Hoare v Colby

[2025] NSWLEC 1264

Land and Environment Court

New South Wales

Medium Neutral Citation:

Hoare v Colby [2025] NSWLEC 1264

Hearing dates:

21 March 2025

Date of orders:

21 March 2025

Decision date:

21 March 2025

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1)   The application to remove the trees is refused.

(2)   For as long as Trees 1 and 2 remain, the respondents are to engage and pay for a suitably insured and qualified (minimum AQF level 3) arborist or horticulturist to prune the trees during the month of April each year, beginning April 2025, as follows:

(a)   Remove any branches within 200 mm of the adjoining building’s brick wall, but avoiding the removal of any branches of Tree 1 (crape myrtle) that are greater than 60 mm in diameter;

(b)   Reduce branches above the adjoining building by no more than 20% total crown mass of each tree.

(3)   The works in Order (2) must be done in accordance with AS4373:2007 ‘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, or the occupant of the applicant’s property, 7 days’ notice of each occurrence of the works in Order (2).

(5)   The applicant and the occupants of the applicant’s property are to allow all access required for completion of each occurrence of the works in Order (2) during reasonable hours of the day.

(6)   The exhibits are retained.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – neighbouring trees – risk of damage or injury – whether tree removal is required

Legislation Cited:

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

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292

Freeman v Dillon [2012] NSWLEC 1057

Hendry v Olsson [2010] NSWLEC 1302

Yang v Scerri [2007] NSWLEC 592

Texts Cited:

Australian Standard, AS 4373:2007 ‘Pruning of amenity trees’ (March 2007)

Safe Work Australia, ‘Guide to managing risks of tree trimming and removal work’ (July 2016)

Category:

Principal judgment

Parties:

Glen Hoare (Applicant)
Martin Colby (First Respondent)
Heather Colby (Second Respondent)

Representation:

Counsel:
G Hoare (Self-represented) (Applicant)
M Colby (Self-represented) (First Respondent)
H Colby (Self-represented) (Second Respondent)

File Number(s):

2025/10167

Publication restriction:

Nil

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Background

1. COMMISSIONER: Heather and Martin Colby live at their residential property in Kendall. Plantings along their western boundary include two mature trees that have clearly grown there for some decades:

1. Tree 1: Crape myrtle (Lagerstroemia indica) approximately 8 metres tall with a stem diameter of 50 cm;

2. Tree 2: Pink bottlebrush (possibly Callistemon citrinus, syn. Melaleuca citrina) approximately 10 metres tall with two stems each approximately 30 cm in diameter.

2. In or around 2018, a building was constructed on the neighbouring property to the west with a brick wall on or close to the common boundary. Glen Hoare, an owner of that property, wants the two trees removed. The Colbys do not wish to remove the trees, so Mr Hoare has applied to the Court seeking orders for the trees to be removed, giving the following reasons (answer to Question 4, Form H, Exhibit A):

“• Both trees are fire hazards as they both protrude above the fire wall.

• If T1 branches grow in the direction of the wall, the wall may crack or get damaged.

• Shade from both trees are causing [sic] the internal mason walls to become damp, which in turn is causing mould to grow internally and is posing a threat to our health.

• Roots from the tree could crack building foundations.

• Branches may damage roof if they were to snap/fall off.”

3. The hearing took place onsite, allowing me to observe the trees. I rely on my own arboricultural expertise and experience in making this decision, along with Mr Hoare’s application and the Colbys’ written response. The parties were self-represented.

Framework for this decision

4. Mr Hoare has applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act). The trees are on land adjoining his land. The orders he seeks are orders the Court can make at s 9 of the Trees Act.

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

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

• For each tree, can the Court be satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or is likely to cause injury to any person: s 10(2)?

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

Reasonable effort to reach agreement

6. The parties have communicated verbally. The Colbys will not agree to Mr Hoare’s requests to remove the tree. I am satisfied that Mr Hoare has made a reasonable effort to reach agreement with the Colbys and that the timeframe set down by the Court has allowed for the required notice of the application.

Damage or injury

Branches damaging the building

7. Mr Hoare submitted that he has prevented branches damaging his building by cutting some branches from both trees. I observed only small branches of both trees directly touching the building – these may cause minor scratching of the bricks, but no significant damage is likely to result. I observed no other branches that are likely to cause damage. I accept Mr Hoare’s submission that branches may grow towards the building and cause damage to the box gutter at the top of the brick wall. This could be prevented by regular pruning.

Debris

8. Mr Hoare submitted that he must clear debris from his box gutter to prevent it becoming blocked. Branches of both trees grow higher than the height of the wall and some grow above his roof. No damage has resulted from debris falling into the gutter. I understand Mr Hoare and his family are moving abroad and renting out the property and he is concerned about its ongoing maintenance in his absence. However, that fact does not shift any responsibility of his property maintenance to the Colbys. If damage is likely due to a lack of reasonable property maintenance, this would not justify the making of orders to interfere with the trees: see Barker v Kyriakides [2007] NSWLEC 292 (“Barker”) at [20].

Mould

9. Mr Hoare submitted that the trees’ shade causes mould to grow on his internal walls, posing a risk to health of any occupiers. The Court has no evidence that the trees have caused mould to grow in his building, but even if this could be shown, it is unlikely to result in the making of any orders. The principle regarding reasonable property maintenance in Barker was extended to include the cleaning of mould from surfaces in Hendry v Olsson [2010] NSWLEC 1302 at [12]–[14].

Fire

10. Mr Hoare is concerned that the presence of the trees increases the risk of fire damage to his property. For two reasons, this does not provide a reason to make orders in this matter. First, the trees were a known presence when the building wall was built on or close to the boundary, and any measures to mitigate a risk of fire should have been considered at the time. Second, damage by fire is not damage caused by trees: see Freeman v Dillon [2012] NSWLEC 1057 at [84]–[86].

Root damage

11. No signs of root damage to the wall were seen during the hearing and Mr Hoare does not suggest the trees have caused damage. He submitted that damage is likely because the trees are so close to the wall. However, without any evidence to demonstrate this, the Court cannot make orders on this element of the application. It is more than a mere possibility that damage may occur – the Court must not make an order unless it is satisfied that the trees are likely to cause damage to the applicant’s property in the near future: s 10(2)(a) of the Trees Act. It must be “likely” to occur “within the next 12 months” or so: see Yang v Scerri [2007] NSWLEC 592 at [14].

Consideration of relevant matters at s 12 of the Trees Act

12. As I have found above, the only reason to make orders in this application is to prevent minor damage from branches of both trees growing against the building. Before making any orders, I consider the matters at s 12 of the Trees Act. Below I discuss those that are relevant to my decision.

13. Both trees are close to the boundary and the neighbouring brick wall. They were present when the neighbouring building was constructed.

14. Pruning for building clearance would not adversely affect the trees.

15. The trees provide shade and cooling; they contribute significantly to the landscape value of the Colbys’ property and to amenity beyond their property.

16. Considering their value to the Colbys, I find that removing the trees would be disproportionate to the relatively minor nuisance and risk of damage to Mr Hoare’s property. Only regular pruning is required to maintain building clearance. No structural branches are to be removed. The Colbys submitted that they would need to engage a contractor to do this. Pursuant to s 6(3) of the Trees Act, they will not require consent from Port Macquarie Council to carry out the tree works ordered below.

Orders

17. The Court orders:

1. The application to remove the trees is refused.

2. For as long as Trees 1 and 2 remain, the respondents are to engage and pay for a suitably insured and qualified (minimum AQF level 3) arborist or horticulturist to prune the trees during the month of April each year, beginning April 2025, as follows:

1. Remove any branches within 200 mm of the adjoining building’s brick wall, but avoiding the removal of any branches of Tree 1 (crape myrtle) that are greater than 60 mm in diameter;

2. Reduce branches above the adjoining building by no more than 20% total crown mass of each tree.

3. The works in Order (2) must be done in accordance with AS4373:2007 ‘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, or the occupant of the applicant’s property, 7 days’ notice of each occurrence of the works in Order (2).

5. The applicant and the occupants of the applicant’s property are to allow all access required for completion of each occurrence of the works in Order (2) during reasonable hours of the day.

6. The exhibits are retained.

D Galwey

Acting Commissioner of the Court

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Decision last updated: 24 April 2025