Land and Environment Court New South Wales Medium Neutral Citation: Campbell v Brentin [2022] NSWLEC 1527 Hearing dates: 22 June 2022 Date of orders: 27 September 2022 Decision date: 27 September 2022 Jurisdiction: Class 1 Before: Douglas AC Decision: See orders at [71]. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS): damage to sewer pipes; apprehension of additional damage to property; leaves, sticks, and other refuse from trees falling on applicants' land; is genuine risk of injury foreseeable Legislation Cited: Land and Environment Court Rules 2007 r 7.7 Trees (Disputes Between Neighbours) Act 2006 ss 7, 8, 9, 10, 12 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Black v Johnson (No 2) [2007] NSWLEC 513 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Stevens v Russell & anor [2016] NSWLEC 1233 Yang v Scerri [2007] NSWLEC 592 Texts Cited: AS4373-2007 Pruning of amenity trees Safe Work Australia 'Guide to managing risks of tree trimming and removal work', 2016 Category: Principal judgment Parties: Cherie Campbell (First Applicant) Neil Everson (Second Applicant) Daniel Brentin (Respondent) Representation: C Campbell (Self-represented) (First Applicant) N Everson (Self-represented) (Second Applicant) M Khan, (Agent) (Respondent) File Number(s): 2022/92059 Publication restriction: No Judgment 1. COMMISSIONER: The applicants, Cherie Campbell and Neil Everson, live in Windermere Park, a suburb in the Lake Macquarie Area which is characterised by bushland. Eight trees are subject to the dispute, comprising three Angophora costata (Sydney Red Gum)(Angophora), four Eucalyptus acmenoides (White mahogany), and one Cupressus sp (Golden Cypress). Ms Campbell and Mr Everson claim that some of the trees present a high risk, that some have damaged their sewer pipes, and roof, and that, individually and collectively, the trees which overhang their land shed leaves, sticks and other debris which falls or blows onto their roofs, gutters, and other surfaces, creating an unreasonable and costly maintenance burden. 2. Daniel Brentin, the respondent, does not live at his property, but rents it out to tenants. The parties share a side boundary. Since 2015, the applicants have made numerous attempts to contact the respondent, both directly and through his property agent (agent), but the rare replies they did receive from either did not result in any material response from Mr Brentin. 3. From 2017, after a series of sewer pipe blockages resulted from tree roots, the applicants increased the intensity of attempted contact with Mr Brentin, again with little response. Mr Everson first met Mr Brentin in mid-2019 when he attended his rental property to undertake storm damage to a shed. The applicants submitted that Mr Brentin refused to discuss the trees during this visit. 4. According to Mr Everson, in a phone call in November 2019, Mr Brentin advised that he was unemployed and in debt, could not afford to deal with the trees and that they were not a priority. 5. On Australia Day, 2021, Mr Brentin attended his tenanted property with his father. Mr Everson alleged that Mr Brentin climbed one of the trees via a ladder and cut a large overhanging branch which fell and damaged the applicants' roof and gutter. Mr Everson further claims that Mr Brentin's father responded with an offer to pay for the two most dangerous trees to be removed by professionals, but no such works transpired. 6. As a consequence, Ms Campbell and Mr Everson submitted an application, pursuant to s 7 of Pt 2 of the Trees (Disputes between Neighbours) Act 2006 (the Trees Act) seeking the removal of the trees, and compensation for the cost of repairing damage caused by the trees. On site hearing 1. Both applicants attended the onsite hearing, along with Mr Brentin's tenant, who appeared as an observer. According to documents lodged with the Land and Environment Court (Court), Mr Brentin had appointed Mr Shaneel Khan to act as his Agent for this hearing, and Mr Khan had provided the required confirmation of having read and understood rule 7.7 of the Land and Environment Court Rules 2007 (Court rules) and acknowledged his duty to "abide by them at all times". 2. When Mr Khan did not attend the hearing, I contacted him by phone. He advised that he was ill with COVID-19, that Mr Brentin was 'meant' to have contacted the Court and lodged additional documentation, and that he expected Mr Brentin to be onsite for the hearing. 3. Notwithstanding Mr Brentin's discourtesy to the Court as a result of his non-appearance, and failure to contact the Court, in the interest of justice I explained to Mr Khan the procedure to be followed in the hearing, and I allowed his request to be present remotely by telephone for the parties' submissions. 4. Mr Everson objected to the inclusion of Mr Khan when the time came for submissions, but there was no reasonable basis for Mr Khan to be excluded. His agency documentation met the requirements of the Trees Act, and, given the unusual circumstances arising from COVID-19, it was in the interest of transparency and justice for the Court to accommodate Mr Khan's request to access the Court. Further, the applicants suffered no disadvantage. 5. The respondents had intended for Mr Everson to act as agent in the proceedings for Ms Campbell. Though Ms Campbell lodged a Letter of Authority for Agent (Annexure F) with the Court, I found no document from Mr Everson to confirm that he had read, understood and agreed to be bound by rule 7.7 of the Court rules. As a consequence, Mr Everson's agency status was invalid, but Ms Campbell attended the hearing, in any case. 6. The trees are located within the respondent's property, some close to the common side boundary, while others are closer to the middle of the respondent's land. Proposed orders 1. The applicant seeks the following (summarised) orders; 1. The respondent, at his expense, shall remove eight (8) trees to near ground level, and poison their stumps. The respondent to subsequently monitor stumps for regrowth to ensure death of roots of trees damaging applicants' property. In the alternative, the respondent, at his expense, shall remove stumps and roots from the 8 trees. The respondent shall provide the applicants with at least 14 days' notice of proposed date of these works. Compliance works shall be overseen by Lake Macquarie City Council (Council) or undertaken by Council if the respondent fails to comply with this order. 2. Following the tree removal works, the respondent shall engage a contractor, with suitable qualifications and insurance, to rectify damage caused to common boundary fence by the trees. 3. The respondent shall pay the applicants $16,831 as compensation for past itemised costs and for repair of damage caused by tree roots and falling leaf litter and branches work, yet to be completed but quoted for, as detailed in the application, plus the applicants' costs incurred making this application. 4. Alternatively, in the event that the Court fails to grant the tree removal orders sought, the applicants seek orders for compensation payable by the respondent, for damages and ongoing damage including diminution in value to the applicants' property in the sum of $150,000. Jurisdictional requirements 1. 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 to which this Act applies that is situated on adjoining land. 2. The Court's ability to make orders is limited, at s 10 of the Trees Act. 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. 1. If the jurisdictional tests at s 10 of the Trees Act are 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. 2. The record of correspondence in the application and evidence of attempts to arrange mediation through a Community Justice Centre (CJC) engages s 10(1)(a) of the Trees Act, as the applicants have made a reasonable effort to reach agreement. 3. Therefore, the principal jurisdictional tests in this matter are at s 10(2) of the Trees Act. The tree assessments 1. Other than the Cypress, the trees are indigenous to the area. At least two Angophoras and two White Mahogany's are likely to have predated the development of the area. Two trees are dead and at least one Angophora is in poor condition, likely resulting from cumulative impacts arising from urbanisation. Mature Angophora's are generally not tolerant of changes in their root zones. 2. The applicants noted the impact of the trees' shading of their solar panels, but there is no remedy available for this under the Trees Act; it is not considered to be damage. With respect to the cleaning of bird droppings from solar panels, or honey dew excreted by psyllid insects, the Court has decided that the damage, or risk of injury must be caused by the tree itself, not by an animal living in or on the tree. Therefore, the Court has no jurisdiction to deal with applications concerning trees harbouring or attracting such animals. 3. This is explained at [189] of Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (Robson), where Preston CJ says: "Finally, the specification of the tree as being a cause of damage to property or injury to any person excludes damage or injury directly caused by animals, such as mammals, birds, reptiles or insects, which may be attracted to a tree or use it for habitat. Thus, although a tree when it flowers might attract bees seeking nectar in the flowers, and the presence of the bees might increase the risk of persons in the vicinity being stung by bees, it is not the tree itself that is likely to cause such injury of bee sting to any person, but rather it is the bees: see Immarrata v Mourikis [2007] NSWLEC 601 (12 September 2007) (Bly C, Fakes AC). Similarly, the fact that an animal which has caused, is causing or is likely to cause in the near future damage to property on adjoining land, uses a tree as habitat, such as for feeding, roosting or nesting, does not result in the tree itself having caused, causing or being likely to cause in the near future damage to the applicant's property: Dooley v Newell [2007] NSWLEC 715 (23 October 2007) (Moore C, Thyer AC) at [22]-[23]." As a result, there can be no successful claim under the Trees Act related to bird droppings or honey dew excreted by psyllids. 1. While 'bushfire risk' is a relevant consideration as the trees are in a 10/50 fire zone, the vegetation on this land does not appear unusual, relative to the surrounding 'bushy area'. The common side boundary runs from south at the street to the rear corner to the north, and the trees are numbered sequentially from south to north. 2. Tree 1: Tree 1 is a dead Angophora located near the front boundary and about 5 metres (m) from the applicants' house. It has sustained extensive beetle larvae (borers) damage over many years. 3. There are signs where deadwood has fallen from the tree and as the residual wood dries, cracks and deteriorates, increased deadwood shedding is likely. As it is close to the dwelling and the street, I am satisfied that tree 1 presents a genuine risk of injury to the applicants, and to pedestrians, and thus s 10(2)(b) of the Trees Act is engaged. 4. Though the residual dead tree, if retained, could still provide habitat, and contribute to biodiversity, the genuine risk of injury, and the likelihood of such risk increasing in the future must be prioritised. As a consequence, orders shall be made for removal. 5. Tree 2 is a mature mid-sized White Mahogany located more than 7m from both the front boundary and from the applicants' dwelling. It displays dense foliage and is fundamentally structurally sound. There are signs of a previous branch 'tear out', which, according to the applicants, occurred "during a strong windstorm", so is not necessarily indicative of further branch failures. There are no obvious signs of likely branch, trunk, or root/crown failure, so Tree 2 presents little threat to the applicants' dwelling from uprooting or trunk breakage. Though cars do park on the front yard, pedestrian presence under the tree would likely be infrequent. 6. Mr Everson submitted that the tree may possibly be "diseased with Bracket Fungi', but I saw no fungal brackets on Tree 2. Fungal brackets are the fruiting stage of wood decay fungi and are thus indicative of fungal activity, but mere fungal activity does not necessarily indicate near future failure is likely. 7. Species, age, vigour, and the virulence of the fungal pathogen all influence a trees response to wounding and speed of fungal spread. Many long-lived Eucalyptus trees, including White mahogany's, have extremely dense wood that resists fungal penetration. While such trees may display fungal brackets, provided they are healthy and vigorous, their wood normally walls off the fungus or deteriorates slowly, thus remaining intact and structurally sound, for many decades. I am satisfied that should Tree 2 contain small relatively inconspicuous fungal brackets, the extent of wood deterioration is likely to be limited. 8. Though Tree 2 has a moderate level of deadwood, when the infrequent occupancy of the target zone under and around the tree is considered, the risk it presents is low. As this is deemed an acceptable risk, no orders shall be made for this tree. 9. Tree 3 is the largest of the White Mahogany trees and it is of moderate height with a broad canopy spread. Of the trees, this has been most responsible for damage caused to the applicants' roof and gutters as a result of failure of overhanging branches. I accept the applicants' submission that Tree 3 is likely to be "the main contributor to tree root penetration and blockage of the sewer pipes running along the western side of the dwelling", which engages s 10(2)(a) of the Trees Act. 10. Tree 3 does have a large fungal bracket which displays characteristics of internal wood breakdown over a sustained period. While, as I explained above at [27]-[28], this should not automatically lead to tree removal, regular monitoring would be required. Considering the respondent's history of inadequate inspection and maintenance of his rental property, there is no reason to expect this will change in the future. 11. Therefore, as a consequence of past roof damage resulting from branch shedding, structural unpredictability due to the presence of fungal wood decay, and this tree's likely primary role causing damage to sewer pipes located within 3m of the tree, I am satisfied that removal is the appropriate remedy for Tree 3. 12. Tree 4 is a relatively young, small White Mahogany about 7m tall with a trunk diameter at breast height (DBH) of about 250mm. It shows signs of a prior branch failure, and some dieback in the upper canopy. The applicants claim that this a branch of this tree has fallen on their gutters and gutter guard, but they make no claim that damage resulted. They also note that it drops too much refuse. 13. I am not satisfied that damage is likely in the near future, where, in a guidance decision published in Yang v Scerri [2007] NSWLEC 592, as a rule of thumb, the 'near future' is deemed to be a period of 12 months from the date of the determination. Any risk associated with Tree 4 is an acceptable low risk, so no orders shall be made for this tree. 14. Tree 5 is a cultivar of Cupressus macrocarpa (Monterey Cypress), about 8m tall and 1.2m from the boundary. Its root zone is in close proximity to sewer pipes damaged by root incursion, and along with Tree 3, I am satisfied that this tree has caused such damage and is likely to cause additional damage, thus again engaging s 10(2)(a). Considering its poor location and likelihood of extensive future growth, tree removal is appropriate. 15. Tree 6 is a dead White Mahogany located about 600mm from the common boundary with branches overhanging the applicants' roof. I am satisfied that roof damage is sufficiently likely in the near future to engage s 10(2) of the Trees Act and justify removal. 16. Tree 7 is a mature Angophora set back from the common boundary between the applicants' dwelling and rear garage/ workshop. The applicants' claim that the tree causes damage by dropping debris on the garage/ workshop roof and presents a genuine risk of injury. While there is no remedy available for such debris under the Trees Act, I am satisfied that intervention is appropriate to reduce risk of damage and injury from falling branches. A major dead branch over the respondent's property shall also be removed to mitigate risk to the respondent's tenant, and the jurisdiction of s 10(2)(b) of the Trees Act provides for this. 17. Rather than tree removal requested by the applicant, pruning of dead and damaged branches should sufficiently mitigate the risk which Tree 7 presents, while retaining some of the tree's environmental contributions. 18. Tree 8 is a mature remnant Angophora which is growing across the boundary and damaging the common boundary fence. It is in poor condition, exhibiting symptoms of extensive dieback and weak epicormic growth, and long-term borer infestation suggestive of a significant reduction in root function, and probably root structure. It presents a moderate risk of injury which is likely to increase in future. Considering the respondent's poor inspection and maintenance regime, I am satisfied that removal is appropriate for Tree 8. 19. In summary, of the 8 trees, 5 shall be removed, 1 shall be pruned, and for 2 trees, no intervention is required. The maintenance burden from dropping refuse 1. The applicants repeatedly submitted that the maintenance required to deal with the quantity of leaves and sticks falling and blowing onto their roof and gutters was an unreasonable physical and financial burden. 2. This is a common complaint which was addressed by Preston CJ in Robson v Leischke (2008) 72 NSWLR 98; [2008] NSW LEC 152 (Robson) at [171]-[172]; 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. 172 I note that in Barker v Kyriakides [2007] NSWLEC 292 (24 May 2007) (Barker), Moore C, Hussey C and Fakes AC found, as a matter of discretion, that "[t]he dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree": at [20]. However, the problem is anterior to the exercise of discretion as to whether to make an order under the Act; there is no power to make an order in relation to the tree unless such debris of the tree "has caused, is causing, or is likely in the near future to cause, damage to the applicant's property" on the land: ss 7 and 10(2)(a) of the Trees (Disputes Between Neighbours) Act 2006. 1. In Barker, at [21], the Commissioners establish the following tree dispute principle: "…For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis." 1. Therefore, where there is evidence of damage arising from the falling debris, orders would be contemplated. However, consistent with the tree dispute principle established in Barker, the presence of debris in the absence of damage will not invoke the Trees Act's jurisdiction. 2. As a consequence, secondary damage that arises from a failure to undertake required property maintenance to mitigate debris impact is not actionable under the Trees Act. Specifically, this relates to claims arising from water ingress associated with blocked gutters. 3. It is also relevant to note the comment of Preston CJ in Robson, at [56], where he states that "mere encroachment is insufficient to complete a cause of action." Just because branches may overhang a property boundary or a roof, unless there is evidence of consequential damage, no remedy is available under the Trees Act. Sewer pipe damage 1. In Stevens v Russell & anor [2016] NSWLEC 1233 at [41], Commissioner Fakes notes that: "it is a common assumption that the mere presence or proximity of a tree is sufficient to conclude that the tree is the cause of the damage. It is not. It is necessary to find evidence to substantiate the assumption that the tree has caused the damage. In the case of alleged root damage, some excavation is usually required." 1. Excavation of the sewer pipes exposed root penetration in pipes at multiple locations. While the trees responsible have not been specifically identified, in the absence of trees on the applicants' property, or growing elsewhere in sufficiently close proximity to the damage, I am satisfied that a causal link between roots of the respondent's trees and the sewer pipes damage has been established, and the jurisdiction of s 10(2)(a) of the Trees Act is therefore engaged. 2. With respect to the applicants' request for orders for removal of all 8 trees, along with compensation for sewer pipe repair, further elements need consideration. 3. I am satisfied that at least four of the trees were in situ before the installation of the applicants' sewer. This includes the largest White Mahogany, which I accept, as the applicants' submitted, is most likely "the main contributor to tree root penetration and blockage of the sewer pipes running along the western side of the dwelling". 4. 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 but, subject to a range of matters discussed in the principle, the prior existence of the tree 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. 5. Mr Everton submitted that, based on advice from his plumbers, the sewer pipe repair could not be effective and durable unless all nearby trees are removed. Having assessed the interaction of pipes and tree roots for over three decades, I dispute this. Following the removal of the two closest trees most likely to be responsible for pipe damage, the only tree in proximity to the pipes is small Tree 4, which has DBH of only about 250mm. Any inability by licenced plumbers to repair the pipes so as to exclude further root penetration at least in the medium term, would be most likely to result from the use of insufficiently robust pipe products and/ or poor workmanship. Compacting clay subsoil around the pipes also helps to exclude oxygen, and thus roots. Compensation 1. With respect to their claims for compensation, the applicants' provided a summary of 8 expenses incurred since 7 February 2017, along with some receipts. Successful claims are the $380 cost of CCTV and Jet blasting by Wilmot Plumbing on 7 February 2017, $303.50 for 25% of B Dalton Roofing invoice/ receipt ($1214) of 19 July 2017, and sewer line works by The Plumbing and Electrical Doctor on 18 February 2020, 29 June 2021 and 2 July 2021, which total $1522. The 25% apportionment from the B Dalton Roofing invoice of 19 July 2017 covers the tile replacement, ridge line pointing and waterproofing. 2. The sum total of these 5 payments is $380 + $303.50 + $1522 = $2205.50. 3. A compensation claim for work completed by Todd's Plumbing on 14 February 2017, cannot be successful as no receipt or other reliable evidence has been provided. A claim for $30.10 based on a Bunnings receipt dated 15 February 2017 is not payable as the receipt is illegible. 4. $911.50 (75%) of the $1214 B Dalton Roofing invoice/ receipt of 19 July 2017 is not payable as the primary works itemised are gutter cleaning and gutter guard replacement, which are not payable, as a consequence of the tree dispute principle in Barker. For the same reason, the cost of works by Graham Hodgkinson Electrician on 14 March 2017 or Todd's Plumbing on 15 March 2017 do not cover damage caused by the trees, but damage resulting from a fierce storm, inadequate property maintenance, and perhaps influenced by the roof design with internal valleys. Again, this issue is addressed by the tree dispute principle in Barker. In any case, for the alleged works by Todd's Plumbing on 15 March 2017, no receipt or other reliable evidence has been provided. Fence damage 1. The applicants' proposed order 2 seeks that; "the respondent shall engage a contractor, with suitable qualifications and insurance, to rectify damage caused to common boundary fence by the trees". After Tree 8 is removed from its location straddling the common boundary, professional fencers shall be required to reinstate the fence, and this shall be ordered, at the respondent's expense. Other than near Tree 8, I was not persuaded by Mr Emerson's claims that the trees were damaging the fence. Allowing for normal wear and tear over time, I am, therefore, not satisfied that the respondent should be responsible for works on the remainder of the fence, as it remains functional and reasonably straight. Costs 1. The applicants sought compensation for costs incurred making their application, but Commissioners of the Court do not have power to order costs. If the applicants seek such an order, they must file a Notice of Motion for costs to be heard by the Registrar or a Judge of the Court. Discretionary matters – s 12 1. In making an order, the Court considers relevant matters in s 12 of the Trees Act. * The trees are distributed fairly evenly along the eastern side of the respondent's yard's and are all within 8 metres of the common side boundary (s 12(a)). * Where pruning is ordered for Angophora, Tree 7, only dead and clearly broken branches shall be removed. It shall be undertaken by AQF level 3 qualified arborists, and all works shall comply with AS4373:2007 Pruning of amenity trees under s 12(b2) of the Trees Act. * The trees contribute to privacy, to protection from the sun, and from wind, and to the amenity of both the respondent's property and the public (subss 12(b3)(f)). * Being examples of species endemic to the region, the trees' flowers and fruit, trunks and branches could be expected to provide food and or shelter for local fauna, and therefore it is likely that they make a significant contribution to local biodiversity (s 12(d)). * The trees are likely to be providing benefit to soil stability, and the absorption of water (s 12(g)). * Section 12(i) considers 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. * That 'the tree was there first' is considered under s 12 (i), and the tree dispute principle in Black provides guidance for cost apportionment. Conclusion 1. Based on all evidence adduced, I have reached the following conclusions: 2. These trees, 7 of which are endemic to the region, provide contributions to local biodiversity, to the respondent's tenant, and to public amenity. These factors, according to s 12 of the Trees Act, must be considered with respect to damage which the trees have caused, are causing or may cause in the near future, or risk of injury, before final orders are made. 3. Having considered the discretionary elements in s 12 of the Trees Act, Trees 1, 3, 5, 6 and 8 shall be removed. Risk associated with Angophora Tree 7 can be mitigated by dead-wooding and selective pruning of damaged branches over the applicants' property, while two White Mahogany's (Trees 2 and 4) appear to be reasonably healthy and structurally sound, and sufficiently clear of the applicants' property to be retained, without current intervention. 4. Though the applicants did not provide reliable evidence to support their concerns regarding bushfire threats, the removal of these 5 trees will incidentally reduce fire risk. 5. Orders will be made for compensation for past sewer and roof repairs, where appropriate itemised receipts or other reliable evidence has been supplied by the applicants. 6. The issue of leaves, flowers, fruit, seeds or small elements of deadwood falling onto roofs, gutters, and other outdoor surfaces is addressed and resolved with the guidance of Robson and Barker. The extent of refuse here is not extraordinary or unreasonable in terms of the expectation of reasonable maintenance established in Barker and exercised consistently in many cases brought under the Trees Act. As a consequence, no orders can arise for compensation for the cost of this 'reasonable maintenance', nor for the cost of works that may have arisen indirectly. 7. Orders will also be made for repairs of existing sewer pipe damage, and both parties shall have the opportunity to procure up to two quotes for the works, from licenced plumbers, with all appropriate insurances. 8. The basis for cost apportionment shall be the cheapest quote from said plumbers, regardless of whether the applicants employ a more expensive plumber to undertake the works. Should the respondent fail to supply any quotations for the works, the price of the cheaper of the quotes procured by the applicants shall be the basis for cost apportionment between the parties. 9. Given that at least 4 of the trees were likely in situ before either parties' land was developed, the tree dispute principle in Black applies, so that the costs of sewer pipe repairs and compensation shall be apportioned between the parties. 10. The respondent shall pay the full cost of tree removals, stump grinding and fence repairs, while compensation for the cost of substantiated past sewer pipe and roof repairs shall be discounted by 15%. The calculation for this is $2205.50 (from [54]) x 85% = $1874.68 The applicants shall also be responsible to pay 15% of the cost of pending sewer pipe repairs, such that the respondent shall compensate them for 85% of this cost, after the applicants pay the plumber. 11. This discount of 15% is relatively low, but I consider it appropriate in light of the respondent's ongoing lack of consideration for his neighbours in relation to trees on his property. Orders 1. The Orders of the Court are: 1. Within 45 days of the date of these orders, the respondent shall pay the applicants $1874.68 by E.F.T. or Bank Cheque, as compensation for past plumbing damage. 2. Within 45 days of the date of these orders, each party shall procure and exchange up to two quotations from licenced plumbers with all appropriate insurances, for works based on the 'Description of works' in Section 2, page 2 of Quote 212255 from The Plumbing and Electrical doctor, dated 5/7/2021 (and attached to the application). The apportionment of the cost for these works shall be based on the cheapest of these quotations, provided the chosen contractor satisfies the licencing and insurance requirements of the said order. 3. Within 60 days of the date of these orders, the respondent, at his expense, shall employ AQF level 3 arborists, with all appropriate insurances, to remove Trees 1, 3, 5, 6 and 8, and grind their stumps to at least 200mm below natural ground level. For Trees 3 and 5, the grinding shall reach at least 300mm below natural ground level and include separation from the trunk of all lateral roots spreading on the eastern side of each of their respective trunks to a depth of at least 300mm below natural ground level. 4. Within 60 days of the date of these orders, the respondent, at his expense, shall employ AQF level 3 arborists, with all appropriate insurances, to prune Angophora, Tree 7, to remove all dead wood over 20mm diameter at the branch collar and branches which are clearly damaged or broken. These works shall comply with AS4373:2007 Pruning of amenity trees. No orders shall be made for Trees 2 and 4. 5. Within 75 days of the date of these orders, the respondent, at his expense, shall employ a licenced fencer or landscaper, with all appropriate insurances, to repair and realign the section of the common boundary fence which was damaged by Tree 8. 6. Within 90 days of the date of these orders, the applicants, at their expense, shall employ one of the licenced plumbers to repair damage to their sewer pipes according to the 'Description of works' in Section 2, page 2 of Quote 212255 from The Plumbing and Electrical doctor, dated 5/7/2021. 7. Within 7 days of the completion of the works in Order 6, the applicants shall provide the respondent with a copy of an itemised paid invoice for the plumbing works. 8. Within 7 days after receipt of the paid invoice in Order 7, the respondent shall reimburse the applicants by E.F.T. or Bank Cheque, for a quantum of 85% of the cheapest of the acceptable quotations from licenced, insured plumbers, regardless of whether the applicants chose to proceed on the basis of a more expensive quotation. If the respondent failed to provide the applicants with any said quotations within the designated 45-day period of order (2), the quantum payable by the respondent shall be 85% of the cheapest of the acceptable quotations procured by the applicants. 9. Where access is required to complete the tree or fencing works, or for the purpose of gaining quotations, the applicants shall provide access to the respondent, or contractors employed by the respondent, who have all appropriate insurances, upon receipt of no less than 72 hours written notice of date and approximate time of works. 10. All tree works shall comply with Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016. 11. All works shall be completed during normal work hours. …………………………. J Douglas Acting Commissioner of the Court ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 September 2022