenity due to its prominence at street level adjacent the nature strip (s 12(f)).
Section 12(h)(i) of the Act considers anything, other than the tree, that has contributed, or is contributing, to any damage or likelihood of damage, including any act or omission by the applicant and the impact of any trees owned by the applicant.
The failure of the applicant and Mr Edward Toulson to maintain their own property is considered under s 12(h)(i). Though the applicant reported having the gardens maintained a few years ago, he had contributed to his alleged inability "to safely make use of front area of property or attend to property maintenance" by never having had any of the tree's pendant branches pruned. Mr Toulson resisted paying for any such pruning and failed to respond to Ms Karlaftis' repeated emailed comments that, "[t]rimming back anything hanging over is to your discretion and expense".
The Act provides no remedy as to apportionment of cost between neighbours for maintenance of overhanging branches that do not cause damage or risk of injury to persons. It is thus generally negotiated between neighbours on a case-by-case basis. It is common practice, however, for property agents managing rental properties to resist paying for such works, on the basis claimed by Ms Karlaftis, that "we are all responsible for our own yard".