James v Hillier

[2025] NSWLEC 1181

Land and Environment Court

New South Wales

Medium Neutral Citation:

James v Hillier [2025] NSWLEC 1181

Hearing dates:

26 November 2024

Date of orders:

26 March 2025

Decision date:

26 March 2025

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

The Court orders that:

(1) The respondents shall engage and pay Australian Qualification Framework (AQF) level 3 arborists with all appropriate insurances (the arborists), to remove Cypress trees 8-11 inclusive, and 17, per the applicants’ site diagram, to near ground level, within 60 days of the date of these orders.

(2) The respondents shall engage and pay the arborists to prune Cypress trees 1, 6, 7, 13, 14, 19, 21, and 22, per the applicants’ site diagram, to remove all branches impacting the boundary fence or within 150mm of the top of the boundary fence, and all branches likely to grow to damage the boundary fence in the near future, within 60 days of the date of these orders.

(3) The respondents shall engage and pay a fencing contractor with all appropriate insurances, to repair the section of boundary fence levered over by the Cypress trees, so it is rigid and vertical, with all palings intact, within 14 days of the completion of all Cypress tree removals and pruning.

(4) The respondents shall engage and pay the arborists to prune lower branches from 7 Lilly Pilly trees located adjacent to the applicants’ garage to provide clearance of not less than 800mm and not more than 1m between the lowest Lilly Pilly branches and the garage roof, within 60 days of the date of these orders.

(5) The applicants and the respondents shall each procure one itemised quotation for the works specified in Order (4), including removal/ chipping of branch debris and tidying the site from AQF level 3 arborists with all appropriate insurances, and exchange said quotations by email, within 30 days of the date of these orders. Within 7 days of the completion of the works in Order (4), the respondents shall email the applicants a copy of the paid invoice for the works in Order (4). Within 7 days of receipt of the copy of the paid invoice for the works in Order (4), the applicants shall pay the respondents the total of the lower of the two said quotations by Electronic funds transfer.

(6) All pruning works shall be undertaken in accordance with AS4373-2007, Pruning of amenity trees.

(7) All tree works shall be undertaken in accordance with Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016.

(8) The applicants shall provide all reasonable access to the respondents’ arborists to their property for undertaking the works, upon receipt of at least 72 hours’ emailed notice from the respondents.

(9) The works shall be completed during reasonable working hours.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) –overhanging branches – leaves falling onto roofs and into gutters – damage to timber fence – apprehension of further damage, and of injury

Legislation Cited:

Dividing Fences Act 1991, s 3

Environmental Planning and Assessment Act 1979

HeritageAct1977

Trees (Disputes Between Neighbours) Act 2006

Pt 2, ss 6, 7, 8, 9,10,12

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Pt 2.3

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292

Black v Johnson (No 2) [2007] NSWLEC 513

Brown v Weaver [2007] NSWLEC 738

Freeman v Dillon [2012] NSWLEC 1057

Gardiner v Bisley [2021] NSWLEC 1176

Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152

Yang v Scerri [2007] NSWLEC 592

Texts Cited:

Central Coast Development Control Plan 2022

Standards Australia, AS4373-2007 Pruning of amenity trees (2007)

Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work (2016)

Category:

Principal judgment

Parties:

Rob James (First Applicant)
Kim James (Second Applicant)
Annette Faye Hillier (First Respondent)
Michael Norman Hillier (Second Respondent)

Representation:

R & K James (Self-represented) (Applicants)

Counsel:
C. Koikas (Respondents)

Solicitors:
Conditsis Lawyers (Respondents)

File Number(s):

2024/332966

Publication restriction:

Nil

Judgment

Background

1. COMMISSIONER: Kim James and Rob James (the applicants) share a long side boundary with Annette Faye Hillier and Michael Norman Hillier (the respondents) between their properties in Matcham. The common boundary sloped downhill from around southeast at the street entrance to northwest at the rear. The applicants’ property was located northeast of the respondents’ land.

2. The parties’ large lot residential properties fell under the jurisdiction of Central Coast Council. The surrounding area was characterised by dense bushland with tall trees and lush understoreys and nearby properties contained a broad range of sub-tropical and temperate vegetation. The respondents had occupied their property for about 13 years while the applicants purchased in December 2022.

3. About 30 years prior, former owners of the respondents’ property planted trees along the common boundary. Individual specimen trees were planted near the street frontage, then a row of about 7 Lilly Pilly trees (Syzygium sp) further down the slope. The melded canopies of about 16 Leighton Green Cypress trees (x Cupressocyparis leylandii ‘Leighton Green’) (Cypress), planted fairly close together along the middle half of the common boundary, concealed the parties’ dwellings from oversight and provided privacy. The Cypress averaged about 15 metres (m) in height, and most had been planted unusually close to the shared boundary fence.

4. While the respondents appreciated the privacy and other benefits their inherited trees provided, Mr and Mrs James found them problematic and did not want any of the Hillier’s trees encroaching beyond the common boundary.

5. Mr and Mrs James were particularly concerned about the Cypress as some trees’ trunks and branches were damaging the timber boundary fence and dense foliage encroached beyond the boundary near the applicants’ dwelling. The applicants wanted overhanging branches pruned from a Fig tree in the respondents’ front yard, and Mr James was worried about branches and leaves falling from a fairly large Silky Oak and (a misidentified) Pecan tree towards the back of the property. He also wanted branches removed from two adjacent Cypress trees.

6. Soon after occupation, the applicants extended their dwelling along the common boundary towards the street frontage by about 12m, for the installation of a multi car garage. The gap between the common boundary and the back of the garage was about 1.3m where the garage joined the dwelling, but the gap narrowed to about 1m at the southeastern end.

7. The canopies of the Lilly Pilly trees were overhanging the applicants’ new garage and some of the Cypress tree foliage extended close to the garage roof. The applicants claimed the respondents’ trees were polluting their water supply, which was collected from the gutters of their dwelling and the new garage.

8. Consequently, Mr and Mrs James wanted all 19 Cypress trees removed, the Lilly Pilly trees removed or heavily pruned to fence height and the aforementioned specimen trees pruned back beyond the boundary. The Hilliers valued the trees, and specially wanted the Cypress trees retained, given their contributions to privacy and aesthetics. The respondents strongly resisted removal or heavy pruning, particularly as the trees now impacting the garage were long established prior to its construction. The parties had reached an impasse.

9. Consequently, Mr and Mrs James made an application, pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) proposing the Court make orders to remedy damage and risk of injury by Mr and Mrs Hillier’s trees.

10. The application is assessed under the following provisions of the Trees Act:

Part 2 Court orders—trees that cause or are likely to cause damage or injury

1. 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.

1. Notice of application for order to be given to owners of affected land

(1)  An applicant for an order under this Part must give notice of the lodging of the application and the terms of any order sought at least 21 days before a hearing in relation to the application 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.

(2)  The Court may direct that notice of an application be given to a person or that notice be given in a specified manner or within a specified period.

(3)  The Court may waive the requirement to give notice or vary the period of notice under this section if it thinks it appropriate to do so in the circumstances.

1. 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.

1. 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.

…

1. 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.

The on-site hearing

11. Both parties attended the on-site hearing. The applicants were self-represented while the respondents were represented by Mr Koikas of Counsel. As is customary, the trees were initially inspected from the respondents’ property followed by assessment of the trees’ impact from the applicants’ land, prior to oral submissions.

The applicants’ submission

12. Applicants’ proposed orders:

“(1) Remove all dangerously tall, leaning, and fence damaging Leighton Green Cypress trees (19 #).

(2) Trim 6 Lilly Pilly’s back to fence height (or to ground) as (they) grow and lean over our home.

(3) Trim Pecan, Silky Oak and Ficus neatly, so as not to grow over our property.”

13. The applicants claimed the Cypress trees were not appropriate for a large lot residential property and were “all on (an) excessive dangerous lean and are at risk of falling on our home”. They contended that “large limbs fall and could kill someone” and the Cypress trees were likely to grow much bigger.

14. During the inspection, Mr James indicated Cypress trees that were impacting the timber paling fence. He claimed the fence was being pushed towards his land by the trees’ trunks, and the top of the fence was being broken by branches. Mr James contended at least six of the trees were currently causing major fence damage, and all the Cypress trees needed to be removed.

15. Mr James contended the fence was not on the surveyed boundary but was about 300 millimetres within his property, such that the bases of the Cypress trees were growing on and across the boundary and on his land. In an email to the Court of 8 October 2024, Mr James noted that the fence “really should be moved toward our neighbours to the true boundary” but “[w]e are happy though to again be the bigger people and just leave the fence where it is, but just simply have it fixed and straightened …”

16. The applicants claimed the Cypress trees were a fire risk because the area was prone to bush fires, and the trees were less than 3m from their dwelling. Mr James submitted a copy of a 10/50 online tool search result which indicated “the parcel of land you have selected is located in a designated 10/50 vegetation entitlement clearing area”, under the Rural Fire Service 10/50 Code of Practice.

17. Mr and Mrs James contended the Cypress and the Lilly Pilly trees, “block and stain drains and roof, including stormwater”, and alleged they relied on tank water for drinking. The applicants claimed that branches, leaves, and other debris fall into roof gutters, spoil their drinking water, and will affect human health.

18. Mr James said leaves and branches were also falling onto a detached studio at the back of the property, thus he wanted branches pruned to prevent debris accumulation and potential damage.

19. No specific justification was provided for pruning the Fig tree in the front yard, other than wanting encroaching branches trimmed neatly and increased light. However, Mr James claimed both the Silky Oak and the Pecan trees, located towards the back of the respondents’ property, had dropped dangerous branches and that two low branches from a nearby pair of Cypress trees needed pruning back to the boundary.

The respondents’ position:

20. The Hillier’s reiterated the boundary trees provided privacy which they valued highly. The respondents contended that privacy was a primary reason for their choice of a large lot residential property and retention of the Cypress trees to this end, was a reasonable expectation. They said the trees’ provided habitat for wildlife.

21. Mr and Mrs Hillier noted significant aesthetic benefits from maintaining the flowing continuity of the row of Cypress trees and the trees’ role protecting the applicants’ land from the impact of strong southerly winds. If gaps between trees were created by Cypress tree removal, Mrs Hillier was concerned that exposure to stronger winds and altered wind patterns would damage adjacent remaining trees.

22. The Hillier’s claimed the damage to the fence was minor, that the lean was not severe, and only the top timber palings were damaged. The respondents contended the fence damage was thus not sufficiently serious to justify removal of the trees, and that removal should be deferred. They also believed the fence may have been damaged before Mr and Mrs James moved into their property.

23. The respondents said the applicant submitted no evidence to substantiate health problems as a result of leaves or other tree debris getting into the drinking water. They claimed that even if the water was unsafe, the water tanks could have replaceable filters installed, and leaves and organic matter in tanks was not unusual. Further, though the garage roof had gutter guard, available superior gutter guards were likely to be more effective.

24. Mr and Mrs Hillier claimed that constructing the garage addition very close to the boundary, under the canopies of long-established Lilly Pilly and Cypress trees, was an ill-considered design. Given that it was predictable that leaves and similar debris would fall or blow from the trees onto the applicants’ roofs, the respondents alleged it was unreasonable for the applicants to expect the trees to be removed or heavily pruned when this occurred.

25. With respect to alleged bushfire risk, the respondents contended that had Council considered the trees to be a fire safety risk, Council would have required a much greater separation between the applicants’ new garage and the trees. The respondents said the applicants had provided no evidence to substantiate their claim the trees caused bushfire risk.

Findings

Section 7

26. Mr and Mrs James own their property. In his email to the Court of 8 October 2024, Mr James claimed that the common boundary fence was within his property rather than on the true boundary and that the Cypress trees would be located near the middle of the fence if the fence was on the true boundary.

27. Under s 3 of the Dividing Fences Act1991, “dividing fence means a fence separating the land of adjoining owners, whether on common boundary of adjoining lands or on a line other than the common boundary.” Therefore, in the absence of the fence location relative to the boundary being raised with the respondents as an element of Mr and Mrs James’ property purchase of December 2022, or the subject of separate proceedings, the existing dividing fence between the parties is deemed to be the common boundary. It is the shared property of the parties. Notwithstanding the need for minor repairs, the existing fence is a sufficient dividing fence for the purposes of the Dividing Fences Act1991.

26. For the purpose of the Trees Act, provided more than 50% of the base of a tree that straddles a boundary is located on the respondents’ property, the tree is regarded as being situated principally on the respondents’ land, and is the property of the respondents (Brown v Weaver [2007] NSWLEC 738). Where there is doubt, the onus of proof lies with the applicants to prove, on the balance of probability, whether the trees in question are situated substantially on the respondents’ land, or not. In some cases, such determination has required forensic surveys.

27. During the initial site inspection, I observed some Cypress trees close to or contacting the fence, but all tree bases appeared to be located on the respondents’ property, adjoining the applicants’ land. Mr James presented no evidence to substantiate his claims regarding the fence and boundary locations, no survey pegs, sting lines, or any other evidence. Consequently, s 7 of the Trees Act is engaged.

Section 8

30. Mr James provided evidence of service on Central Coast Council (Council) and on the respondents. Both applicants attended the procedural hearing of 15 October 2024, along with Mr Hous, Solicitor for the respondents. The timeframe provided by the Court prior to the onsite hearing satisfied the notice requirement for service of the Registrar’s orders. Therefore, s 8(1) of the Trees Act is engaged.

31. In two emails to the Court on 6 November 2024, Mr James advised that the respondents’ submissions had been emailed and delivered later than the deadline of the Court orders. In such circumstances, the Court’s response is determined upon consideration of the nature and extent of disadvantage the other party incurs as a consequence of such late lodgement.

32. Notwithstanding that Mr Hillier was undergoing emergency treatment in hospital for a serious illness, the documents were emailed and delivered to the applicants within about 75 minutes of the specified deadline of 4:30pm on 6 November 2024. As the onsite hearing was almost three weeks hence, any disadvantage to the applicants was trivial.

Section 10(1)

33. Within the Application Claim Details (Form H), the applicants claimed an agreement had been struck with Mr and Mrs Hillier to remove and prune the respondents’ trees, following an inspection of the trees from the applicants’ property. Mr James said a quote was accepted for the works to proceed but the respondents terminated the agreement. Though Mrs Hillier professed an alternative perspective of the situation, I am satisfied that the applicant’s had clearly and repeatedly communicated their preferences for the respondents’ trees.

34. Consequently, regardless that the parties’ positions were polarised, I am satisfied the applicants made a reasonable effort to reach agreement with the owners of the land on which the trees are situated, such that s 10(1)(a) is engaged. Section 10(1)(b) was also engaged by satisfaction of s 8 of the Trees Act.

Section 10(2)

35. The next major test that is posed by s 10(2) of the Trees Act is that the Court must be satisfied that the tree/s 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.

Fence damage

36. Although the Cypress trees were planted too close to the boundary, their proximity to the fence was not uniform, but varied from tree to tree. Some trees were smaller, and some were simply planted further away. Nonetheless, I was satisfied that the trunks of 5 Cypress trees were in such firm contact with fence posts or rails that they were causing damage by levering the fence towards the applicants’ land. In the absence of intervention, I was also satisfied that many of the trees causing current damage were likely to cause additional damage in the near future, where the near future is defined, as a rule of thumb, to be a period of one year (Yang v Scerri [2007] NSWLEC 592, at [14]). Consequently, s 10(2)(a) of the Trees Act is engaged.

37. Branches of a further 8 Cypress trees were damaging palings of the fence. Notwithstanding that much of the damage by branches was relatively minor, even minor damage engages s 10(2)(a) of the Trees Act.

38. Even if the fence was already damaged prior to the applicants’ occupation, the Hillier’s were responsible for damage that occurred during their property ownership of approximately 13 years. It was a reasonable expectation that they would periodically inspect their boundary trees. The fact that the previous owner of the applicants’ property made no application for compensation does not prevent Mr and Mrs James from seeking compensation for current damage, and damage that occurred before their occupation. A change of respondent ownership is relevant for compensation claims, however, as an applicant may only gain compensation for damage from the owner of trees when damage occurred, rather than from a new (respondent) property owner, who is not responsible for damage that occurred when the property was owned by a previous respondent. In that case, a prior respondent may be joined to the proceedings.

Roof damage

39. Notwithstanding that the Lilly Pilly trees were long established before the garage was inserted under their canopies, I am satisfied some branches are close enough to the roof and have a sufficiently fast growth rate, to render the branches likely to cause minor roof or gutter damage in the near future. Therefore s 10(2)(a) is engaged. Though orders for pruning shall be made to clear the trees from contact with the roof, this will not entail pruning the trees to fence height as proposed by the applicants. The proposed pruning would permanently disfigure the trees and would be entirely disproportionate to the potential damage and inappropriate in the context of the case. The nature of the pruning to be ordered will be clarified within s 12 considerations.

Risk of injury

40. The applicants’ Order 2 proposed the Lilly Pilly trees’ removal, or pruning to fence height, and Order 3 proposed pruning the Pecan, Silky Oak, and Fig trees back to the common boundary. Though a subset of Cypress trees was causing fence damage, the applicants’ Order 1 proposed removal of all 19 Cypresses trees as they were “dangerously tall”, leaning, and encroaching beyond the common boundary.

41. There is no remedy available under the Trees Act, however, for branches or roots growing beyond property boundaries, unless they are causing damage or risk of injury that engages s 10(2). In Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (Robson); at [56], Preston CJ states, “mere encroachment into the neighbour’s land is insufficient to complete a cause of action”. In other words, there is no provision for the Court to make orders for the pruning of branches, simply because the branches extend beyond a common boundary.

42. Consequently, the Court had no jurisdiction to make orders for the Fig tree in the front yard, nor the Silky Oak or Pecan at the rear of the respondents’ land. Though many branches of the Fig tree were encroaching beyond the boundary, and some had been poorly pruned in the past, they were not causing damage or injury, nor was such damage or injury likely in the foreseeable future. Mrs James was concerned about damage to valuable cloud pruned conifers under the Fig, but such damage was unlikely. Further, the conifers were in pots that could be moved away from the Fig, and the conifers would incidentally benefit from additional sunlight.

43. Contrary to the applicants’ site diagram, the Silky Oak was located well back from the common boundary. Many trunk wounds on the applicants’ side of the Silky Oak reflected extensive past branch pruning such that branches that extended beyond the boundary were small and insignificant.

44. Similarly, no evidence of damage by the Pecan, or the two back Cypress trees was submitted, and there were no features of the trees or the site that rendered near future damage or risk of injury likely. The trees may well drop leaves on the applicants’ land but as considered below at s 12(h), the Trees Act provides no remedy for maintenance arising from leaves or similar debris that may blow or fall from neighbouring trees.

45. The applicants failed to provide a detailed description, as requested at Question 9 of Form H, “of the likelihood of injury to people caused by the tree/s” but referred to attached photos. The photos showed Cypress trees near the applicants’ dwelling leaning forward beyond the boundary, dead and live branches in the lower canopies of Cypress trees, and low Lilly Pilly branches growing near the rear gutter and roof of the new garage. Two photos appeared to display different views of a fairly large dead broken Cypress stem; one showed a cross section of the breakage point, while the second showed the top of the stem that appeared to have fallen amongst trunks and branches on the respondents’ land.

46. Alternatively, the photos may have shown two separate broken branches but only one such broken branch was discussed during the site inspection. Regrettably, the photos provided no explanatory captions. Significantly, none of the photos showed a broken branch of any consequence that had fallen onto the applicants’ land.

47. Notwithstanding Mr James’ repeated claims of risk of injury from falling branches, the applicants provided no written, photographic, or oral evidence of an injury or near miss resulting from a branch from the respondents’ trees that may substantiate these claims. Consequently, I considered the applicants’ broken branch photos to be examples of a branch or branches that may possibly cause an injury, rather than a branch that presented a genuine risk of injury.

48. The applicants’ descriptions about damage, at question 4 of Form H, provided some reasons for the applicants’ apprehension of injury as a result of the respondents’ trees. The applicants described the Cypress trees as “very tall”, having “excessive dangerous lean and are at risk of falling on our home”. They also noted “extreme fire risk” and “large limbs fall and could kill someone”.

49. The fact that the Cypress trees were relatively tall does not necessarily make them dangerous nor a risk of injury. Leyland Cypress are generally structurally sound, strong, durable trees that are well anchored and stable in the ground. They are used extensively for screening, windbreaks, and to shelter dwellings in rural areas.

50. In inspecting the trees, I look for indications of soil cracks or uplift around trunk bases that may indicate anchorage or stability problems. No such signs amongst the Cypress trees aroused my suspicion or concern. Further, live branches rarely break from the Cypress trees unless they have genetic based faults or faults resulting from pruning. Again, I saw no such faults and nor were any serious past branch failures reported. While internal branches often die if they are deprived of sunlight, they usually remain attached within the canopy for many years.

51. Conversely, the trees buffer, absorb, and mitigate strong winds during storms and thus protect buildings from wind impact. In the face of powerful winds, exposed buildings are usually more vulnerable to damage than buildings protected by trees.

52. There was no reasonable basis for considering the lean of the trees to be a safety issue, or a risk of injury. The lean towards the northeast probably resulted from competition for northern sunlight and the influence of southerly winds. The Cypress trees appeared to be very healthy and vigorous. When growing on a lean, healthy, vigorous trees develop additional wood and thus strength in both roots and stems to compensate for extra stresses (from gravity and wind). Therefore, the Cypress trees were probably as strong and safe as if they were straight and vertical. There was no reasonable basis for the applicants’ fear that the trees were likely to fall on their dwelling. As I noted above, regardless of the applicants’ claim that “large limbs fall and could kill someone”, the applicants provided no reliable evidence of large limbs falling and presenting genuine risk of injury. Nor did my site inspection reveal likelihood of such branch shedding.

53. In submissions to the Court, stamped on 24 September 2024, and 8 October 2024, Mr James provided a brochure which detailed problems with x Cupressocyparis leylandii ‘Leighton Green’. Primarily problems included the trees potential size, competition for nutrients and sunlight, and negative impact on native ecosystems. While these elements may be considered under s 12 of the Trees Act, they are peripheral to the assessment of specific damage or risk of injury arising from the respondents’ Cypress trees.

54. With respect to the applicants’ claim of risk due to bushfire, Commissioner Fakes addressed and dismissed damage or risk of injury from fire in Freeman v Dillon [2012] NSWLEC 1057; at [86]:

“Despite this concern and the evidence, I am not satisfied that general bushfire risk posed by trees is within the jurisdiction of the Court under the Trees Act. A tree in itself does not start a fire...a person lights a fire, lightning strike, sparks from machinery etc may start a fire. However, if a bushfire damaged the trees and caused part or all of the tree to fail and cause damage to an applicant's property or injury to any person, then this may engage a consideration of s 12(h)(i) and s12 (i)(i), that is "anything, other than the tree, that has contributed, or is contributing, to any such damage/ injury or likelihood of damage/ injury". As discussed by Preston CJ in Robson at [210] this: "would also allow consideration of extraordinary natural events, acts of God, and their contribution to the damage or the likelihood of damage to property or the likelihood of injury to any person". As no injury or damage has occurred as a result of a bushfire affected tree, this element of the application is dismissed.”

55. The onus is on the applicants to prove their case, yet Mr and Mrs James provided scant substantiation of risk of injury from the respondents’ trees. Assessment of risk of injury is not merely based on a branch falling from a tree. Also relevant is the frequency of occupation of a target zone and likelihood of impact, the consequences of impact, and mitigating factors such as protection provided by roofs and other structures. When applying for the removal of a large population of trees, based to a significant extent on risk of injury to persons, it is customary to substantiate such claims with a report from an Australian Qualification Framework (AQF) level 5 arborist which includes a soundly based tree risk assessment.

56. All elements of the applicants’ claim regarding risk of injury to persons as a consequence of the respondents’ trees have been considered and set aside. I am satisfied that the risk of injury is low and is insufficient to engage s 10(2)(b) of the Trees Act. Therefore, this element of the application is dismissed.

57. Nonetheless, as the jurisdictional test in s 10(2) is satisfied by damage to the boundary fence by Cypress trees, and likely roof damage by Lilly Pilly trees, s 9 of the Trees Act empowers the Court to make any order it sees fit to remedy, restrain or prevent damage to property or injury to persons. If orders are to be made, the Court must consider relevant matters at s 12 of the Trees Act.

Section 12

58. Section 12(a) of the Trees Act requires consideration of the location of the tree/s concerned in relation to the boundary of the land on which the tree is situated and any premises. While the Fig, Silky Oak and Pecan trees were located further from the boundary than indicated in the site diagram, fence damage arose from the close proximity of various Cypress trees to the common boundary. Although I accept the respondents’ contention that much of the fence damage was currently relatively minor, the locational constraints of 5 Cypress trees made additional and more serious fence damage almost inevitable. As maintenance of a sufficient boundary fence is a reasonable expectation, orders shall be made for the removal of Cypress trees 8-11 inclusive, and 17, which was causing the most serious fence damage.

59. Section 12(b) considers whether interference with the tree would, in the absence of section 6(3) of the Trees Act, require any consent or other authorisation under the EnvironmentalPlanningandAssessmentAct1979 (EP&A Act) or the HeritageAct1977 and, if so, whether any such consent or authorisation has been obtained.

60. All trees in the application are defined as trees under Chapter (Ch) 3.5 Tree and Vegetation Management, of the Central Coast Development Control Plan 2022 (DCP). They are trees which fit the definition of vegetation to which Part 2.3 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 applies, such that a permit from the Council is required to remove that vegetation. The State Environmental Planning Policy (Biodiversity and Conservation) 2021 is made under the EP&A Act.

61. Sections 2 and 3 of Ch 3.5 of the DCP identify when a Council permit is needed for tree removal or pruning. Relevant “Exempted works” under Ch 3.5.3.2 of the DCP are:

The removal or pruning of trees or vegetation located within 3 metres of an existing approved structure (see definition), located on the subject or adjoining private land. This distance is measured 1.4 metres above ground level between the face of the wall and the part of the trunk nearest the building. Appropriate care is to be taken to avoid harm to any fauna observed to be inhabiting the tree or vegetation.

…

…

…

Pruning of a maximum of 10% of tree foliage area once every growing season and in accordance with the Australian Standard for Pruning of Amenity Trees (AS4373-2007). Applicable to branches no more than 50mm in diameter.

62. Therefore, under Ch 3.5.3.2a of the DCP, the applicants do not require Council permission to prune branches within 3m of their dwelling, provided such pruning is in accordance with the Australian Standard for Pruning of Amenity Trees (AS4373-2007) and considering that any pruning or tree removal undertaken beyond the common boundary would constitute trespass.

63. Similarly, branches more than 3m from an approved building may be pruned in accordance with Ch 3.5.3.2e of the DCP. The scope for pruning up to 10% of the canopy is usually applied prorate to the proportion of the canopy overhanging the common boundary. For example, if 25% of a tree’s canopy encroached beyond the boundary, then a maximum of 2.5 % of the canopy may be pruned on the applicants’ land. It is common for trees to grow across property boundaries and there is no requirement for respondents to pay for such works under the Trees Act, or under the DCP.

64. Section 12(b2) requires consideration of the impact any pruning (including the maintenance of the tree at a certain height, width or shape) would have on the tree. All pruning of live foliage is detrimental to tree health and vigour as live foliage produces sugars which provide energy for all required functions.

65. Branches on the Lilly Pilly trees that had been poorly pruned, most likely by builders during the garage construction, required remedial pruning. Pruning to raise the trees’ canopy by about 1m may be undertaken in accordance with AS4373-2007, whereas the pruning to fence height proposed by the applicants cannot. Minor pruning of Cypress branches required to remedy current fence damage and prevent near future fence damage also complies with AS4373-2007. Such pruning should cause little negative impact on tree health.

66. Any plan to heavily prune Cypress trees behind the applicants’ dwelling and garage under the exemption provided at Ch 3.5.3.2a of the DCP, should be considered with caution. If currently protected internal branches become suddenly newly exposed to winds, they are particularly prone to breakage as they have not been strengthened by regular wind exposure. In other words, ironically, heavy pruning of Cypress trees would likely significantly increase tree risk. Further, foliage regrowth is unlikely from large pruning wounds.

62. The trees contributed to privacy, landscaping, garden design, the scenic value of their land on which they were situated, and protection from sun and winds (subss 12(b3) and 12(e)).

63. Section 12(d) requires consideration of any contribution of the tree/s to the local ecosystem and biodiversity. The respondents noted environmental benefits of the trees such as wind abatement and habitat for fauna. Cypress trees are renowned for providing habitat for possums, and the flowers and fruit of the native Lilly Pilly and Silky Oak trees may be expected to also provide food. Therefore, the trees contributed to the local ecosystem and biodiversity. In Robson, his Honour provided commentary on environmental considerations under s 12 of the Trees Act; at [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””.”

69. Additionally, considering the cumulative impact of the Cypress trees, and the conspicuous flowering of the Silky Oak, the trees contributed to local public amenity (s 12(f) of the Trees Act).

70. At s 12(h), if the applicant alleges that the tree has caused damage to his property, (i) requires consideration of “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”.

71. By locating their garage directly below the respondents’ long-established Cypress and Lilly Pilly trees, Mr and Mrs James contributed to the likelihood of damage to the garage roof by the Lilly Pilly trees.

72. In Black v Johnson (No 2) [2007] NSWLEC 513 (Black), the Court has published a Tree Dispute Principle which says, in summary, that the fact that the tree was there first should not impact on whether or not some order should be made about the tree/s but, subject to a range of matters discussed in the principle, the prior existence of the tree/s may be a relevant matter to be considered when deciding who should meet the cost of carrying out any orders which the Court might make.

73. Locating the garage under the canopies of the respondents’ long-established Lilly Pilly trees resulted in engagement of s 10(2)(a) based on likely near future damage by Lilly Pilly branches. Orders shall be made for Lilly Pilly pruning to prevent such likely near future damage.

74. Had the garage not been located under the Lilly Pilly trees, encroachment by the Lilly Pilly’s would not have resulted in damage or likely damage. In that case, “mere encroachment” would not engage the jurisdiction of the Trees Act, thus the Court would have no power to make orders.

75. As the applicants have the benefit of a large lot residential property of over 4000 m2 of land, many alternative design options were available to avoid likely tree damage. Consequently, in accordance with the Tree Dispute Principle in Black, the cost of pruning the Lilly Pilly trees shall be borne by the applicants.

Leaves in gutters and pollution of water

76. By locating their garage directly below the respondents’ long-established Cypress and Lilly Pilly trees, Mr and Mrs James have also contributed to the likelihood of leaves and other debris landing on the roof and impacting garage gutters and their tank water.

77. As alleged by the respondents, ‘poor design’ contributed to this outcome as there was a lack of consideration of the obvious likelihood of this occurrence. This does not reflect on the applicants’ architectural taste, nor that of the previous property owners who procured the planning permission that the applicants utilised. Rather, ‘poor design’ under s 12(h)(i) of the Trees Act reflects a lack of foresight that contributed to alleged damage.

78. His Honour provides context to this scenario, in Robson; at [171]:

“However, 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.”

79. Many applications under Pt 2 of the Trees Act conflate leaves and other debris that blow or fall from neighbours’ trees as damage. In addressing this issue, a Tree Dispute Principle was established in Barker v Kyriakides [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”.

80. The applicants’ situation is similar to that considered in Gardiner v Bisley [2021] NSWLEC 1176 (Gardiner), where the Court found, at [71]:

“Additionally, regardless of whether tree debris drops into the applicant’s pool, resulting in more cleaning and addition of chemical or other ameliorants to stabilise water requirements than may be the case in their absence, upon purchasing the property about five years ago, it should have been obvious to the applicant that the tree was large and well established, that its canopy extended over the pool, and that such additional maintenance would be required. In such a scenario, it is unreasonable to expect that the tree be removed or severely pruned, to eliminate or reduce this debris, when the tree long predated the pool’s installation.”

81. I am satisfied the applicants provided no evidence which substantiates health problems arising as a result of leaves or other tree debris in their tank water. In the context of this site, where the applicants’ additional maintenance burden arose from their choice to locate their garage and source of tank water under long established trees, none of the applicants’ submissions with respect to leaves falling onto their roof and into gutters or the impact on their recycled water, invokes the jurisdiction of the Trees Act.

82. Rather, these elements are all resolved and dismissed under the expectation of reasonable maintenance arising from the Tree Dispute Principle in Barker, and “additional maintenance” under the rationale in Gardiner; at [71], due to the obvious foreseeability of such outcomes.

Conclusions

83. Section 10(2) of the Trees Act was engaged by damage to the common boundary fence by the applicants’ Cypress trees and the likelihood of Lilly Pilly branches causing damage to the applicants’ garage roof in the near future.

84. Consequently, orders shall be made for the removal of 5 Cypress trees, and the pruning of 8 Cypress trees and 7 Lilly Pilly trees. All Cypress tree branches currently impacting the fence shall be pruned along with all branches likely to impact the fence in the near future. Minor damage to the fence shall be remedied.

85. Regardless that near future roof and gutter damage would probably be relatively minor, nonetheless, pruning to raise the Lilly Pilly canopies above the roof by up to 1m is a proportionate response.

86. Other than the fence damage, most of the applicants’ claims related to risk of injury. However, the applicants’ submissions were based on unfounded personal opinions and apprehensions that the trees were unsafe, rather than evidence to substantiate their claims, such as a risk assessment from an expert arborist. I was not persuaded by the applicants’ oral or written evidence, or their photographs, that any of the trees presented an unacceptable risk of injury.

87. Although Mr and Mrs James proposed removal of up to 26 of the 29 trees subject of the application, the trees provided significant individual and collective environmental contributions, which the Court is bound to consider in contemplating orders. Consequently, it is contingent on the Court to restrict tree removal to trees causing damage or foreseeable injury, and those likely to cause near future damage, that cannot be mitigated by pruning. Removal of trees outside these parameters is an unnecessary and disproportionate remedy.

88. Therefore, though more Cypress trees may require removal in future as a result of their proximity to the boundary, it is reasonable to defer removal, and monitor such trees in the interim. Depending on climatic conditions, this may be 5 - 10 years hence, during which time residual trees may continue to provide environmental benefits and replanting may be undertaken, clear of the boundary.

89. Maintenance by the applicants to clear leaves, flowers and other minor tree debris, and stains, from the applicants’ roofs, gutters, or recycled water system is considered reasonable under the terms of the Tree Dispute Principle established in Barker, and the rationale in Gardiner; at [71].

90. In accordance with the Tree Dispute Principle published in Black, the applicants shall pay the cost of the Lilly Pilly pruning. The respondents shall pay the cost of the Cypress trees removals and pruning, and fence repairs.

Orders

91. The Court orders that:

1. The respondents shall engage and pay Australian Qualification Framework (AQF) level 3 arborists with all appropriate insurances (the arborists), to remove Cypress trees 8-11 inclusive, and 17, per the applicants’ site diagram, to near ground level, within 60 days of the date of these orders.

2. The respondents shall engage and pay the arborists to prune Cypress trees 1, 6, 7, 13, 14, 19, 21, and 22, per the applicants’ site diagram, to remove all branches impacting the boundary fence or within 150mm of the top of the boundary fence, and all branches likely to grow to damage the boundary fence in the near future, within 60 days of the date of these orders.

3. The respondents shall engage and pay a fencing contractor with all appropriate insurances, to repair the section of boundary fence levered over by the Cypress trees, so it is rigid and vertical, with all palings intact, within 14 days of the completion of all Cypress tree removals and pruning.

4. The respondents shall engage and pay the arborists to prune lower branches from 7 Lilly Pilly trees located adjacent to the applicants’ garage to provide clearance of not less than 800mm and not more than 1m between the lowest Lilly Pilly branches and the garage roof, within 60 days of the date of these orders.

5. The applicants and the respondents shall each procure one itemised quotation for the works specified in Order (4), including removal/ chipping of branch debris and tidying the site from AQF level 3 arborists with all appropriate insurances, and exchange said quotations by email, within 30 days of the date of these orders. Within 7 days of the completion of the works in Order (4), the respondents shall email the applicants a copy of the paid invoice for the works in Order (4). Within 7 days of receipt of the copy of the paid invoice for the works in Order (4), the applicants shall pay the respondents the total of the lower of the two said quotations by Electronic funds transfer.

6. All pruning works shall be undertaken in accordance with AS4373-2007, Pruning of amenity trees.

7. All tree works shall be undertaken in accordance with Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016.

8. The applicants shall provide all reasonable access to the respondents’ arborists to their property for undertaking the works, upon receipt of at least 72 hours’ emailed notice from the respondents.

9. The works shall be completed during reasonable working hours.

J Douglas

Acting Commissioner of the Court

**********

Decision last updated: 26 March 2025