Win v Cao

The on-site hearing

1. Both parties attended the onsite hearing, along with the applicant's son, Jason, with whom the respondents dealt in anticipation of the hearing. The Court initially inspected the tree in the respondents' yard, then moved to the applicant's property to assess damage attributable to the tree, and for submissions.
2. The applicant's proposed the following (summarised) orders: 1. The respondents shall removal the tree, including its roots where necessary to prevent further damage to the applicant's house foundations, footpaths, patios, utilities including sewer pipes, or any other part of the applicant's property or interests. 2. The respondents shall compensate the applicant for any damage to the applicant's property caused by the tree that: a) has already resulted, or b) may result in the future, even if the tree is removed. 3. The respondents shall cover the arborist costs or other expenses that are incurred in the process of the remedies sought in Orders 1 and 2, or in any exploratory work required to assess the impact of the tree on the surrounding area.

The respondents' submission

1. The respondents resisted the applicant's claims in a submission to the Court, filed on 10 August 2023 (Exhibit 1). The respondents submitted that the applicant initially alerted them to the possibility of the tree's roots causing damage to their house or causing injury upon being served the application in late June 2023, that was filed with the Court on 19 June 2023. According to the respondents, the only prior communication by the applicant about the tree "was in relation to leaves and flowers falling into their yard, to which the respondent (sic) provided remedies".
2. Upon receipt of the application, the respondents submitted a tree pruning and/or removal application to Canada Bay Council (Council) on 3 July 2023. They claimed that upon inspecting the tree on 3 August 2023, a Council tree assessment officer noted that the tree appeared to be in good health, and only granted permission for pruning of a maximum of 15% of the tree's foliage.
3. The respondents claimed that the applicant had not made a reasonable effort to reach agreement, nor provided any evidence to show the tree had caused or was causing damage, or was likely to cause damage in the near future. They said that photos of roots provided in the application may be from trees other than the Jacaranda, and that even if they were Jacaranda roots, no causal relationship between dwelling damage and Jacaranda roots had been shown.
4. The quality of materials and construction of the applicant's timber façade was challenged by the respondents, who claimed that the treated pine timber had deteriorated because water from an open roof downpipe pooled near the eastern end of the timber façade. The respondents also submitted that the applicant had lowered the soil level in his rear yard to expose and highlight roots and make tripping on roots more likely.
5. Further, the respondents contended that if damage was proven, branch and root pruning should be considered as an alternative to removal, and they noted the tree's contributions to both parties' privacy, to public amenity, and to local biodiversity.

Jurisdictional requirements

1. With respect to s 7, 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. Section 8(1)(a) of the Act requires applicant/s to give the owner/s of the land on which the tree/s are situated at least 21 days' notice of the lodging of the application and the terms of any orders sought. Section 8(1)(b) of the Act requires the applicant to provide such notice of lodging of the application documents to any relevant authority that would, in accordance with section 13, be entitled to appear in proceedings in relation to the tree.
3. In late June 2023, the applicant provided the respondents with his notice of application to the Court seeking orders for tree removal. His application was stamped by the Court on 19 June 2023 which the respondents claimed did not meet the requirements of s 8(1)(a) of the Act.
4. Considering that s 8(1)(a) of Pt 2 and s 14C(1)(a) of Pt 2A are identical requirements under the Act, in Ball v Bahramali & Anor [2010] NSWLEC 1334 (Ball), at [38], Fakes C addressed a similar situation; "With respect to Mr Gerathy's contentions concerning the notice given by the applicant and compliance with s 14C(1) the application was filed with the Court on 19 August. The date specified and stamped in the application by the Court regarding when the application had to be served on the respondents and other parties was 27 August. The matter was listed for a preliminary hearing on 21 September 2010. This information is recorded in the application; this was copied and made available to the applicant. Thus there was at least 21 days notice specified by the Court for the serving of documents and the preliminary hearing and therefore compliance with s 14C(1)."
5. In this case, Mr Win's application was lodged with the Court on 19 June 2023. The date specified and stamped in the application by the Court regarding when the application had to be served on the respondents and other parties was 27 June 2023, and the respondents indicated they were served around this date. The matter was listed for a preliminary hearing on 18 July 2023, as displayed on page 2 of the stamped application. This information is recorded in the application; this was copied and made available to the applicant and respondents.
6. As occurred in Ball, there was at least 21 days' notice specified by the Court for the serving of documents and the preliminary hearing and therefore compliance with s 8(1)(a) of the Act. Proof of service to Council was also included in the file and thus the applicant's satisfaction of s 8(1)(b) of the Act had been met.
7. I note commentary referencing Ball on page 29 of the Land and Environment Court Annotated Trees (Disputes between Neighbours) Act 2006, which says; "It is clear that the 21-day period relates to notice of an application having been made not of an intention to lodge an application."
8. Section 9(1) of the Act provides the Court powers 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.
9. Section 10(1)(a) of the Act requires an applicant to make a reasonable effort to reach agreement with the owners of the land on which the tree is situated. Though the respondents claimed this requirement was not satisfied, the applicant provided evidence of an attempt to organise mediation through a Community Justice Centre, the Director of which forwarded mediation requests to the respondents on 28 April and 8 May 2023. The respondents noted not having received or opened these letters, but this effort by the applicant has satisfied that the requirement to make a reasonable effort to reach agreement with the respondents, and thus engaged s 10(1)(a) of the Act. Both parties participated constructively at the hearing and the following commentary by Preston CJ, at [194]-[195] of Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (Robson), provides further explanation to the requirement at s 10(1)(a); "194 The Trees (Disputes Between Neighbours) Act 2006 does not specify any particular time at which the applicant must make a reasonable effort to reach agreement with the tree landowner, other than fixing the end point by requiring that the Court cannot make an order under the Act unless it is satisfied that the applicant has made a reasonable effort to reach agreement with the tree landowner. Hence, although it would be preferable for an applicant to make a reasonable effort to reach agreement with the tree landowner before making application to the Court, so as to avoid court action, there is no requirement to do so and a reasonable effort to reach agreement can be made after making the application at any time up until the Court determines the application. 195 The language in s 10(1)(a) of the Trees (Disputes Between Neighbours) Act 2006 that the applicant has made "a reasonable effort to reach agreement" is less demanding than the language used in provisions of other statutory enactments which require parties to make reasonable attempts to reach agreement in relation to matters claimed in the court originating process..."
10. The next major test that is posed, by s 10(2) of the Act, states: (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.
11. In a guidance decision published in Yang v Scerri [2007] NSWLEC 592, in relation to damage, as a rule of thumb, the 'near future' is deemed to be a period of 12 months from the date of the determination.

Damage to concrete pillars

1. Based on photographs provided by the applicant (in Exhibit C) and a fairly consistent wood decay line at the base of newly exposed fence palings surrounding the site, it appeared that soil level lowering in areas of the applicant's rear yard had exposed many roots, but the timber façade concealed and prevented access to concrete pillars under the dwelling. Though large roots from the Jacaranda were present north of and close to the timber façade, the surface of the adjacent concrete veranda was not cracked or otherwise damaged. Upon assessment, I determined the veranda was level from east to west other than a drainage depression near the eastern end which would shed surface water northward from the veranda to the base of the façade. The veranda surface was also flat when assessed north-south, but uniformly sloped slightly down towards the rear, presumably to allow drainage away from the dwelling.
2. In Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 (Smith) at [62], Craig J noted that "something more than a theoretical possibility is required in order to engage the power under the Trees (Disputes between Neighbours) Act to make an order to remedy, restrain or prevent damage".
3. Though the applicant claimed that roots from the tree had damaged his dwelling's concrete posts, there was no visible or submitted evidence substantiating damage to any concrete pillar, nor evidence of secondary damage to the concrete floor that the pillars supported. In the absence of evidence linking the Jacaranda roots to the pillars other than the general proximity of the roots, I am also not satisfied that damage to a pillar or pillars has been shown to be likely in the near future. Therefore, the claim of root damage to the concrete pillars is refused.

Damage to timber façade

1. Wood decay at the base of eastern end timber façade posts and dark staining on the outer face of the façade's eastern end were indicative of flows and likely pooling of water at the base of the façade's eastern end. The location of decay and staining coincided with the points of water discharge through the recessed lip in the concrete veranda floor edge and secondarily from an adjacent downpipe which discharged roof water near the middle of the base of the façade. I was satisfied that the wood decay at the base of the two east end posts had reduced the posts' stability and facilitated the façade's outward heaving.
2. Photographs in Exhibit C indicated that the timber façade was installed in contact with or very close to a second vertical wall constructed below the veranda from rough concrete and rock rubble. One photograph clearly showed fine rock rubble which had fallen and deposited over time in the narrow gap between the base of the two walls. It is likely that with movement of the façade over time, for example in storms or as a result of swelling and shrinkage of reactive clay soils common to this area, in combination with decreased façade post stability, that rock debris would progressively sift down and consolidate in the widening gap between the two walls and slowly but irresistibly prise open the gap.
3. Upon contemplating this photo, I considered this the likely primary cause of façade damage. Later, I noted the respondents' comment at page 2 of Exhibit 1, that the "applicant's photo also shows that the gap caused by the unaffixed timber façade has allowed debris to collect over time, bearing more weight on the façade likely to causing it to lean further".
4. In Stevens v Russell [2016] NSWLEC 1233 at [41], Commissioner Fakes said: "…it is a common assumption that the mere presence or proximity of a tree is sufficient to conclude that the tree is the cause of the damage. It is not. It is necessary to find evidence to substantiate the assumption that the tree has caused the damage. In the case of alleged root damage, some excavation is usually required."
5. Although large Jacaranda roots had been exposed close to damage at the eastern end of the timber façade, this excavation showed no roots heaving the wall or any other causal link between tree roots and the façade's displacement from vertical. Conversely, reasonable alternative explanations for the damage, evidenced by the applicant's photographs and onsite reality, had been submitted by the respondents. Consequently, I am not satisfied that the tree had damaged the timber façade or is likely to cause such damage in the near future, so this claim is refused.

Sewer pipe damage

1. Mr Win submitted that the tree's roots may be "encroaching the sewer pipes" but again offered no evidence beyond speculation. No sewer pipes damage had been reported, no plumbing invoices were provided, so a nexus between the tree's roots and sewer pipe damage was merely a "theoretical possibility". As Craig J indicated at [62] of Smith, a theoretical possibility of damage caused by a tree is insufficient to engage the power under the Act to make orders. Therefore, the applicant's claim regarding future sewer pipe damage is also refused.
2. The applicant's written and oral submissions implied that all branches and roots of the tree should be restricted to the respondents' land and not encroach beyond the common boundary, but this is not a requirement under the Trees Act. At [56] of Robson, discussing the issue of nuisance, his Honour states that "mere encroachment into the neighbour's land is insufficient to complete a cause of action."
3. For the urban community to gain the myriad benefits that accrue from trees, it is an accepted reality that branches, and particularly roots, commonly encroach across boundaries, usually with little consequence. At [166] of Robson, his Honour noted: "…Hence, damage caused by a tree's roots to buildings, fences, paving or other structures, or to fruit trees, crops, ornamental gardens or other vegetation growing on a neighbour's land, may be covered by the Trees (Disputes between Neighbours) Act 2006 but damage to the surface of the land, such as raising a mound of earth or drying soil without consequential damage to other property would not be covered by the Trees (Disputes between Neighbours) Act 2006…"
4. No damage caused by a tree's roots to buildings, fences, paving or other structures was proven by the applicant on the balance of probabilities, and no claim of damage to fruit trees, crops, ornamental gardens or other vegetation growing on his land was submitted by Mr Win.

Risk of injury

1. Guided by McPherson v Lake [2017] NSWLEC 1081, at [10], in regard to injury, the Court must consider the risk 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.
2. As noted by the Council tree assessment officer, the tree appeared very healthy, and I saw no obvious signs of compromised tree structure suggestive of above ground risk presented by the tree. The applicant made no claim of past branch failures. The applicant claimed that the tree's roots were a trip hazard causing risk of injury, but Mr Win's photographs showed the back yard had been covered in extensive foliage growth which risked such tripping, prior to the yard being cleared and soil being removed to expose the tree's roots.
3. Though I accept that the majority of the exposed roots on the applicant's land emanated from the tree, contrary to the respondents' contention that they belonged to 5 smaller trees and shrubs in the respondents' yard, and one could trip on such roots, I am not satisfied that they are likely to cause injury to any person as they are conspicuous and obvious, and relatively easy to avoid.
4. Further, particularly as previously buried roots appeared to have been excavated and exposed to provide evidence for the applicant, any risk from the exposed roots may simply be remedied by soil infill and top dressing to provide a relatively flat secure surface and facilitate safe, comfortable pedestrian traffic and use of the applicant's rear yard. In The Owners - Strata Plan 8412 v The Owners - Strata Plan 64221 [2022] NSWLEC 1452, at [28], Galwey AC says, "Mr Kurath noted that the tree's surface roots within the Applicant's property might cause a trip hazard, but this could be remedied by top-dressing with soil, removing the trip hazard".
5. Mr Win had claimed that his wife was vulnerable to injury due to advancing age and arthritis, but no appropriate medical evidence was submitted in accordance with the Senior Deputy Registrar's Order 6, from the procedural hearing attended by both parties on 18 July 2023. Consequently, I am not satisfied that the tree's roots represent a genuine risk of injury to persons.
6. As no causal relationship was established between the tree and damage on the applicant's land, and I am not satisfied the tree presents a genuine risk of injury to persons, s 10(2) of the Act is not engaged. Therefore, the Court has no power to make orders. There is also no requirement for me to address s 12 of the Act, but some elements arising in s 12 nonetheless deserve consideration as they are relevant to Mr Win's understanding of the application of the Act.

Discretionary factors - s 12

1. Section 12(h)(i) of the Act considers 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.
2. The applicant's ongoing issue of branches encroaching over the common boundary and leaves and flowers falling or blowing into his property is addressed by Preston CJ, at [171] of Robson; "…annoyance or discomfort to the occupier of the adjoining land occasioned by nuisances of the third kind is not "damage to property on the land" within s 7 of the Trees (Disputes Between Neighbours) Act 2006. Hence, leaves, fruits, seeds, twigs, bark or flowers of trees blown onto a neighbour's land might cause annoyance or discomfort to a neighbour, but unless they also cause damage to property on the neighbour's land they will not be actionable under s 7."
3. Mr Win noted the "frustrating" maintenance burden from such fallen leaves and flowers, and this lament is common to many applications under the Act. In Barker v Kyriakides [2007] NSWLEC 292 (Barker), at [20], the Court established the following Tree Dispute Principle: "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 ordinarily will not provide the basis for ordering removal of or intervention with an urban tree."
4. Jacaranda trees are known to polarise people. Pool owners with trees nearby, and people who demand unblemished outdoor surfaces may be burdened by the leaf and flower drop, while bespoke spring harbour cruises and bus tours traverse areas where Jacaranda trees are large and plentiful, and blossoms most conspicuous. Nonetheless, the leaf loss before flowering and the flower drop is largely restricted to a relatively short period each year from late winter to late spring, and in the context of the applicant's rear yard, such debris that fell or was swept onto the soil surface would likely decompose fairly rapidly and contribute positively to the soil's condition.
5. I acknowledge that the advancing age of the applicant and his wife and the persistence of leaf and flower drop make maintenance demanding during this winter - spring period but leaf and flower drop is not damage, the level of required maintenance is accounted for by the Tree Dispute Principle established in Barker, and no remedy is available under the Act. Professional help is a common requirement as capacity reduces with age.
6. The age and nature of a structure is also considered at s 12(h)(i) of the Act when determining the extent to which a tree may or may not have caused alleged damage. A certain amount of wear and tear is expected to arise with any structure over time. Considering that the applicant's dwelling and timber façade were likely built well before his occupation in 2007, one may expect the structural integrity and anchorage of the façade's posts to have naturally deteriorated in the interim, and for such deterioration to have been exacerbated by ongoing drainage discharge and water pooling.
7. The impact any pruning would have on the tree is considered at s 12(b2) of the Act. Jacaranda trees have specific pruning requirements due to their propensity to develop vigorous epicormic (sucker) growth around pruning wounds and where branches are exposed to increased sunlight. Pruning wounds from removal of branches that previously grew towards the applicant's dwelling were exhibiting suckering regrowth, and this should be formatively pruned, ideally by experienced Australian Quality Framework (AQF) level 3 arborists, to reduce the number of new stems and retain branches growing into appropriate locations. Such works are likely to reduce the frequency and cost of required future pruning. The parties contested past contributions to pruning costs, and, in the absence of Court orders, there are no fixed rules determining who pays. It is not uncommon with overhanging trees, however, for neighbours to share the cost of pruning, with the tree owner retaining control of pruning quality.
8. The tree contributes to the respondents' privacy from the applicant and from a large, stark adjacent apartment block located towards the north-west, and to the amenity of the land on which it is situated. It protects both parties from the sun and wind. Though it is located in the rear yard, due to the nature of its flowers, and moderately large size, the tree is a landscape feature providing public amenity (s 12(b3) and (f)).

Conclusion

1. The onus is on the applicant to prove their case and Mr Win's oral and written submissions, and the evidence adduced on site, were insufficient to prove the claims of damage as a result of the tree. No evidence of damage to any concrete pillar, or to the veranda concrete floor supported by the pillars, was shown in photographs or at the hearing. No concrete pillars appeared accessible for inspection at the hearing, and no attempt was made to show me a pillar or pillar damage.
2. Though exposed large Jacaranda roots were visible about 100 mm from the timber façade's base, there was no indication of roots growing towards the façade, nor of upward heaving indicative of the presence of roots thickening under the façade. Deteriorated timber post bases, and stone rubble progressively accumulating and levering, akin to onion skin weathering, in the narrow gap between the two walls, provided likely and reasonable explanations for the forward displacement of the timber façade, in the absence of evidence of a causal link between roots of the tree and façade damage.
3. Although the applicant anticipated and apprehended damage from the tree's roots "encroaching the sewer pipes", no evidence of past or likely near future sewer pipes damage was submitted. The mere proximity of roots to pipes is insufficient to link roots to pipe damage as appropriately sealed pipes and pipe junctions rarely suffer root incursion.
4. It is of course possible that the tree's roots are impacting and damaging structures on the applicant's land, but in the absence of evidence of any damage to concrete pillars or sewer pipes, or of a link between timber façade damage and a root or roots of the tree, there is no basis to find that damage has occurred, is occurring, or is likely in the coming year, as a result of the tree. An unsubstantiated possibility of damage does not engage the jurisdiction of the Act.
5. I was not satisfied that visible Jacaranda roots, the exposure of which was amplified for the hearing, presented a genuine risk of injury to persons as they were conspicuous and easy to see, distant from pedestrian paths, and could be readily covered to establish or re-establish a relatively safe surface.
6. I concurred with the respondents that the tree provided significant shading and privacy to both parties, and amenity for the respondents and the adjacent local community.
7. Regardless that no causal link was established between the tree and damage on the applicant's land, Mr Win's quest to protect his property is reasonable. Considering the shading, privacy, and amenity benefits the tree provides the respondents, and the plentiful Jacaranda roots visible near the applicant's façade and concealed concrete pillars, I recommend the respondents employ (and pay for) an AQF level 5 arborist to investigate and prune roots, as necessary to minimise potential future structural damage. If required, the arborist could also prune and remove about 5 surface roots that may be trip hazards with only minor tree impact, provided the pruning cuts do not exceed 50 mm diameter. This would mainly relate to the yard's northern side.
8. Though this requires Mr Win's co-operation for access, such a pro-active approach is in both parties' interest as it provides certainty to the root's location and status, and a basis for intervention to roots and/ or structures if required. The following commentary from pages 10-11 of the 2013, Land and Environment Court Annotated Trees Act (with my emphasis), provides further justification; "When the Court has made a decision on a tree application, even if the application was refused, it is possible for an applicant to make a subsequent or fresh application. However, a fresh application can only be made if circumstances have changed since the Court determined the earlier application (Hinde v Anderson & anor [2009] NSWLEC 1148) Changed circumstances can include further damage to property or that damage that existed at the time of the earlier application has been made worse. Likewise, an application originally made on the basis of damage to property does not preclude a subsequent application on likely cause of injury to any person. Equally, an earlier injury application does not preclude a subsequent damage-based application. Further, an application concerning impacts from the canopy of a tree does not preclude another application concerning the roots of that tree or vice versa. However, it is not possible to make a further application if the circumstances have not changed (McCallum v Riordan & anor [2011] NSWLEC 1009; Awad v Hardie (No.3) [2012] NSWLEC 1067). If the nature of the application remains the same but all that has changed is that there is further evidence to support the application, such an application cannot be successful if the new evidence is evidence that could have been available at the time of the original hearing. For example, if an application for damage allegedly caused by the roots of a tree could not be proved because no roots had been exposed and there were no other indicators that could demonstrate satisfactorily that the roots of the tree were the cause of the damage, subsequently exposing the roots to demonstrate them to be the cause of the damage is not a basis for a new application to succeed because the roots could have been exposed at the time of the hearing of the first application (Zangari v Miller (No 2) [2010] NSWLEC 1093; MacPhail & anor v Ware & anor [2012] NSWLEC 1230). Further, it is not appropriate to make a second application in the hope that a different Commissioner will be appointed to hear the matter and thus might give a different decision to that made on the first application."
9. The evidence before the Court has not satisfied s 10(2) of the Act, thus the Court has no power to make orders, and therefore the application is refused.

Orders

1. The Court orders that: 1. The application is refused.

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: 17 January 2024

1. Based on photographs provided by the applicant (in Exhibit C) and a fairly consistent wood decay line at the base of newly exposed fence palings surrounding the site, it appeared that soil level lowering in areas of the applicant's rear yard had exposed many roots, but the timber façade concealed and prevented access to concrete pillars under the dwelling. Though large roots from the Jacaranda were present north of and close to the timber façade, the surface of the adjacent concrete veranda was not cracked or otherwise damaged. Upon assessment, I determined the veranda was level from east to west other than a drainage depression near the eastern end which would shed surface water northward from the veranda to the base of the façade. The veranda surface was also flat when assessed north-south, but uniformly sloped slightly down towards the rear, presumably to allow drainage away from the dwelling.
2. In Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 (Smith) at [62], Craig J noted that "something more than a theoretical possibility is required in order to engage the power under the Trees (Disputes between Neighbours) Act to make an order to remedy, restrain or prevent damage".
3. Though the applicant claimed that roots from the tree had damaged his dwelling's concrete posts, there was no visible or submitted evidence substantiating damage to any concrete pillar, nor evidence of secondary damage to the concrete floor that the pillars supported. In the absence of evidence linking the Jacaranda roots to the pillars other than the general proximity of the roots, I am also not satisfied that damage to a pillar or pillars has been shown to be likely in the near future. Therefore, the claim of root damage to the concrete pillars is refused.

1. Wood decay at the base of eastern end timber façade posts and dark staining on the outer face of the façade's eastern end were indicative of flows and likely pooling of water at the base of the façade's eastern end. The location of decay and staining coincided with the points of water discharge through the recessed lip in the concrete veranda floor edge and secondarily from an adjacent downpipe which discharged roof water near the middle of the base of the façade. I was satisfied that the wood decay at the base of the two east end posts had reduced the posts' stability and facilitated the façade's outward heaving.
2. Photographs in Exhibit C indicated that the timber façade was installed in contact with or very close to a second vertical wall constructed below the veranda from rough concrete and rock rubble. One photograph clearly showed fine rock rubble which had fallen and deposited over time in the narrow gap between the base of the two walls. It is likely that with movement of the façade over time, for example in storms or as a result of swelling and shrinkage of reactive clay soils common to this area, in combination with decreased façade post stability, that rock debris would progressively sift down and consolidate in the widening gap between the two walls and slowly but irresistibly prise open the gap.
3. Upon contemplating this photo, I considered this the likely primary cause of façade damage. Later, I noted the respondents' comment at page 2 of Exhibit 1, that the "applicant's photo also shows that the gap caused by the unaffixed timber façade has allowed debris to collect over time, bearing more weight on the façade likely to causing it to lean further".
4. In Stevens v Russell [2016] NSWLEC 1233 at [41], Commissioner Fakes said:

"...it is a common assumption that the mere presence or proximity of a tree is sufficient to conclude that the tree is the cause of the damage. It is not. It is necessary to find evidence to substantiate the assumption that the tree has caused the damage. In the case of alleged root damage, some excavation is usually required."

1. Although large Jacaranda roots had been exposed close to damage at the eastern end of the timber façade, this excavation showed no roots heaving the wall or any other causal link between tree roots and the façade's displacement from vertical. Conversely, reasonable alternative explanations for the damage, evidenced by the applicant's photographs and onsite reality, had been submitted by the respondents. Consequently, I am not satisfied that the tree had damaged the timber façade or is likely to cause such damage in the near future, so this claim is refused.

1. Mr Win submitted that the tree's roots may be "encroaching the sewer pipes" but again offered no evidence beyond speculation. No sewer pipes damage had been reported, no plumbing invoices were provided, so a nexus between the tree's roots and sewer pipe damage was merely a "theoretical possibility". As Craig J indicated at [62] of Smith, a theoretical possibility of damage caused by a tree is insufficient to engage the power under the Act to make orders. Therefore, the applicant's claim regarding future sewer pipe damage is also refused.
2. The applicant's written and oral submissions implied that all branches and roots of the tree should be restricted to the respondents' land and not encroach beyond the common boundary, but this is not a requirement under the Trees Act. At [56] of Robson, discussing the issue of nuisance, his Honour states that "mere encroachment into the neighbour's land is insufficient to complete a cause of action."
3. For the urban community to gain the myriad benefits that accrue from trees, it is an accepted reality that branches, and particularly roots, commonly encroach across boundaries, usually with little consequence. At [166] of Robson, his Honour noted:

"...Hence, damage caused by a tree's roots to buildings, fences, paving or other structures, or to fruit trees, crops, ornamental gardens or other vegetation growing on a neighbour's land, may be covered by the Trees (Disputes between Neighbours) Act 2006 but damage to the surface of the land, such as raising a mound of earth or drying soil without consequential damage to other property would not be covered by the Trees (Disputes between Neighbours) Act 2006..."

1. No damage caused by a tree's roots to buildings, fences, paving or other structures was proven by the applicant on the balance of probabilities, and no claim of damage to fruit trees, crops, ornamental gardens or other vegetation growing on his land was submitted by Mr Win.

1. Guided by McPherson v Lake [2017] NSWLEC 1081, at [10], in regard to injury, the Court must consider the risk 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.
2. As noted by the Council tree assessment officer, the tree appeared very healthy, and I saw no obvious signs of compromised tree structure suggestive of above ground risk presented by the tree. The applicant made no claim of past branch failures. The applicant claimed that the tree's roots were a trip hazard causing risk of injury, but Mr Win's photographs showed the back yard had been covered in extensive foliage growth which risked such tripping, prior to the yard being cleared and soil being removed to expose the tree's roots.
3. Though I accept that the majority of the exposed roots on the applicant's land emanated from the tree, contrary to the respondents' contention that they belonged to 5 smaller trees and shrubs in the respondents' yard, and one could trip on such roots, I am not satisfied that they are likely to cause injury to any person as they are conspicuous and obvious, and relatively easy to avoid.
4. Further, particularly as previously buried roots appeared to have been excavated and exposed to provide evidence for the applicant, any risk from the exposed roots may simply be remedied by soil infill and top dressing to provide a relatively flat secure surface and facilitate safe, comfortable pedestrian traffic and use of the applicant's rear yard. In The Owners - Strata Plan 8412 v The Owners - Strata Plan 64221 [2022] NSWLEC 1452, at [28], Galwey AC says, "Mr Kurath noted that the tree's surface roots within the Applicant's property might cause a trip hazard, but this could be remedied by top-dressing with soil, removing the trip hazard".
5. Mr Win had claimed that his wife was vulnerable to injury due to advancing age and arthritis, but no appropriate medical evidence was submitted in accordance with the Senior Deputy Registrar's Order 6, from the procedural hearing attended by both parties on 18 July 2023. Consequently, I am not satisfied that the tree's roots represent a genuine risk of injury to persons.
6. As no causal relationship was established between the tree and damage on the applicant's land, and I am not satisfied the tree presents a genuine risk of injury to persons, s 10(2) of the Act is not engaged. Therefore, the Court has no power to make orders. There is also no requirement for me to address s 12 of the Act, but some elements arising in s 12 nonetheless deserve consideration as they are relevant to Mr Win's understanding of the application of the Act.

1. Section 12(h)(i) of the Act considers 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.
2. The applicant's ongoing issue of branches encroaching over the common boundary and leaves and flowers falling or blowing into his property is addressed by Preston CJ, at [171] of Robson;

"...annoyance or discomfort to the occupier of the adjoining land occasioned by nuisances of the third kind is not "damage to property on the land" within s 7 of the Trees (Disputes Between Neighbours) Act 2006. Hence, leaves, fruits, seeds, twigs, bark or flowers of trees blown onto a neighbour's land might cause annoyance or discomfort to a neighbour, but unless they also cause damage to property on the neighbour's land they will not be actionable under s 7."

1. Mr Win noted the "frustrating" maintenance burden from such fallen leaves and flowers, and this lament is common to many applications under the Act. In Barker v Kyriakides [2007] NSWLEC 292 (Barker), at [20], the Court established the following Tree Dispute Principle:

"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 ordinarily will not provide the basis for ordering removal of or intervention with an urban tree."

1. Jacaranda trees are known to polarise people. Pool owners with trees nearby, and people who demand unblemished outdoor surfaces may be burdened by the leaf and flower drop, while bespoke spring harbour cruises and bus tours traverse areas where Jacaranda trees are large and plentiful, and blossoms most conspicuous. Nonetheless, the leaf loss before flowering and the flower drop is largely restricted to a relatively short period each year from late winter to late spring, and in the context of the applicant's rear yard, such debris that fell or was swept onto the soil surface would likely decompose fairly rapidly and contribute positively to the soil's condition.
2. I acknowledge that the advancing age of the applicant and his wife and the persistence of leaf and flower drop make maintenance demanding during this winter - spring period but leaf and flower drop is not damage, the level of required maintenance is accounted for by the Tree Dispute Principle established in Barker, and no remedy is available under the Act. Professional help is a common requirement as capacity reduces with age.
3. The age and nature of a structure is also considered at s 12(h)(i) of the Act when determining the extent to which a tree may or may not have caused alleged damage. A certain amount of wear and tear is expected to arise with any structure over time. Considering that the applicant's dwelling and timber façade were likely built well before his occupation in 2007, one may expect the structural integrity and anchorage of the façade's posts to have naturally deteriorated in the interim, and for such deterioration to have been exacerbated by ongoing drainage discharge and water pooling.
4. The impact any pruning would have on the tree is considered at s 12(b2) of the Act. Jacaranda trees have specific pruning requirements due to their propensity to develop vigorous epicormic (sucker) growth around pruning wounds and where branches are exposed to increased sunlight. Pruning wounds from removal of branches that previously grew towards the applicant's dwelling were exhibiting suckering regrowth, and this should be formatively pruned, ideally by experienced Australian Quality Framework (AQF) level 3 arborists, to reduce the number of new stems and retain branches growing into appropriate locations. Such works are likely to reduce the frequency and cost of required future pruning. The parties contested past contributions to pruning costs, and, in the absence of Court orders, there are no fixed rules determining who pays. It is not uncommon with overhanging trees, however, for neighbours to share the cost of pruning, with the tree owner retaining control of pruning quality.
5. The tree contributes to the respondents' privacy from the applicant and from a large, stark adjacent apartment block located towards the north-west, and to the amenity of the land on which it is situated. It protects both parties from the sun and wind. Though it is located in the rear yard, due to the nature of its flowers, and moderately large size, the tree is a landscape feature providing public amenity (s 12(b3) and (f)).

1. The onus is on the applicant to prove their case and Mr Win's oral and written submissions, and the evidence adduced on site, were insufficient to prove the claims of damage as a result of the tree. No evidence of damage to any concrete pillar, or to the veranda concrete floor supported by the pillars, was shown in photographs or at the hearing. No concrete pillars appeared accessible for inspection at the hearing, and no attempt was made to show me a pillar or pillar damage.
2. Though exposed large Jacaranda roots were visible about 100 mm from the timber façade's base, there was no indication of roots growing towards the façade, nor of upward heaving indicative of the presence of roots thickening under the façade. Deteriorated timber post bases, and stone rubble progressively accumulating and levering, akin to onion skin weathering, in the narrow gap between the two walls, provided likely and reasonable explanations for the forward displacement of the timber façade, in the absence of evidence of a causal link between roots of the tree and façade damage.
3. Although the applicant anticipated and apprehended damage from the tree's roots "encroaching the sewer pipes", no evidence of past or likely near future sewer pipes damage was submitted. The mere proximity of roots to pipes is insufficient to link roots to pipe damage as appropriately sealed pipes and pipe junctions rarely suffer root incursion.
4. It is of course possible that the tree's roots are impacting and damaging structures on the applicant's land, but in the absence of evidence of any damage to concrete pillars or sewer pipes, or of a link between timber façade damage and a root or roots of the tree, there is no basis to find that damage has occurred, is occurring, or is likely in the coming year, as a result of the tree. An unsubstantiated possibility of damage does not engage the jurisdiction of the Act.
5. I was not satisfied that visible Jacaranda roots, the exposure of which was amplified for the hearing, presented a genuine risk of injury to persons as they were conspicuous and easy to see, distant from pedestrian paths, and could be readily covered to establish or re-establish a relatively safe surface.
6. I concurred with the respondents that the tree provided significant shading and privacy to both parties, and amenity for the respondents and the adjacent local community.
7. Regardless that no causal link was established between the tree and damage on the applicant's land, Mr Win's quest to protect his property is reasonable. Considering the shading, privacy, and amenity benefits the tree provides the respondents, and the plentiful Jacaranda roots visible near the applicant's façade and concealed concrete pillars, I recommend the respondents employ (and pay for) an AQF level 5 arborist to investigate and prune roots, as necessary to minimise potential future structural damage. If required, the arborist could also prune and remove about 5 surface roots that may be trip hazards with only minor tree impact, provided the pruning cuts do not exceed 50 mm diameter. This would mainly relate to the yard's northern side.
8. Though this requires Mr Win's co-operation for access, such a pro-active approach is in both parties' interest as it provides certainty to the root's location and status, and a basis for intervention to roots and/ or structures if required. The following commentary from pages 10-11 of the 2013, Land and Environment Court Annotated Trees Act (with my emphasis), provides further justification;

"When the Court has made a decision on a tree application, even if the application was refused, it is possible for an applicant to make a subsequent or fresh application. However, a fresh application can only be made if circumstances have changed since the Court determined the earlier application (Hinde v Anderson & anor [2009] NSWLEC 1148) Changed circumstances can include further damage to property or that damage that existed at the time of the earlier application has been made worse. Likewise, an application originally made on the basis of damage to property does not preclude a subsequent application on likely cause of injury to any person. Equally, an earlier injury application does not preclude a subsequent damage-based application. Further, an application concerning impacts from the canopy of a tree does not preclude another application concerning the roots of that tree or vice versa.

However, it is not possible to make a further application if the circumstances have not changed (McCallum v Riordan & anor [2011] NSWLEC 1009; Awad v Hardie (No.3) [2012] NSWLEC 1067). If the nature of the application remains the same but all that has changed is that there is further evidence to support the application, such an application cannot be successful if the new evidence is evidence that could have been available at the time of the original hearing. For example, if an application for damage allegedly caused by the roots of a tree could not be proved because no roots had been exposed and there were no other indicators that could demonstrate satisfactorily that the roots of the tree were the cause of the damage, subsequently exposing the roots to demonstrate them to be the cause of the damage is not a basis for a new application to succeed because the roots could have been exposed at the time of the hearing of the first application (Zangari v Miller (No 2) [2010] NSWLEC 1093; MacPhail & anor v Ware & anor [2012] NSWLEC 1230). Further, it is not appropriate to make a second application in the hope that a different Commissioner will be appointed to hear the matter and thus might give a different decision to that made on the first application."

1. The evidence before the Court has not satisfied s 10(2) of the Act, thus the Court has no power to make orders, and therefore the application is refused.