Norman v Cave

[2025] NSWLEC 1150

Land and Environment Court

New South Wales

Medium Neutral Citation:

Norman v Cave [2025] NSWLEC 1150

Hearing dates:

27 November 2024

Date of orders:

13 March 2025

Decision date:

13 March 2025

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

The Court orders that:

(1) The respondent shall pay the applicants $1,600.00 (comprising $600.00 for 2024 insurance excess and $1,000.00 for stump grinding and paving uplift repair) by Electronic Funds Transfer, within 30 days of the date of these orders.

(2) The respondent shall engage and pay Australian Quality Framework (AQF) level 3 arborists with all appropriate insurances (the arborists), to remove the tree to around ground level and poison the stump, within 60 days of the date of these orders.

(3) The respondent shall engage and pay a fencing contractor with all appropriate insurances, to install a section of fence on the common boundary, into the gap currently occupied by the tree. The materials and dimensions of the fence section shall match the materials and dimensions of the existing common boundary fence. The fence section shall be installed within 14 days of completion of the tree removal.

(4) The applicants and the respondent shall each plant a medium sized replacement tree in their backyard, clear of boundaries by at least 1m, and maintain said trees at least until they attain sufficient proportions to be deemed a prescribed tree under Council’s Development Control Plan.

(5) The tree removal works shall be completed in accordance with the Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016.

(6) The applicants shall provide all reasonable access for the arborists and fencing contractor to undertake their works and to remove debris from the applicants’ property upon receipt of at least 72 hours emailed notice of the date and approximate start time of the respective works.

(7) All works shall be undertaken during reasonable daytime working hours.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – tree structurally deteriorating – damage caused by branch failure – apprehension of further damage and risk of injury to persons – tree removal ordered

Legislation Cited:

Environmental Planning and Assessment Act 1979

Limitation Act 1969

Trees (Disputes between Neighbours) Act 2006, Pt 2, ss 6, 7, 8, 9, 10, 12

Cases Cited:

McPherson v Lake [2017] NSWLEC 1081

Reuben v Lace [2010] NSWLEC 1024

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

Texts Cited:

Standards Australia, AS 4373, Pruning of amenity trees, 2007

Inner West Development Control Plan, 2023

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

Category:

Principal judgment

Parties:

Carole Muriel Norman (First Applicant)
George Norman (Second Applicant)
Janice Cave (Respondent)

Representation:

Counsel:
C Norman (Self-represented) (First Applicant)
G Norman (Self-represented) (Second Applicant)
J Cave (Self-represented) (Respondent)

File Number(s):

2024/345705

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: Pursuant to s 7 of Pt 2 of the Trees (Disputes between Neighbours) Act 2006 (the Trees Act), Carole and George Norman, the applicants, proposed the Court order removal of a Liquidambar tree (Liquidambar styraciflua) (the tree) from the rear yard of the neighbouring Annandale property of Janice Cave, the respondent. Additionally, the applicants sought compensation for the cost of reports, for past insurance excess payments, and for repair of paving damage, amongst other proposed orders.

Background

2. Both parties were long term owner occupants of their properties, the Norman’s since 1979, and Ms Cave since 1982. They shared a side boundary which extended from near north at the front to near south at the rear and the applicants’ property was located west of the respondent’s property. The parties’ dwellings had relatively shallow frontages and both land parcels were long, narrow, and approximately rectangular. Both properties had rear lane access to a side street.

3. The first reported problem arose in or around 2008, when a neighbour’s sewer pipe was allegedly blocked by the tree’s roots. Conflict between the parties commenced around this time as a result of the tree’s autumn leaf drop and the associated maintenance burden. The parties engaged in mediation through a Community Justice Centre (CJC) in 2011. The applicants also claimed that shading by the tree’s dense canopy prevented access to sufficient sunlight.

4. The dispute escalated after a large branch which shed from the tree on 6 December 2022, demolished a glass table, and damaged three chairs and various shrubs in the applicants’ back garden. Mr and Mrs Norman commissioned arborist Ross Jackson, of Jackson’s Nature works, to inspect the tree and provide a report. The tree was inspected ten days after the branch failure. The ensuing report (Jackson report) was dated 18 November 2023.

5. On 14 February 2024, an even larger branch broke from the tree and landed across the back yards of three consecutive neighbouring properties (the 2024 branch failure). The branch demolished the common boundary fence shared by the applicants and their western side neighbour, and allegedly damaged or destroyed trees in the subsequent neighbouring property further west.

6. Ms Cave valued the tree highly and noted myriad environment, historical, and personal benefits it provided. Consequently, Ms Cave strongly advocated for the tree’s retention. After the 2024 branch failure, Ms Cave proposed mediation with the applicants via the CJC. The Norman’s elected not to mediate, however, and subsequently made their application under the Trees Act to the Land and Environment Court.

Framework of the application

7. Applications under of Pt 2 of the Act are assessed under the following jurisdictional framework:

7   Application to Court by affected land owner

An owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land.

8 Notice of application for order to be given to owners of affected land

(1) An applicant for an order under this Part must give 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.

…

9   Jurisdiction to make orders

(1)  The Court may make such orders as it thinks fit to remedy, restrain or prevent damage to property, or to prevent injury to any person, as a consequence of the tree the subject of the application concerned.

(2)  Without limiting the powers of the Court to make orders under subsection (1), an order made under that subsection may:

(a)  require the taking of specified action to remedy damage to property, or

(b)  require the taking of specified action to restrain or prevent damage or, if damage has already occurred, further damage, to property, or

(c)  require the taking of specified action to prevent injury to any person, or

(d)  require the making of an application to obtain any consent or other authorisation referred to in section 6 (1) (a), or

(e)  authorise the applicant concerned to take specified action to remedy, restrain or prevent damage or (if damage has already occurred) further damage to property, or

(f)  authorise the applicant concerned to take specified action to prevent injury to any person, or

(g)  authorise land to be entered for the purposes of carrying out an order under this section (including for the purposes of obtaining quotations for the carrying out of work on the land), or

(h)  require the payment of costs associated with carrying out an order under this section, or

(i)  require the payment of compensation for damage to property, or

(j)  require the replacement of a tree that the Court orders to be removed and for the new tree to be maintained to a mature growth.

10   Matters of which Court must be satisfied before making an order

(1)  The Court must not make an order under this Part unless it is satisfied:

(a)  that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, and

(b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 8.

(2)  The Court must not make an order under this Part unless it is satisfied that the tree concerned:

(a)  has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or

(b)  is likely to cause injury to any person.

…

12   Matters to be considered by Court

Before determining an application made under this Part, the Court is to consider the following matters:

(a) the location of the tree concerned in relation to the boundary of the land on which the tree is situated and any premises,

(b) whether interference with the tree would, in the absence of section 6 (3), require any consent or other authorisation under the Environmental Planning and Assessment Act 1979 or the Heritage Act 1977 and, if so, whether any such consent or authorisation has been obtained,

(b1) whether interference with the trees would, in the absence of section 25 (t) (Legislative exclusions) of the Native Vegetation Act 2003, require approval under that Act,

(b2) the impact any pruning (including the maintenance of the tree at a certain height, width or shape) would have on the tree,

(b3) any contribution of the tree to privacy, landscaping, garden design, heritage values or protection from the sun, wind, noise, smells or smoke or the amenity of the land on which it is situated,

(c) whether the tree has any historical, cultural, social or scientific value,

(d) any contribution of the tree to the local ecosystem and biodiversity,

(e) any contribution of the tree to the natural landscape and scenic value of the land on which it is situated or the locality concerned,

(f)  the intrinsic value of the tree to public amenity,

(g) any impact of the tree on soil stability, the water table or other natural features of the land or locality concerned,

(h) if the applicant alleges that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property:

(i)  anything, other than the tree, that has contributed, or is contributing, to any such damage or likelihood of damage, including any act or omission by the applicant and the impact of any trees owned by the applicant, and

(ii)  any steps taken by the applicant or the owner of the land on which the tree is situated to prevent or rectify any such damage,

(i) if the applicant alleges that the tree concerned is likely to cause injury to any person:

(i)  anything, other than the tree, that has contributed, or is contributing, to any such likelihood, including any act or omission by the applicant and the impact of any trees owned by the applicant, and

(ii)  any steps taken by the applicant or the owner of the land on which the tree is situated to prevent any such injury,

(j) such other matters as the Court considers relevant in the circumstances of the case.

The onsite hearing

8. Both parties were self-represented at the onsite hearing and the applicants were accompanied by an arborist, Malcolm Bruce. Tree Management Officers from Inner West Council (Council) attended as observers, as did various neighbours, one of whom had property damaged by the 2024 branch failure.

9. The tree’s trunk was primarily located on Ms Cave’s land close to the rear boundary, but roots and a small portion of the trunk encroached beyond the parties’ common boundary onto the applicants’ land. It was a large tree with a stout trunk and broad canopy, parts of which extended over the rear of the applicants’ land and about four additional neighbouring properties.

10. Ms Cave procured a report from Canopy Consulting (Canopy report) pursuant to an inspection by arborist Mark McHugh on 8 March 2024. The tree’s height and canopy spread were both estimated as 18 metres (m) and the diameter of the trunk at breast height (DBH) was measured as 97 centimetres (cm). In the report of 21 July 2024, for the applicants (Bruce report), the DBH was measured as 92cm and the tree’s height as 21m. The tree’s north-south canopy spread was about 19m, and the east-west canopy spread exceeded 25m.

11. Ms Cave had been advised that the tree was planted in the 1930’s, but in a response to applicants’ claims, dated 1 November 2024 (Exhibit 2), Ms Cave said the tree was “understood to be approximately 60-65 years old”. Mr Bruce referenced aerial images that allegedly showed the tree was not present in 1965 and was probably planted after 1971. Regardless of its precise age, the tree was long-established and had been repeatedly and extensively pruned over more than 42 years.

The applicants’ case

12. Mr and Mrs Norman claimed both branch failures caused significant property damage and a serious risk of personal injury and that the branch failure of February 2024 occurred when winds were relatively light or absent. Mrs Norman said the December 2022 failure was particularly disconcerting as the applicants had been entertaining at the subsequently demolished table nine days prior to the branch shedding.

13. The Norman’s contended their clothesline was damaged by a relatively large dead branch around 2015 and that two mid- size live branches fell into the tree’s lower canopy above Ms Cave’s rear yard in late 2020. The applicants also contended that smaller branches had fallen irregularly during the previous 10-15 years.

14. The applicants noted having branches pruned above their property four times over 30 years to increase sunlight and safety. Although the applicants desired additional pruning to achieve similar outcomes, they considered Ms Cave’s preference for tree retention and ongoing pruning as required, merely a ‘band aid solution’ that failed to address the tree’s propensity for branch failure.

15. The applicants procured the Jackson report, after an inspection on 16 December 2022, and the Bruce report, based on an inspection on 12 July 2024. Summarised observations and recommendations of the Jackson report were:

“The (2022) failed branch was about 8m long, about 200mm in diameter, weighed more than 200kg and fell from a height of about 10m. The wound end of the failed branch exhibited decayed wood and radial/ longitudinal splitting extending towards the external end (Plates 4-6 exhibited the decayed wood and Plate 7, the longitudinal splitting). “

16. The tree had previously been reduced in height by lopping/ topping (Plate 8 showed locations of lopping and Plate 9, a decayed branch junction). The lopping caused damage and exposure to pests and diseases, along with reduced strength, condition and vigour. The lopping promoted epicormic regrowth and premature decline. Branches had been pruned from the lower trunk. Long lateral branches were placing increased stress on epicormic junctions. Branch failures which “open the tree’s canopy” reduce the tree’s capacity to dampen/ dissipate wind energy through the trunk and soil. Consequently, the tree had high potential for future damage to property and persons, which was exacerbated by the tree’s proximity to three dwellings, and the size and height of fall of defective parts.

17. Summarised observations and recommendations of the Bruce report were:

"Topped branch architecture, overextended branches, and history of large branch failures. Safe Useful Life Expectancy (SULE) was category 4C, which was defined as, “[d]angerous trees because of structural defects including cavities, decay, included bark, wounds or poor form”. The tree’s Retention value was ranked as Low. The tree has been extensively topped (lopped). In Burges C, Topping Trees (HGIC 1024, Clemson University Cooperative Extension Service, 2005), topping was described as, “[c]uts made along a limb between lateral branches create stubs with wounds that may not be able to close. Normally a tree will “wall off” or compartmentalise the decaying tissues, but few trees can handle the multiple severe wounds caused by topping. The exposed wood tissues begin to decay, and the decay can spread into the trunk."

18. Mr Bruce agreed with Mr Jackson’s conclusion that the tree “will continue to have limb failures”. Mr Bruce said that Liquidambars have a reputation for summer limb drop (SLD) and the branch failures were typical of SLD, amplified by the branch length and size. Risk assessment undertaken with Tree Risk Assessment Qualification (TRAQ) method, resulted in High risk of significant damage to at least four structures. Risk of injury was recorded as ‘possible’. Mr Bruce concurred with Mr Jackson that further crown reduction pruning to mitigate risk would only be a temporary solution, and recommended removal.

19. At the hearing, Mr Bruce contended the tree’s location was inappropriate and referenced Californian requirements that Liquidambars should be at least 30 feet (about 9m) from dwellings. He said heavy overextended branches, altered wind exposure due to past branch breakage and heavy pruning, all increased the likelihood of branch failure, especially during high winds. Mr Bruce reiterated that failures followed the pattern of SLD, and that Liquidambars were prone to decay, perhaps due to genetics. Based on findings of the TRAQ risk assessment, Mr Bruce said risk of significant damage to dwellings and structures was high but there was not necessarily a high risk of personal injury.

20. Applicants’ proposed orders:

“(1) Owner to remove Liquidambar and replace with an appropriate tree, at her cost.

(2) Owner to pay: our insurance excess of $600.00 for branch failure on 6/12/2022.

(3) Owner to pay: our insurance excess of $600.00 for limb failure on 14/02/2024.

(4) Owner to pay $2970.00 for necessary Arborist Report, by Ross Jackson, dated 23/11/2023.

(5) Owner to pay $462.00 for necessary Arborist Report, by Malcom Bruce, dated 21^st July 2024.

(6) Owner to pay $11,810.00 to Yarradee Landscaping for repairing paving damaged by the Liquidambar roots over the years

(7) Owner to pay our insurance excess for any and all future insurance claims brought about by the future limb/branch or tree failure by the Liquidambar, if order 1 is not made and acted on before another limb/branch failure occurs.

(8) Should our insurance be revoked, because of the number of Impact insurance claims we have been caused to lodge, as a result of this Liquidambar, the owner of the tree, Janice Cave (or her beneficiary) is to pay us (or our beneficiaries) for all injuries caused to us and/or visitors to our home and to compensate us and/or visitors to our home for any injury occasioning death to any person. Janice Cave (or her beneficiary) to pay for all damage caused to our home, or property in general, by future Liquidambar failures. This includes housing us in a similar quality of accommodation in the same suburb, until the damages are completed in a professional and workmanlike manner. Or the home rebuilt, at her cost, should failure of the Liquidambar make the property unsafe for occupation, if order 1 is not made and acted on before another limb/branch failure occurs.

(9) Janice Cave to share the maintenance of the communal box gutter.

(10) Janice Cave to pay 50% of the quote we are waiting on to fix the box gutter.

(11) Should our home or yard or fixtures and fittings or contents be damaged during the felling of the Liquidambar, Janice Cave to pay for all repairs, reconstruction or replacement of fixtures and fittings and contents.”

The respondent’s position

21. Ms Cave contended the tree was highly visible from nearby streets, culturally, personally, and socially significant, and an identified heritage item within the Annandale Heritage Conservation Area. The respondent noted the shading and resultant temperature modification the tree provided to adjacent properties, along with stabilisation of soil, improvement of water infiltration, and the tree’s contribution to biodiversity as habitat for birds, bees, and possums.

21. Ms Cave claimed the tree was healthy, and “there is no evidence of decay”. She contended that branches were unlikely to fall on the applicants’ “kitchen and bathroom areas”, nor adjacent structures in neighbouring properties, “as a branch would hit the ground at its heaviest point and would generally land in the same place as in the past, the rear 20% of your garden”. Ms Cave noted that all trees drop branches and that no one can guarantee a tree’s safety, but unpredictability may be addressed through property insurance. Regarding insurance excess payments, Ms Cave noted that one may choose a small excess but must expect a relatively higher premium as a trade-off.

22. Ms Cave contended that excessive and poor-quality pruning commissioned by the applicants significantly contributed to the branch failures, especially the pruning in 2017 which allegedly constituted about 25% of the canopy. To substantiate this claim, the respondent noted a comment about the branch failures, at p 4 of the Canopy report, that “Both are located in the western crown”, allegedly the same location as the applicants’ heavy pruning. Ms Cave also opined that root disturbance by the applicants’ tree workers and the applicants’ Murraya shrubs contributed to root damage.

23. Conversely, Ms Cave said she took the tree’s maintenance and her duty of care seriously and throughout her occupation, had the tree maintained with regular pruning by arborists who did high quality work.

24. After Ms Cave’s occupation, the tree was initially pruned every one to three years, then at approximate five-year intervals, and most recently in 2021 and 2024. In response to an opinion from the Bruce report, that the branch failures, “may have been the result of decay becoming established in the tree from regular but poorly conducted crown reductions”, Ms Cave reiterated, “[t]here is no evidence of decay, nor poor standard of arborist used.” In her response (Exhibit 1), Ms Cave included a “List of deaths from accidental tree failures in Australia”, downloaded from Wikipedia.

25. The Canopy report was based on an inspection in response to the branch failure of February 2024. Summarised observations and recommendations were:

“The tree is the dominant canopy in the immediate vicinity and is exposed in all directions.” Health was ‘Good’ but Structure was ‘Poor’. Cavity, Co-dominant stems, moderate deadwood in a range of 3-10cm, and over extended branches. Useful life expectancy classed as Short, 1-15 years. Previous (branch) failures, the diameter of which were approximately 200 and 400mm respectively, significantly modified the western side of the tree’s crown.”

27. Branches thicken and strengthen where and as required in response to movement induced by winds (and gravity). Internal branches are protected from stronger winds by the tree’s outer canopy. Therefore, Internal branches are generally thinner and weaker than branches extending to the outer canopy. When major crown alterations (such as loss of major branches) expose internal branches to stronger forces due to higher velocity winds and changed wind patterns, newly exposed branches are unable to rapidly adapt and are, therefore, especially prone to breakage. Further, the Canopy report suggested:

“Mitigation options: If this tree is to be retained, considering its current structure, reactive pruning is recommended to reduce end weight of branches surrounding exposed areas of the crown; however, due to the unpredictable nature of the dynamic loads throughout the crown, it is not guaranteed that this pruning will prevent future branch failure.”

…

“Trees have complex physiology and effective interconnected defence systems, making minimal intervention the best approach for mature trees.” “Pruning should be conducted in a manner that will maintain the tree’s natural form and habit, with care taken to avoid the excessive removal of foliage and internal branching.”

28. The report concluded with images showing branches surrounding canopy gaps, for which length and weight reduction of 20% was recommended.

Findings

29. Evidence in the Court file, provided by the applicants, satisfied both s 8(1)(a) and s 8(1)(b). As no other parties were considered relevant to the dispute (at s 8(c)), s 8 of the Trees Act was engaged.

30. With respect to s 10(1)(a), both party’s submissions contained evidence of multiple discussions and copies of extensive correspondence, spanning about 15 years. Following the initial major branch failure in December 2022, the applicants focussed on the risk of injury presented by the tree and repeatedly and unambiguously advocated for tree removal.

31. The respondent was similarly staunch in her resistance. Ms Cave was critical of the conduct of the applicants in their quest for the tree’s removal and claimed the applicants hated the tree as a consequence of its leaf debris and obstruction of sunlight.

32. In Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (Robson), Preston CJ provided commentary on the requirements under s 10(1)(a) of the Trees Act; at [191] – [192]:

“191 The requirement in s 10(1)(a) of the Trees (Disputes Between Neighbours) Act 2006 that the applicant make a reasonable effort to reach agreement with the tree landowner is consistent with the recommendations of the New South Wales Law Reform Commission that neighbours should endeavour to settle a dispute about trees between themselves before taking court action. The Law Reform Commission had noted in its Report 88, Neighbour and Neighbour Relations that: “[t]he remedies proposed in this Report should be regarded as remedies of last resort. Talking to the neighbouring landowner and trying to find a mutually acceptable solution should be the first step when a dispute arises.”: par 1.13, p 7.

192 The Trees (Disputes Between Neighbours) Act 2006 does not prescribe any particular means by which an applicant must make a reasonable effort to reach agreement with the tree landowner. The New South Wales Law Reform Commission had recommended in its report a process whereby the affected landowner would write a letter before taking any court action to the tree landowner telling them what problems the tree is causing and asking them to abate the problem and, if the affected landowner has suffered damage, asking the tree landowner to pay the amount needed to compensate for the damage caused: see para 2.45, p 33. Through this mechanism, the affected landowner could negotiate. If the tree landowner did not respond to the notice within the specified time, the affected landowner could then apply to the Local Court for an order”: par 2.46, p 33.”

33. As the Trees Act “does not prescribe any particular means by which an applicant must make a reasonable effort to reach agreement with the tree landowner (Robson; at [192])”, I am satisfied that s 10(1)(a) is engaged. Section 10(1)(b) is also engaged by the prior satisfaction of s 8 of the Trees Act.

34. The principal jurisdictional tests are at s 10(2) of the Trees Act.

10 Matters of which Court must be satisfied before making an order

(1) ….

(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

Damage caused by the tree

35. The application included images of the large Liquidambar branches that had fallen into the Norman’s rear yard in 2022, and across multiple neighbouring properties in 2024. From 2022, the applicants’ outdoor table was shown, demolished under the weight of the branch. An image from the 2024 failure showed the crushed timber paling boundary fence between the Norman’s rear yard and their west side neighbours’ property. A neighbour from the property west of the Norman’s west side neighbour, provided uncontested submissions about damage to his property that resulted from the 2024 branch failure. Consequently, s 10(2)(a) of the Trees Act is engaged.

Risk of personal injury

36. The applicants claimed that the tree presented a risk of serious personal injury, not only to them but to a grandchild, to guests entertained in their backyard, and to neighbours. Mr and Mrs Norman contended that the branches were sufficiently long to fall on rooms at the rear of their dwelling and opined that the structural strength of their dwelling was insufficient to offer tangible protection from heavy failed branches.

37. Ms Cave contended that there was no proof that the tree was dangerous and referred to the historical analysis included in her response, which indicated accidental death of people in Australia resulting from trees was very rare, generally in the range of 2-6 per annum.

38. In Robson, at [175], his Honour explained that an applicant’s concern about likely injury can be, but does not necessarily have to be, injury to a person who would be on the applicant's land. Orders have been made for the removal or pruning of trees on the basis they may cause injury to persons on the respondent’s land (as in Reuben v Lace [2010] NSWLEC 1024), or on other private or public land nearby.

39. In considering risk of injury, the Court is often guided by commentary in McPherson v Lake [2017] NSWLEC 1081 (McPherson); at [10], where the risk posed by a tree in the foreseeable future was 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.

40. The characteristics of the tree were addressed in all three arborist reports. The most significant finding related to the lopping/ topping of the tree many years ago. The approximate locations of the lopping were indicated in Plate 8 of the Jackson report. As noted in my summaries from both the Jackson and Bruce reports, lopping off the ends of branches to reduce a tree’s size exposes the end grain of residual branches to infestation by pests and diseases, the most relevant and insidious of which is generally wood decay fungi. Tiny spores of many varieties of such fungi are ever-present in the air. Upon opportunistically colonising lopping wounds, spores germinate, and mycelium (akin to roots) begin to penetrate into the wood.

41. Trees have a natural defence mechanism, where they endeavour to minimise the extent of fungal infestation by encapsulating the spreading mycelium within physical and chemical barriers (walls). The relative success of this process is primarily a function of the location, type, size, and number of pruning wounds, tree vigour, genetic characteristics of species and their predisposition to fungal spread, and the stage of a tree within its life cycle.

42. Lopping involves cutting across the grain, generally perpendicular to the branch. Wounds from lopping are especially vulnerable to infestation by wood decay fungi as trees have minimal propensity to establish and maintain protective walls at such locations. i.e. poor natural defence. Conversely, branch junctions/ collars, to which dead branches naturally die back and or shed, have specialised protective zones where fungal penetration is generally minimised. This distinction is the basis of ‘Natural Target Pruning’ and is a primary foundation of the Australian Pruning Standard (AS4373:2007), both of which were discussed in the Canopy report. As a relevant aside, the Australian Pruning Standard specifically discourages lopping and lists various reasons for such discouragement.

43. As noted in the Jackson and Bruce reports, lopping results in reduced vigour. The defensive process of activating barriers simultaneously in multiple lopping locations to limit fungal spread uses considerable energy, which is derived from photosynthesis within leaves. As lopping also removes the leaves, the tree becomes reliant on carbohydrates stored in roots and stems. Most trees subsequently develop epicormic regrowth of multiple crowded stems in close proximity to the lopping wounds. Resultant branches are generally long and narrow due to competition for sunlight, and, at least initially, are more poorly attached than ’normal’ branches. Thus, the lopping altered the form and strength of the Liquidambar tree and resulted in the over-extended branches.

44. Genetically, Liquidambar styraciflua trees are very resilient, with a capacity for repeated strong regrowth. Nonetheless, the loss of all or most of their leaves, i.e. their ‘energy source’, as a result of lopping, renders them particularly vulnerable to wood decay fungi successfully establishing in the lopping wounds. Though, over time, the epicormic growth generally redevelops into a new canopy, and wounds may seal over, the fungus often remains active, or dormant and confined within ‘compartments’ in the wounded branches, but alive, nonetheless.

45. At the bottom of the applicants’ image 5790 from 28 May 2022, the original relatively small branch from when the tree was lopped decades ago, was encapsulated within the large branch cross section, near the upper middle, a time capsule initially successfully compartmentalised by the branch’s strongest wall. At this location, probably some distance back along the branch from the lopping wound, the area on the bottom right of the original small branch was partially decayed, but the top left section remained largely intact. However, the failure wound (further towards the tip of the branch), shown at the back of image 5790, displayed distinct evidence of wood that had been consumed, degraded, and weakened by fungus. Such fungus weakened wood is also clearly obvious in Plates 4-7 of the Jackson report. Figure 8 in the Bruce report showed the failure wound from 2024, with an unsurprisingly similar appearance and pattern of breakage.

46. At the hearing, I inspected the remnants of the wound from the major branch breakage of 2024. The wood tissue exhibited the same characteristics clearly identifiable in the aforementioned images in the application, and in the Johnson and Bruce reports. i.e. wood degraded and weakened by wood decay fungi. Ms Cave inferred that the apparent wood deterioration would have been caused or exacerbated during the time between the failure in February and the hearing in November 2024. I was not satisfied much alteration was likely, however.

47. The tree had a history of two major branch failures since December 2022 and failure of two mid-sized branches in 2020 along with claims by the applicants of ongoing small branch failures over many years. These claims were affirmed, in terms of specific instances, within Ms Cave’s correspondence with tree contractors between 2015 and 2020, and by the respondent’s acknowledgment of a small branch having impacted Mrs Norman’s daughter.

48. Setting the applicants’ dwelling aside for now, target zones where people may be impacted by falling tree branches comprised the applicants’ and respondent’s back gardens, parts of back yards of subsequent properties further east and west, the lane, and the back neighbours’ yard, south of the tree. Due to the vast spread of the tree and relatively small land parcels, ‘the site’ under consideration for risk of personal injury had a much higher population density and thus probable human occupation rate than ordinarily encountered in urban settings.

49. In considering the three primary elements from McPherson, not only the number of branch failures but the considerable branch weight and size is relevant, especially the branch from 2024 that landed across at least three properties. Distinctive advanced fungal decay was evident within the failure wound of both the 2022 and 2024 branches. Given visual evidence of the entire tree having been lopped long ago, it is reasonable to infer that other branches will similarly fail unpredictably. Thirdly, the target zone under the tree spanned five properties plus the lane, such that the occupation rate was likely to be more than occasional, which is higher than usual for backyards. The applicants’ contention regarding the difficulty of escape from falling branches within the confines of individual backyards is also valid. Should a branch fail, the small yards and high fences increased the risk of personal injury.

50. Ms Cave is correct that surprisingly few people are killed by trees. Indeed, in both Australia and the United Kingdom, the probability of such a fate is not dissimilar to the probability of death by shark attack or as a result of bee stings. It is very rare. However, a single tree’s risk must be assessed individually, based on its characteristics, in site context. Thus, it is not reasonable to make specific inferences about the risk presented by an individual tree from these figures.

51. The TRAQ risk assessment method applied by Mr Bruce is one of just a few arboricultural risk assessment techniques that are accepted and applied internationally. I am trained and experienced in TRAQ, and I find its methodology logical. When applied appropriately, it produces sound results. Based on my reasoning above, I concur with Mr Bruce’s finding that risk of property damage is High. Although Mr Bruce determined risk of injury to persons to be Low, I find risk of injury to persons is Moderate. Consequently, s 10(2)(b) of the Trees Act is also engaged.

52. If at least one jurisdictional test at s 10 of the Trees Act is satisfied, the Court can make orders such as those at s 9 to remedy, restrain or prevent damage to property, or to prevent injury to a person, as a consequence of the tree. Before determining the nature of any orders, the Court must consider a range of matters set out at s 12 of the Trees Act.

Discretionary matters – Section 12

53. The tree’s trunk was primarily situated on the respondent’s land with minor encroachment beyond the common boundary (s 12(a)).

54. Liquidambar styraciflua is a prescribed tree under the Inner West Development Control Plan 2023 (DCP). Therefore, removal or pruning in excess of 10% of the tree’s canopy required Council permission. Further protection arises from the requirement for a Development Application rather than a Tree Permit, due to the tree’s location within a Heritage Conservation Zone. Therefore, the tree is subject to the Environmental Planning and Assessment Act 1979 (EP&A Act), as the DCP is made under the jurisdiction of the EP&A Act. Nonetheless, under s 6(3) of the Trees Act, an order under Pt 2 or 2A has effect despite any requirement that would otherwise apply for consent under the EP&A Act(s 12(b)).

55. Section 12 (b2) of the Tree Act considers the impact any pruning would have on the tree. Both parties’ submissions indicated that the tree had been repeatedly pruned since 1982 or prior. It is unclear who commissioned the tree’s lopping, but this is immaterial.

56. By the late 1980’s and 1990’s, tree ‘lopping’ became less common as its negative effects became more broadly understood. Science-based training for ‘arborists’ became more widely available, accepted, and specified as a requirement of ‘Council permission’ for tree pruning or removal. Inclusion of the disadvantages of lopping in the initial release of the Australian Pruning Standard in 1995, consolidated the demise of lopping as an accepted practice.

57. Over recent decades, with greater focus on trees’ natural processes, there was increased awareness that any unnecessary removal of leaves was negative for trees and pruning should only be undertaken to achieve an essential purpose. Arborists were thus increasingly wedged between the desire and need for business continuity, and best practice pruning. Regrettably, this may have resulted in quality arborists maintaining established advice and maintenance practices, notwithstanding the harm to trees through the creation of pruning wounds prone to fungal infestation. Additionally, carbohydrates/ energy used for replenishment of pruned leaves reduced stored carbohydrate reserves otherwise available for defence against fungal spread.

58. It was clear that Ms Cave valued the tree highly and had performed the role of tree steward by ensuring regular maintenance, primarily through the accepted practice of pruning by quality arborists, no doubt at considerable expense. Regrettably, just as the pruning by the Norman’s had not benefitted the tree’s health and potential longevity, nor had pruning commissioned by Ms Cave, in terms of the cumulative impact. Therefore, Ms Cave’s claim that pruning by the Norman’s caused the tree great harm while the pruning commissioned by Ms Cave had been positive for the tree is unfounded. The pruning by both parties had been negative for tree health and long-term structural condition. However, there was no evidence that either party acted with knowledge of such an outcome, nor malicious intent.

53. Given the tree’s current condition, I concur with both Mr Jackson and Mr Bruce, that very limited and only short-term benefit was available from further pruning.

54. The tree contributes to the respondent’s privacy, protection from the sun and wind, and to the amenity of the land on which it is situated. Though it is located in the rear yard, it is conspicuous from many neighbouring properties. Being very large, with a dense canopy and located part way up a slope, the tree is highly visible from nearby streets. Therefore, it provides significant intrinsic public amenity. As a tree within the Annandale Heritage Conservation Area, it has some historical significance (s 12(b3), (c), (e) and (f)).

55. Though the tree is exotic and is unlikely to be an important food source, it is large and mature and likely to provide habitat for fauna. Thus, the tree contributes to its local ecosystem and to biodiversity (s 12(d)).

56. Section s 12(h) and (i) require the Court to consider, before determining an application, whether “anything, other than the tree, has contributed, or is contributing” to any such damage or likelihood of damage or such likelihood of injury, including any act or omission by the applicant and the impact of any trees owned by the applicant, and any steps taken by the applicant or the owner of the land on which the tree is situated to prevent such damage or injury.

57. The gravity of the damage and of the risk of injury due to the major branch failure of December 2022, demanded Ms Cave consider the reasonable possibility of branch failure recurrence. The failure by Ms Cave to seek advice from a qualified arborist, for example, comes under s 12(h) and (i) of the Trees Act, as a contribution to damage or likelihood of damage or likelihood of injury by the tree.

58. The age and nature of structures is also considered under s 12 (h) and is relevant with respect to the applicants’ paving damage claim.

Summary discussion

65. Returning to risk of injury, both under the TRAQ analysis, and more generally, a risk rating above low is very rare. However, the factors I have hitherto explained about this tree in this location render it unusually risky. If I apply a TRAQ assessment, the ‘Likelihood’ of branch failure is ‘Probable’ and ‘Consequences of failure’ are ‘Significant’. However, the risk presented by the tree is not greater than ‘Moderate’ because of the likelihood of relatively low human occupation rates in back yards (as reported by the applicants) following previous branch failures.

66. Nonetheless, Mr Bruce’s determination of low risk of personal injury is not an error, as risk assessments require judgments, and thus subjectivity. All three arborist reports assisted the Court and were largely non-partisan. In the Canopy report, I found the unusually wide range of 1-15 years to be quite revealing. Additionally, ‘Mitigation Options’ in the Canopy report, noted, at 3.3, “If this tree is to be retained, considering its current structure, reactive pruning is recommended…it is not guaranteed that this pruning will prevent future branch failure.” In my view, this opinion does not necessarily endorse the tree as being sound and safe.

67. One minor issue requiring clarification in the Bruce report is SLD. Branches determined as SLD do not display defects or obvious reasons for failure. Notwithstanding some opinions that one may detect very small faults in SLD branches using a microscope, the consistent and clearly evident cause of both the 2022 and 2024 branch failures was loss of wood strength due to fungal decay, perhaps exacerbated by strength loss from borer pupation tunnels.

68. Based on the arboricultural expertise which I bring to the Court, I noted, at [43], that Liquidambar styraciflua is genetically resilient with respect to re-establishment of leaf cover after pruning, storm damage, etc. Notwithstanding this propensity, the capacity of Liquidambar styraciflua to inhibit the spread of extant wood decay fungi that previously entered the tree through pruning or other wounds, generally reduces significantly as mature specimens age.

69. These dual characteristics reflect a visual paradox; though a tree may have ample leaves and appear healthy, it may also be structurally unsound and unsafe. This is the situation with this tree. As did Mr Jackson and Mr Bruce, I anticipate that further branch loss is predictable and will probably occur more frequently. Given the tree’s size and the constraints of the site, tree removal shall therefore be ordered.

70. Major ‘Stump grinding’ would require significant disturbance to paved areas and significant cost for paving reinstatement. Such ‘Stump grinding’ is unnecessary, however, as the base of the trunk, cut level, is likely to remain intact for many years.

71. It is important that the tree is effectively poisoned, however, as it is otherwise prone to producing large, persistent root suckers in surrounding yards. This is best achieved by the arborist poisoning the tree a few weeks prior to removal, to allow the poison to be transported to all roots.

72. For the applicants’ proposed orders (2) and (3), I am not satisfied that compensation for the insurance excess arising from the branch failure of 6 December 2022 is reasonable. Prior to this point, the reported history of small branch failure was not sufficient to arouse major concern. Branches caused damage to the applicants’ clothesline in or around 2015, and in 2022, and branches lodged in the tree above Ms Cave’s yard in 2020. However, these events were spread over an eight-year period, and the damage was relatively minor. As such, these branch failures were not sufficiently serious to demand a major response. These events did not prompt an arborist inspection by the applicants. Similarly, it is unlikely that Council would have found the loss of these branches to be extraordinary.

73. I am satisfied, however, that the failure of the branch on 6 December 2022 represented a distinct change. The branch that failed was large, long, and at least 200mm in diameter, much bigger than previous branches. Damage to various items in the Norman’s back yard was obvious. Based on the appearance of the demolished table alone, it was reasonably obvious that a person impacted by the branch that caused such damage, would probably have suffered serious injuries. The inspection and subsequent report by a highly qualified, experienced arborist, at the Norman’s initiation, noted that wood decay fungus had caused the branch failure, and that further branch failure was likely.

74. In spite of these facts, and reasonable assumptions and opinions communicated to the respondent in multiple emails or letters, Ms Cave minimised the applicants’ damage, suggesting it would be covered by insurance and that it occurred in the back 20% of the applicants’ yard. In response to the Norman’s heightened apprehension that further branch failures were increasingly likely, Ms Cave claimed the tree was healthy, that “there is no evidence of decay”, and opined that if additional branches fell, they would fall heavy (butt) end first, and thus would not damage the applicants’ dwelling rooms closest to the tree or injure people in the dwelling. Ms Cave thus chose to rely on her own opinions rather than gain advice from a suitably qualified arborist, notwithstanding there was no evidence before the Court that Ms Cave had arboricultural qualifications or expertise on which to reasonably base such opinions.

75. The tree did and does have extensive fungal decay, yet this may not be obvious to non-arborists, who don’t necessarily know how to recognise external indicators of likely internal fungal decay or where to look for such indicators. Secondly, branches do not necessarily fall and land heavy end first. The trajectory of failed branches varies, depending on factors such as whether the breakage is initially partial or complete, or due to deflection off other branches. Further, structurally compromised trees may and often look healthy.

76. In Robson; at [207], his Honour states:

“… the nature of the conduct and the state of knowledge of a person on whose land a tree which causes a nuisance is situated” (see discussion above at paragraphs 44-90), would be relevant in ascertaining whether any act or omission of that person has contributed or is contributing to the damage or injury. Thus, it would be relevant to consider whether the person created the nuisance constituted by the tree having caused, causing, or being likely to cause damage, or whether the person adopted or continued that nuisance. Such conduct could be said to be “anything, other than the tree, that has contributed, or is contributing to any such damage.” (Emphasis added.)

77. While the tree lopping from decades ago may be viewed as the creation of the nuisance that led to the tree causing damage and risk of injury, as noted previously, the source of the damage is now irrelevant. However, as noted at [62], with respect to s 12 (h) and s 12 (i), the gravity of the damage and of the risk of injury due to the major branch failure of December 2022, demanded consideration of the reasonable possibility of branch failure recurrence, and action such as seeking advice from a qualified arborist.

78. By omitting to at least clarify the tree’s status in light of the significant branch failure of December 2022, Ms Cave “adopted or continued” the nuisance being caused by the tree. Consequently, orders shall be made for Ms Cave to compensate the Norman’s for the insurance excess of $600.00 for limb failure on 14 February 2024.

79. Regarding the applicants’ proposed orders (4) and (5), Commissioners do not have powers to order costs for expert reports, or legal costs or the like. Applications for such costs are made by Notice of Motion to the Court, and are heard by a Registrar or a Judge.

80. At proposed order (6), the applicants’ claimed $11,810.00 “for repairing paving damaged by the Liquidambar roots over the years”, based on a quote from Yarradee Landscaping (the Yarradee quote).

81. This claim is unreasonable for the following reasons. The Yarradee quote was for new paving on a new foundation and for four new stairs, but the existing paving was long established. Under s 12 (h) of the Trees Act, the Court considers that all structures are subject to age-based wear and tear, thus compensation for repair or replacement of aged structures is generally discounted accordingly. The applicants did not take me to the stairs noted in the quote as ostensibly needing replacement, nor provide tangible evidence of past damage. Further, the Limitation Act 1969 applies under the Trees Act, limiting payment of compensation to claims of damage that occurred as a result of the tree over the past six years. The applicants’ claim for root damage “over the years”, does not provide detail or evidence quantifying such damage, nor for delineation between damage within the last six years and damage which occurred more than six years ago. Lastly, the Court’s usual procedure is to provide each party the opportunity to submit quotes for works. Where quotes meet the specifications of an order, but the parties cannot agree on a contractor, the cheapest quote is generally used as the basis of compensation. Given the Yarradee quote is not a reasonable basis for the works, and I was not taken to damaged stairs or other obvious current damage, a reasonable alternative scope of works is unavailable to the Court.

82. Nonetheless, I accept that the tree’s roots were likely to have caused recent paver uplift damage and some current damage for which some compensation towards cost of providing a safe, fairly flat surface is reasonable. Further, it is reasonable for the section of the stump within the applicants’ land to be ground at least to paver level, to allow for installation of a section of fence in the gap currently occupied by the tree. To this effect, orders will be made for the respondent to pay an arbitrary total of $1,000.00 compensation towards the cost of these various landscaping works by the applicants. Additionally, the respondent shall organise and pay for replacement of the section of fence.

83. Proposed orders (7) and (8) shall not be made as they are either intangible, hypothetical, or claims for rehousing expenses and the like, for which there is no available remedy under the Trees Act.

84. In the absence of the tree, proposed order (9) will become largely irrelevant.

85. Regarding proposed order (10), both parties procured a quote from licenced roofers for repair of a shared box gutter. The specifications of the repairs in Ms Cave’s quote from Sydney Oracle Roofing do appear to provide for a more durable outcome than the Norman’s quote from Sydney Wide Roofing. Sydney Oracle Roofing also offer a 7-year warranty on all works relative to a 2-year warranty for non-structural works, from Sydney Wide Roofing. Therefore, the specifications from Quote 893 from Sydney Oracle Roofing with a 7-year warranty (Quote 893) shall be the criteria for the works, and each party shall pay 50% of the cost of the works upon completion. The Norman’s may procure one alternative quote with the precise criteria of Quote 893. However, considering the organisational and time demands of procuring a further quote, the likely additional conflict, and a limit of 60 days for completion of the works in satisfaction of the Order, I encourage the Norman’s to proceed with Sydney Oracle Roofing to undertake the works.

86. For proposed order (11), all orders for works specify engagement of contractors with all appropriate insurances. Therefore, should damage to the applicants’ property occur during tree removal, responsibility for compensation for such damage shall rest with the contractor and or the contractor’s insurer.

Conclusions

87. Based on tree assessment and adduced evidence, my conclusions are:

1. The Liquidambar is a significant tree which contributes to public amenity, provides vital shading and other important human and ecological services, and softens the impact of the built environment. Benefits provided by trees are often not appreciated until trees are absent.

2. The situation is unambiguous; the branch failure wounds from 2022 and 2024 were riddled with wood decay fungus. Due to historical lopping and the cumulative negative impacts on tree health and protective functions of excessive pruning – albeit undertaken with good intentions – the tree is now structurally flawed and unsafe.

3. Given the constraints of the site, I concur with the arborists’ reports which anticipated unabated future branch failures and recommended removal. Though more circumspect, the Canopy report did not argue against near future tree removal as a reasonable option.

4. Regrettably, additional pruning, however severe or frequent, is not a viable alternative option. Long term loss of amenity due to restricted access to multiple neighbouring back yards is also unreasonable. Genuine mitigation of the high likelihood of property damage and moderate risk of personal injury as a consequence of the tree can only be provided by tree removal. In spite of the tree’s myriad benefits and contributions, personal safety and property protection must be prioritised.

5. An order shall be made for planting of suitable replacement trees in both parties’ properties and maintenance of said trees, at least until they attain sufficient proportions to be deemed prescribed trees under Council’s DCP. Council or the DCP may assist with tree selection.

6. It is customary for the respondent, the tree’s owner, to be liable for the cost of executing orders made under the Trees Act, unless the Court finds a good reason otherwise. As there is no reason here for such a variation, the respondent shall pay for the cost of tree removal.

Orders

88. The Court orders that:

1. The respondent shall pay the applicants $1,600.00 (comprising $ 600.00 for 2024 insurance excess and $1,000.00 for stump grinding and paving uplift repair) by Electronic Funds Transfer, within 30 days of the date of these orders.

2. The respondent shall engage and pay Australian Quality Framework (AQF) level 3 arborists with all appropriate insurances (the arborists), to remove the tree to around ground level and poison the stump, within 60 days of the date of these orders.

3. The respondent shall engage and pay a fencing contractor with all appropriate insurances, to install a section of fence on the common boundary, into the gap currently occupied by the tree. The materials and dimensions of the fence section shall match the materials and dimensions of the existing common boundary fence. The fence section shall be installed within 14 days of completion of the tree removal.

4. The applicants and the respondent shall each plant a medium sized replacement tree in their backyard, clear of boundaries by at least 1m, and maintain said trees at least until they attain sufficient proportions to be deemed a prescribed tree under Council’s Development Control Plan.

5. The tree removal works shall be completed in accordance with the Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016.

6. The applicants shall provide all reasonable access for the arborists and fencing contractor to undertake their works and to remove debris from the applicants’ property upon receipt of at least 72 hours emailed notice of the date and approximate start time of the respective works.

7. All works shall be undertaken during reasonable daytime working hours.

J Douglas

Acting Commissioner of the Court

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Decision last updated: 13 March 2025