The Owners Strata Plan 56111 v The Owners Strata Plan 39425

[2023] NSWLEC 1182

Land and Environment Court

New South Wales

Medium Neutral Citation:

The Owners Strata Plan 56111 v The Owners Strata Plan 39425 [2023] NSWLEC 1182

Hearing dates:

23 January 2023

Date of orders:

19 April 2023

Decision date:

19 April 2023

Jurisdiction:

Class 1

Before:

Douglas AC

Decision:

See Orders at [64]

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) –damage to roofs, pipes and paving – claim of tree risk – considerable s 12 considerations

Legislation Cited:

Environmental Planning and Assessment Act 1979

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

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292

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

Yang v Scerri [2007] NSWLEC 592

Texts Cited:

Australian Standards, AS 4373:2007, Pruning of amenity trees, March 2007

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

Category:

Principal judgment

Parties:

The Owners Strata Plan 56111 (Applicant)
The Owners Strata Plan 39425 (Respondent)

Representation:

Nick Amoroso (Agent) (Applicant)
Non-appearance (Respondent)

File Number(s):

2022/280808

Publication restriction:

Nil

Judgment

COMMISSIONER:

Background

1. The applicant, The Owners SP No 56111, share a long side boundary with the respondent, The Owners SP No 39425, which runs roughly east-west from the front roadside entrance to the rear. The properties are located in Warriewood, where 23 mature trees are growing on the respondent’s land in relatively close proximity to the boundary.

2. The Owners SP No 56111 made an application, pursuant to s 7 of Pt 2 of the Trees (Disputes between Neighbours) Act 2006 (the Trees Act), seeking removal of all 23 trees, based on damage that the trees have caused, are causing, and are likely to cause in the near future, and on a claim that the trees present a genuine risk of injury.

3. The respondent provided the Court with notice of non- appearance for the final onsite hearing, as they also seek removal of the trees and do not contest the application. The respondent had previously applied to Northern Beaches Council (Council) seeking removal of some of the trees, but their application was refused.

4. The respondent has pruned the trees relatively regularly in the past, under the exemption from permission provided by Council for pruning a maximum of 10% of each tree’s foliage. Unsurprisingly, as the respondent contracted and paid for these works, the pruning was primarily focused on foliage overhanging the respondent’s land.

The on-site hearing

5. The hearing commenced on the morning of 23 January 2023 with an inspection of the trees, in the presence of body corporate committee members for the applicant, and other interested residents. There were 24 trees shown on the site diagram in the application, but on site it transpired that tree’s 6 – 9 were in fact a group of 3 Casuarinas, with the appearance of 4 trees as one had dual trunks. Nonetheless, to avoid confusion in the judgment, I have retained the numbering as shown in the application. Tree details are listed in the table below:

Tree number	Tree species
1	Eucalyptus botryoides (Southern Mahogany)
2	Eucalyptus botryoides
3	Eucalyptus botryoides
4	Eucalyptus botryoides
5	Eucalyptus botryoides
6	Casuarina cunninghamiana (River She Oak)
7	Casuarina cunninghamiana
8	Casuarina cunninghamiana
9	Casuarina cunninghamiana
10	Eucalyptus botryoides
11	Casuarina cunninghamiana
12	Casuarina cunninghamiana
13	Casuarina cunninghamiana
14	Eucalyptus botryoides
15	Casuarina cunninghamiana
16	Casuarina cunninghamiana
17	Casuarina cunninghamiana
18	Casuarina cunninghamiana
19	Casuarina cunninghamiana
20	Casuarina cunninghamiana
21	Casuarina cunninghamiana
22	Eucalyptus botryoides
23	Casuarina cunninghamiana
24	Casuarina cunninghamiana

Observations and submissions

6. There are 8 semi-detached town houses (units) under consideration, with the rear walls of units 1 – 7 parallel and proximal to the parties’ east-west common boundary. These units are located within 3 buildings containing either 2 or 3 dwellings, with side walls that are perpendicular to the common boundary.

7. The trees range in height from about 12 metres (m) to 21 m, with the canopies of most of the Eucalyptus trees overhanging the applicant’s land and dwellings, to a greater or lesser extent relative to the size of the trees and the distance of the dwellings from the boundary. The distance to the boundary varies between the buildings containing groups of units. The growth habit of the Casuarina’s is more columnar than the Eucalyptus trees such that the Casuarina’s overhang the boundary, and the units’ rear yards and roofs, far less.

8. The applicant claimed that roof tiles had been broken by falling branches above all 8 units consequent of all 24 trees, requiring ongoing tile replacement. The applicant similarly claimed that all 8 units have had blocked and damaged gutters and downpipes caused by leaves and fruit falling from all 24 trees into gutters, requiring “regular gutter cleaning from professional roofing experts”.

9. There is a bin storage area at the front of the property close to the common boundary. The applicant showed the Court leaves, sticks, and other tree debris on and surrounding the bin storage area’s corrugated iron roof that fell and blew, particularly from adjacent Eucalyptus trees, and was said to require regular maintenance to clear debris.

10. To the west of the bin storage area, units 1 and 2 are located closest to the street entrance at the eastern end of the property. Amongst units 1 – 7, these dwellings are furthest from the common boundary, with mid-sized back yards between the units and the boundary. The applicant claimed that an outdoor lounge in the rear yard of unit 1 had been damaged by a falling branch, and that exposed roots in the rear yard of unit 2 had been a trip hazard and thus a risk of injury for children. These roots had been removed, however, when turf was recently installed.

11. The building comprising units 3 – 5 is about 10 m west of that containing units 1 and 2. Units 3 - 5 have small rear courtyard gardens, and, of the 8 town houses, are located closest to the common boundary.

12. The applicant provided photographic evidence of a Eucalyptus branch which had penetrated through the gyprock ceiling of an upstairs bedroom of unit 3, after initially piercing through a roof tile. The branch appeared to be protruding through the ceiling by about 200-300mm. This damage was repaired at the applicant’s expense. Consequently, the applicant claims that branches overhanging this unit’s roof are likely to cause further damage and present a genuine risk of injury.

13. The applicant submitted that “Units 3 and 4 had (terracotta) sewers replaced due to tree root damage in September 2018”. Photographs provided by the applicant showed roots that had infiltrated a PVC sewer pipe behind unit 3 in 2020. A terracotta sewer pipe had also been blocked by roots at a T- junction under the wooden deck of unit 5 in 2021, but this pipe was replaced with PVC pipe and an inaccessible section of the residual terracotta pipe was relined.

14. A large Eucalyptus root had crushed a PVC stormwater pipe at unit 3 in 2021. Plumbers severed this root a considerable distance from the pipe and replaced the damaged section of PVC stormwater pipe.

15. The applicant submitted that no further repairs or intervention to sewer and/or storm water pipes had been required since pipes were replaced or repaired between 2017 and 2021.

16. The applicant claimed that the brick paved surface of the small courtyard of unit 4 had been damaged by roots from trees 14 - 19 growing beneath the pavers, and that the glass top of a small table in the courtyard of unit 4 had been broken by a dead branch that fell from tree 14. The applicant submitted that this fallen branch thus presented a genuine risk of injury.

17. The resident of unit 5 advised that he had employed contractors to prune overhanging branches from Casuarina trees 15 - 17 on 2 occasions since he occupied his unit 5 years ago. There were few overhanging branches remaining on these trees.

18. Units 6 and 7 were in a third building, west of units 3 – 5, and were positioned a little further from the common boundary than units 3 – 5. There was one brick paver near the centre of the rear courtyard of unit 6 that was raised by about 1 cm above the paved surface. The resident of unit 6 noted that uplift of this paver had also occurred in the past, that he repaired this paver uplift by shaving away the top of a root under the paver, and that this provided a satisfactory solution.

19. Unit 8 was located on the southern side of a building housing a group of units at the far western end of the applicant’s land. The units in this building at the site’s western end were oriented towards the east, while units units 1 - 7 faced north. The external wall on the south side of unit 8 was about 4 - 5 m from the common boundary, with a lawn about 3 m wide in between.

20. Laurie, a resident of unit 8, provided a photograph for the application that displayed a dead branch that fell from the overhanging Eucalyptus tree 22 and penetrated the lawn near his clothesline. Laurie estimated that the branch was 3 m long by 8cm diameter and he claimed that the branch could have caused serious injury or death, had it fallen on him or his wife. Laurie also submitted that he is fearful during storms that Eucalyptus tree 22 “will fall onto our house”, “as at least 70% of the branches are over our property”, including the roof, and he claimed that it was “only a matter of time before the root system works its way into the water or sewerage of unit 8”.

21. The applicant also claimed that “the boundary fence (between the properties) is falling over due to the root system” of tree 22.

Jurisdictional requirements

22. With respect to s 7 of the Trees Act, 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 (or trees) to which this Act applies, that is situated on adjoining land.

23. The applicant has satisfied the requirement under s 8(1)(a) of the Act: to serve notice to the respondent more than 21 days prior to the proceedings, and also to Council, who provided a response noting non-appearance at the final hearing.

24. Section 9(1) of the Trees Act says 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/s the subject of the application. In accordance with s 9(2)(h), an order so made may require the payment of costs associated with carrying out an order under this section.

25. The applicant has satisfied s 10(1)(a) of the Trees Act: to make a reasonable effort to reach agreement with the owner of the land on which the tree is situated. The applicant noted communication between the respective strata agents and discussion between committee members of both parties with a view to having all the trees removed.

26. The next major test that is posed, by s 10(2) of the Trees Act, states:

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

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

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

Findings

27. I am satisfied that some of the trees have caused damage to sewer pipes and a storm water pipe, to paving, and to a ceiling of unit 3. Based on deadwood in some Eucalyptus trees overhanging the roofs and photographs within the Application Claim Details (Form H), I am also satisfied that roof tiles had been broken by falling dead wood and that some branches may present a low to moderate risk of injury. Consequently, s 10(2) of the Trees Act is engaged.

28. With s 10(2) of the Trees Act satisfied, I have jurisdiction under s 9 to make a wide range of orders with respect to the trees. To determine, what, if any, orders should be made, the Court must consider relevant matters in s 12 of the Act, as follows:

Discretionary matters – s 12

29. The trees are spread along the common boundary within the respondent's property (s 12(a)).

30. In the absence of s 6(3) of the Trees Act, removal or major pruning of the trees would require approval under the Environmental Planning and Assessment Act1979, as administered by Council. The respondent’s prior application for tree removal was refused by Council (s 12(b)).

31. The removal of all the trees would create a significant impact on the site, on the natural landscape and scenic value of the land on which they are situated, on their intrinsic value to public amenity, and on the local ecosystem and biodiversity.

32. The trees provide protection from the sun and from wind. Many serious storms have occurred in this area over recent decades but there was no indication of wounds on trees suggestive of major branch damage or even widespread minor damage. Though the applicant focused on risk from falling branches, paradoxically, this row of trees would provide a barrier that is likely to slow and modify prevailing southerly and south-westerly winds and protect buildings and yards from damage that is likely to otherwise result from strong storms. Readily available evidence supports this notion, the most conspicuous examples being windbreaks, and large trees planted around dwellings in exposed rural areas. The trees soften the landscape impact of the buildings of both properties, and they provide considerable public amenity, particularly the relatively large Eucalyptus’ at the sites’ eastern end which adjoins a relatively major thoroughfare. All the trees are likely to provide food and habitat for native fauna, particularly the Eucalypts, as their endemic natural distribution extends north into this region. The trees’ contribution to privacy should also not be underestimated – this is often not appreciated until trees are removed (ss 12(b3),(d),(e),(f)).

33. The trees are likely to improve soil structure and stabilise soil. As these properties are relatively flat and located in an area that may be prone to flooding, the trees are likely to mitigate such propensity by absorbing water and lowering the water table (s 12(g)).

34. Subsection 12(h)(i) considers anything, other than the trees, 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.

35. The “age and nature of the structure” is considered here, as a certain amount of wear and tear is expected to arise with any structure over time. Terracotta sewer pipes originally installed on the site are likely to be at least 30 years old, because PVC pipes have usually been utilised since well before 1990. Terracotta pipes for domestic use were usually about 1.5 m long with joints containing large rubber washers sealed with mortar. With natural movement in the soil and material deterioration that occurs over time, seals at junctions deteriorate, allowing leakage, and ingress of roots.

36. Roots are not aggressive, they simply flourish where conditions are conducive for growth i.e, in areas of moisture and nutrient accumulation. Consequently, when PVC pipe junctions are glued correctly, and thus there is no leakage, roots do not usually accumulate nearby, and they very rarely penetrate. Therefore, it is likely that the root/s that entered the PVC sewer pipe behind unit 3 in 2020 resulted from an inadequately sealed junction arising from poor workmanship.

37. With respect to “any act or omission by the applicant”, a theme noted throughout Form H and during the applicant’s oral submissions, was damage from debris falling from the trees onto roofs, gutters, and yards, and the maintenance time and cost that arose from such debris.

38. Annoyance or discomfort from debris dropping or blowing from trees onto neighbouring land is an element common to many applications made under Pt 2 of the Trees Act. In Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (Robson), at [171], Preston CJ addresses this issue:

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 neighbours 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.

39. The related issue of encroachment of branches over neighbouring land is addressed at [56] of Robson where his Honour, discussing the issue of nuisance, states that “mere encroachment is insufficient to complete a cause of action” under the Trees Act.

40. Claims related to excessive maintenance that also commonly arise in applications under Pt 2 of the Trees Act are addressed in Barker v Kyriakides [2007] NSWLEC 292 (Barker), which, at [20], establishes the Tree Dispute Principle:

It is now appropriate to state these in a more specific form as a principle which may be applied when considering urban trees and ordinary maintenance issues arising from them. We state the principle in the following terms:

“For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis.

The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees will not ordinarily provide the basis for ordering the removal of or intervention with an urban tree. The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees will not ordinarily provide the basis for ordering the removal of or intervention with an urban tree.”

Conclusions

41. I have inspected the trees and the site and reached the following conclusions:

42. The tree dispute principle established in Barker has been consistently applied by the Court and it applies here with respect to much of the tree debris described by the applicant, observed during my inspection, and shown in the photographs supplied to the Court in Form H.

43. There is no remedy available under the Trees Act for debris, as described at [20] of Barker, that falls or blows from any of the Eucalyptus and Casuarina trees into residents’ yards. I am satisfied that any cleaning that residents choose to undertake to clear such debris from their relatively small yards is reasonable maintenance, particularly as much of this material could be swept or raked into surrounding garden beds and retained as mulch.

44. Orders will, however, be made to remedy specific past or present occurrences of damage, to prevent damage that is likely to occur in the near future, and to mitigate risk. In making orders, so as to maintain the myriad significant benefits that the trees provide, the option of tree removal shall be a last resort.

45. All Eucalyptus branches overhanging yards and dwellings of units 1 - 8 shall be pruned to reduce the extent of foliage overhanging roofs, but the extent of this branch reduction pruning shall be limited such that at least 2 m of foliage overhanging each building from each branch shall be retained above the roofs.

46. The reduction pruning shall be completed with strict adherence to the guidance of AS 4373-2007, Pruning of amenity trees. In satisfying the reduction pruning guidance in this Australian Standard, it is likely that some residual branches will need to extend more than 2 m north of the gutter line, or north of the south side wall in the case of unit 8.

41. All dead branches on the Eucalyptus trees, above 10 mm diameter at the branch collar, which overhang residents’ yards and dwellings, shall be removed.

42. The usual specification the Court applies for pruning of deadwood is 20 mm diameter at the branch collar, but as the Eucalyptus trees present a low – moderate risk to people, particularly to children in back yards, a specification of 10 mm diameter at the branch collar is appropriate to mitigate tree risk to an acceptable low level.

43. This pruning will provide a balance which significantly reduces both the likelihood of overhanging dead branches breaking roof tiles, and the quantity of leaves, twigs, flowers, and fruit falling or blowing onto roofs and into gutters. The resultant extent and nature of tree debris will be reasonable in accordance with the tree dispute principle and maintenance expectation established in Barker, while retaining sufficient live foliage coverage so as not to heavily stress the trees.

44. Though the trees currently exhibit good health and vitality, stress resulting from excessive pruning would likely promote the development of relatively weakly attached epicormic (sucker) growth along internal areas of branches, to which this species is prone. Even if the overhanging foliage from these trees was pruned back to or in proximity of the gutters, debris would continue to blow onto roofs and gutters, but the required pruning would be excessive and would likely heavily impact tree health.

45. Eucalyptus trees 1 – 5, located near the east end front entrance, are particularly important in providing intrinsic local amenity. Except for branches that extend more than 2 m north of the gutter line of units 1 and 2, these 5 trees shall not have live foliage removed. Any branches located east of the roof of unit 1, which overhang the roof of the bin storage area, and pedestrian paths or driveways, shall be pruned to remove dead wood larger than 20 mm diameter at the branch collar. As the rate of human occupancy of this area is likely to be low, and people are likely to be mobile on paths and driveways, the resultant risk will be low and acceptable. Based on the tree dispute principle in Barker, the maintenance expectation to clear debris falling from Eucalyptus trees 1 – 5 onto paths east of unit 1 and onto the bin storage area roof, is reasonable.

46. Where branches of Eucalyptus trees 1 - 5 pass above the rear yards of units 1 and 2, they shall be pruned to remove dead branches larger than 10 mm diameter at the branch collar, but all live foliage on these branches, above these rear yards and extending east of unit 1, shall be retained.

47. Eucalyptus tree 22 overhangs unit 8 and has a moderate level of epicormic growth emanating from branches in its intermediate canopy. These branches may be poorly attached to the tree, so, in addition to the reduction pruning and deadwood removal noted above, these branches shall be removed.

48. Orders will also be made to prune deadwood from the Casuarina trees which overhang lawns and paved areas in residents’ yards, but the Court’s usual specification of 20 mm diameter at the branch collar will be applied, as deadwood on this species generally persists on the tree after dying, and it usually partially decays and perishes prior to falling. In any case, largely due to the Casuarina trees’ more narrow, erect habit, these trees contained few dead branches above 10 mm diameter at the branch collar, overhanging any yards.

49. Casuarina 24, a relatively small tree in the north-western corner of the site, has a long vertical wound on one of its dual trunks, possibly resulting from a glancing lightning strike. While the jurisdiction of the Trees Act covering damage is limited to the applicant’s property, and, based on Yang v Scerri [2007] NSWLEC 592 (Yang), near future damage is considered to be a period of about 12 months, the Trees Act provides no such location or temporal limit for tree risk, and thus covers both parties’ land in the future.

50. Though there may usually be little human occupancy near this tree, breakage of the wounded trunk is likely in the mid-term and is unpredictable, and this tree provides minimal amenity. Consequently, orders shall be made for the removal of Casuarina tree 24.

51. Orders will also be made for future maintenance of the trees, but pruning of live foliage shall occur only every third year to also minimise tree stress. Deadwood, however, shall be pruned annually.

52. As sewer and stormwater pipes behind units 3 – 5 have been replaced with PVC pipes or repaired, and no subsequent damage has been reported since 2021, I am not satisfied that near future damage is probable, given that near future damage is limited, per Yang, to about the next 12 months.

53. No evidence, other than speculation, has been provided by Laurie, the resident of unit 8, to substantiate his claim that it is “only a matter of time before the root system (of Eucalyptus tree 22) works its way into the water or sewerage”. While the pipes may be damaged in the future, I am not satisfied that damage is probable in the near future. Presuming these pipes are also made of terracotta, consideration must be given to their “age and nature” as addressed above at [35].

54. Therefore, even if such pipes were damaged by roots at some future time, the remedy would likely be replacement with PVC pipes rather than tree removal, and the cost would not necessarily be borne by the respondent. Further, there is nothing about the appearance of the visible roots or trunk of Eucalyptus tree 22 that renders it likely to fall onto unit 8. In any case, the reduction pruning ordered for this tree will remove much of the canopy overhanging unit 8.

55. While the single paver uplift in unit 6 has been and can be easily remedied by the resident, I am satisfied that much of the brick paved surface of the courtyard of unit 4 had been damaged by roots from adjacent Casuarina trees 15 - 17 growing beneath the pavers, and that further damage is likely in the near future. Root pruning is not a viable solution, given the close proximity of these trees. Consequently, orders shall be made for the removal of Casuarina trees 15 – 17 including the roots under the paving at unit 4, and for reinstatement of a flat paved surface, utilising the existing pavers.

56. Finally, I am not persuaded by the applicant’s claim that the common boundary fence is falling over due to the root system of tree 22. This timber fence is said to be over 20 years old, and posts and some rails exhibited advanced wood decay. I am thus satisfied that natural wear and tear was the cause of the fence failure, rather than tree 22.

57. Similarly, although some trees are growing close to, or against the fence, and some tree roots appear to be causing minor fence uplift, other than at the western end near tree 22, the fence remains functional and apparently safe along its length, and this minor damage is accounted for by the “age and nature of the structure”, as considered at s 12(h)(i) of the Trees Act.

Orders

64. Consequent to the above, the Orders of the Court are:

1. Within 60 days of the date of these orders, the respondent, at its expense, shall engage Australian Qualification Framework (AQF) level 3 arborists, with all appropriate insurances (the arborists), to reduction prune branches from all Eucalyptus trees overhanging the applicant’s units 1 – 5, and 8. The extent of this branch reduction pruning shall be limited, such that at least 2 metres of all live branches and foliage extending north beyond each buildings’ gutter line (or the south side wall for unit 8), shall be retained. All live Eucalyptus branches and foliage, growing east of the eastern wall of unit 1, shall be retained, regardless of whether such branches also grow above the rear yards of units 1 or 2. Epicormic growth on branches in the intermediate canopy of Eucalyptus 22, adjacent to unit 8, shall be pruned.

2. Within 60 days of the date of these orders, the respondent, at its expense, shall engage the arborists to prune all dead Eucalyptus branches, above 10 mm diameter at the branch collar, which overhang rear yards and roofs of the applicant’s units 1 – 5, and 8.

3. Within 60 days of the date of these orders, the respondent, at its expense, shall engage the arborists to prune all dead Casuarina branches, above 20 mm diameter at the branch collar, which overhang rear yards of the applicant’s units 1 – 8, and to prune all dead Eucalyptus branches, above 20 mm diameter at the branch collar, which overhang the bin storage area and paths and driveways east of unit 1.

4. All pruning shall comply with the guidelines of AS 4373-2007, Pruning of amenity trees, particularly those relating to Reduction pruning.

5. Within 60 days of the date of these orders, the respondent, at its expense, shall engage the arborists to remove Casuarina trees 15 – 17, adjacent to unit 4, and Casuarina tree 24, at the western end of the respondent’s land. The trees shall be removed to near ground level, but shall not be poisoned, nor stump ground. Should suckers emerge from the stumps or adjacent roots, the suckers shall be repeatedly manually removed until they no longer regrow.

6. Within 90 days of the date of these orders, the respondent, at its expense, shall engage licenced landscape gardeners, with all appropriate insurances, to remove brick pavers at the rear of the applicant’s unit 4, remove tree roots from beneath the paving after severing them as close to the common boundary as practicable and reinstate the paving at the same location and level, utilising the existing pavers.

7. Approximately one year after deadwood is pruned from the trees, and during the same month of every subsequent year, the respondent, at its expense, shall engage AQF level 3 arborists, with all appropriate insurances, to remove dead branches in accordance with Orders 2, 3, 4, 9, 10, and 11.

8. Approximately three years after live foliage is pruned from the trees, and during the same month of every subsequent third year, the respondent, at its expense, shall engage AQF level 3 arborists, with all appropriate insurances, to reduction prune Eucalyptus branches in accordance with Orders 1, 4, 9, 10, and 11.

9. All tree works shall comply with Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016.

10. Should it be required, the applicant shall allow access to its property for completion of any of the works, upon receipt of at least 72 hours’ notice from the respondent, provided to the applicant via email.

11. All works shall be completed during reasonable daytime working hours.

J Douglas

Acting Commissioner of the Court

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Decision last updated: 19 April 2023