Land and Environment Court New South Wales Medium Neutral Citation: Dai v Li [2024] NSWLEC 1412 Hearing dates: 10 April 2024 Date of orders: 22 July 2024 Decision date: 22 July 2024 Jurisdiction: Class 2 Before: Douglas AC Decision: The Court orders that: 1) The respondents shall engage and pay experienced Australian Qualification Framework (AQF) level 3 arborists, with all appropriate insurances (the arborists), to selectively prune 3 live branches, as follows: a) The two largest branches growing towards and over the applicant's land, one of which is approximately 225mm diameter at the branch collar and the second, which is approximately 170mm diameter at the branch collar. b) When facing the tree from the respondents' land, the branch growing from left to right across the middle of the tree with a diameter at the branch collar of approximately 100-120mm. 2) The works in Order 1 shall be completed within 60 days of the date of these orders. 3) Within 14 days of completion of the works in Order 1, the respondents shall email the applicant a paid copy of the arborist's invoice. Within 7 days of receipt of such paid copy of the arborist's invoice, the applicant shall reimburse the respondents 30% of the total quantum of the said invoice by Electronic Funds Transfer (EFT). 4) In 2027 and in every third subsequent year, during the month that the works in Order 1 were completed, the respondents shall engage and pay arborists who meet the requirements of Order 1, to selectively prune epicormic regrowth on the tree's western side by removing weak low lateral branches growing over the applicant's dwelling while retaining branches growing vertically or along the common boundary. 5) Within 14 days of completion of each occurrence of works in Order 4, the respondents shall email the applicant a paid copy of the arborist's invoice. Within 7 days of receipt of such paid copy of the arborist's invoice, the applicant shall reimburse the respondents 30% of the total of the said invoice by EFT. 6) All pruning shall comply with AS4373:2007, Pruning of amenity trees, and the Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016 and shall be completed during reasonable daytime working hours. 7) The applicant shall provide all reasonable access to his property for undertaking each of the ordered pruning works upon receipt of at least 72 hours' notice from the respondents by email, advising the date and approximate start time. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – overhanging tree – damage caused – apprehension of further damage and injury – leaves falling onto dwelling roof and clogging gutters Legislation Cited: Environmental Planning and Assessment Act 1979 Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 9, 10, 12 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Black v Johnson (No 2) [2007] NSWLEC 513 Gardiner v Bisley [2021] NSWLEC 1176 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Texts Cited: Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016 Standards Australia, AS4373-2007: Pruning of amenity trees Category: Principal judgment Parties: Zi Ai Dai (Applicant) Ivan Li (First Respondent) Cecily Lau (Second Respondent) Representation: Z Dai (Self-represented) (Applicant) I Li (Self-represented) (First Respondent) C Lau (Self-represented) (Second Respondent) File Number(s): 2024/47806 Publication restriction: Nil Judgment Background 1. COMMISSIONER: Zi Ai Dai, the applicant, shares a boundary with Ivan Li and Cecily Lau, the respondents, between their properties in North Parramatta. Part of the applicant's long eastern side boundary is the respondents' rear western boundary. In or around 2014, Mr Dai undertook demolition and construction of a new dwelling parallel with and immediately adjacent to the common boundary, while the respondents occupied their property in September 2020. 2. One mid-sized Jacaranda tree (the tree) is growing in close proximity to the common boundary at the rear of the respondents' property, with a portion of its canopy overhanging the applicant's dwelling. The respondents' north side neighbour had a similar sized Jacaranda tree close to their common boundary with the applicant. Both trees were mature and had been growing in situ for many years prior to both parties' occupation. 3. Mr Dai contended that a live branch broke from the tree on 28 April 2023 which damaged his roof tiles and caused water ingress. He considered the broken branch a life-threatening risk, had it fallen vertically and penetrated his roof. Mr Dai consequently requested the respondents remove the tree but claimed Mr Li and Ms Lau only pruned small branches, which Mr Dai considered inadequate. 4. On 6 February 2024, another branch fell onto the applicant's roof which allegedly caused irrigation system damage and "a discernible water leak within the ceiling space". Further, Mr Dai noted that despite the presence of gutter guard, Jacaranda leaves persistently obstructed his gutter, which caused gutter overflow, a foul odour and discoloration of his recycling water, and the requirement for regular gutter clearing. 5. The respondents value the tree for shade, particularly during summer afternoons, its contribution to privacy from oversight from the applicant's first floor windows, to the scenic value of their land, to biodiversity, and to public amenity when in flower. Mr Li claimed the applicant provided no arborist report or other evidence to substantiate allegations that the tree was structurally unsound and senescent. On 3 June 2023, the respondents contracted arborists to prune the tree, in accordance with a pruning application determination from City of Parramatta Council (Council) of 16 May 2023. Mr Li claimed the qualified arborists who pruned the tree and the Council tree inspector both considered the tree to be sound. Nonetheless, neither the pruning nor the arborist advice satisfied Mr Dai. 6. Consequently, based on the recurrence of damage from branch failure and inherent risk to persons, Mr Dai made an application, pursuant to s 7 of Pt 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) proposing the Court make orders for the removal of the Jacaranda tree from the respondents' neighbouring property. The onsite hearing 1. Both parties were self-represented at the onsite hearing. As is customary, the hearing commenced with an inspection of the tree from both properties and considered the damage on the applicant's dwelling. Mr Dai identified locations where roof tiles had been damaged and where debris compromised cleanliness of his recycling water. 2. The applicant's property faced a sloping street and had been excavated by more than 1 metre (m) at the common boundary to provide level ground for the applicant's new dwelling. The tree was about 10 metres (m) tall, with a canopy spread of about 8 m. Wounds from pruning that reduced the extent of the tree's canopy encroachment were conspicuous on the tree's branches. Jurisdictional requirements 1. With respect to s 7 of the 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. The application meets these requirements. 2. The applicant provided evidence of satisfaction of s 8 of the Act, requiring notice of the application for orders to be given to owners of affected land, and to Council. Both parties attended an initial directions hearing on 19 March 2024. 3. Section 9(1) of the Act details the Court's broad jurisdiction to make 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." 4. Pursuant to s 10, s 10(1)(a) of the Act requires the applicant to make a reasonable effort to reach agreement with the owner of the land on which the tree is situated. The applicant provided evidence of multiple requests to Mr Li over a sustained period for removal of the tree, which was sufficient to engage s 10(1)(a) of the Act. 5. The next major test that is posed, by s 10(2) of the Act, is that the Court must be 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 to dwelling roof 1. A photograph on page 4 of the Tree Dispute Claim Details (Exhibit B) from 28 April 2023 displayed a broken branch on the applicant's dwelling roof adjacent to an area of about 5 shattered tiles, and exposed internal sarking. I am satisfied the branch from the tree caused the damage, such that s 10(2)(a) of the Act is engaged. 2. Mr Dai described the branch as "over 20cm in diameter and exceeding 3 meters in length", while Mr Li noted the branch "chipped a roof tile". Considering that the average size of a standard roof tiles is about 42 cm x 31 cm, based on the applicant's photograph, the branch diameter appeared closer to 9-10 cm, but the roof damage was certainly more significant than a chipped roof tile. 3. In his Tree Dispute Application (Exhibit A), Mr Dai noted the broken branch from 6 February 2024 had a diameter of "approximately 15cm", but his photograph on page 7 of Exhibit B showed the branch appeared to have a much smaller diameter, more like 6 cm. Considering the photograph on page 6 of Exhibit B, which showed this branch had primarily landed on the metal panel common boundary fence without causing damage, and appeared to merely glance the corner of the applicant's dwelling, in the absence of specific evidence of damage from the applicant, this second branch breakage appeared to be of little consequence. Damage to recycled water system and gutter blockage 1. Mr Dai submitted that "leaves from the Jacaranda tree persistently obstruct my gutter despite the installation of gutter guard and leaf eaters. This recurrent blockage, occurring 5 to 6 times annually, has rendered my recycling water unusable due to foul odor (sic) and discoloration, in addition to causing gutter overflow". 2. As many applications include claims of damage, annoyance, and excessive maintenance resulting from neighbours' tree debris, a Tree Dispute Principle was established in Barker v Kryiakides [2007] NSWLEC 292 (Barker) to address this issue. At [20], Barker states: "For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis." "The dropping of leaves, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering the removal of or intervention with an urban tree". 1. The issue is also addressed in Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152; at [171], where Preston CJ says: "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." 1. Mr Li contended that Mr Dai should be responsible for consequences arising from his decision to position his new dwelling directly under the overhanging canopy of the respondents' mature tree. 2. A similar situation is considered in Gardiner v Bisley [2021] NSWLEC 1176, where the Court found, at [71]: "Additionally, regardless of whether tree debris drops into the applicant's pool, resulting in more cleaning and addition of chemical or other ameliorants to stabilise water requirements than may be the case in their absence, upon purchasing the property about five years ago, it should have been obvious to the applicant that the tree was large and well established, that its canopy extended over the pool, and that such additional maintenance would be required. In such a scenario, it is unreasonable to expect that the tree be removed or severely pruned, to eliminate or reduce this debris, when the tree long predated the pool's installation." 1. In the context of this site, where the applicant's dwelling location choices have directly created an additional maintenance burden, none of the applicant's submissions with respect to leaves falling onto his roof, clogged gutters or downpipes, or impact on the colour or odour of recycled water, invokes the Act's jurisdiction. Rather, these elements fall entirely under the expectation of reasonable maintenance arising from the Tree Dispute Principle in Barker. Risk of injury to persons 1. The applicant claimed the tree presented a risk of injury to persons. With respect to the initial 2023 branch breakage, Mr Dai said, "The gravity of the situation is emphasised by the fact that had the branch fallen vertically, it would have penetrated the roof space directly above a room previously occupied by my infant, posing a life-threatening risk." 2. While I readily acknowledge that the falling branches may have alarmed Mr Dai and his family, I am satisfied that risk of injury as a consequence of the tree is low. When assessing risk arising from trees, protection provided by structures must be considered. Though the applicant anticipated a branch falling vertically, butt first, and penetrating through the roof, the roof structure, and the ceiling, into the room below, based on the arboricultural expertise I bring to the Court, such a scenario is improbable. As the tree is of only moderate height and falling branches would thus impact at relatively low velocity, the situation that apparently occurred, where branches impacted across the roof and caused minor to moderate damage, is much more likely. 3. Further, though the parties differ as to the extent of pruning of overhanging branches undertaken after the branch breakage of April 2023, having assessed the tree from the applicant's land and photographs in Exhibit B, I am satisfied that the pruning works commissioned by the respondents markedly reduced the extent of branches overhanging Mr Dai's roof and mitigated risk that may result from additional branch breakage. 4. The tree appeared to be fairly healthy and stable in the ground. There were no obvious signs around the tree's base or on its trunk or branches indicative of a structurally unsound tree. Nor is the tree senescent or approaching the end of its lifespan. Rather, it is at mid-maturity. 5. Considering these adduced factors, the risk of injury to persons presented by the tree is low and insufficient to engage s 10(2)(b) of the Act. Therefore, this element of the applicant's claim is dismissed. 6. As the jurisdictional test in s 10(2) is satisfied by past roof damage, s 9 of the Act empowers the Court to make any order it sees fit to remedy, restrain or prevent damage to property or injury to persons. If orders are to be made, the Court must consider relevant discretionary matters at s 12 of the Act. Discretionary matters – s 12 1. The tree is located in the respondents' property close to the common boundary (s 12(a)). 2. With respect to removal or pruning, the tree is protected under Council's tree management policies, the jurisdiction of which arises from the Environmental Planning and Assessment Act 1979 (s 12(b)). 3. Mr Li's Council pruning determination of 16 May 2023 specified permission "for General Crown Maintenance of 10-15% of the tree's crown foliage area that overhangs the rear boundary fence/ neighbour's roof". Jacaranda trees are prone to produce epicormic (sucker) growth around past pruning wounds and on branches exposed to high light levels. Nonetheless, it is a hardy species which usually tolerates mild to moderate pruning. Therefore, in contemplating orders, the Court must consider the requirement for ongoing pruning to manage likely epicormic regrowth (s 12(b2)). 4. The respondents assigned high significance to the tree's contribution to summer afternoon shade, to privacy, to the natural landscape, and the scenic value of their land (subss 12(b3) and 12(e)). 5. Though an exotic species, the tree's flowers, trunk, and branches may be expected to provide food and shelter for fauna and thus contribute to the local ecosystem and biodiversity. Mr Li wrote that Cockatoos and Kookaburras were "often seen roosting in the top canopies" (s 12(d)). 6. In Robson, his Honour provided commentary on environmental considerations under s 12 of the Act; at [203]: "203 The matters concerning the values of the tree and its environmental contribution are notable additions to the matters recommended by the Law Reform Commission in its report. The Law Reform Commission report was relatively quiet about environmental factors, in contrast to the earlier discussion paper which had emphasised the environmental values of trees. The legislature, however, took a different view and required the Court to consider environmental factors. This was a point specifically made in the second reading speech: "The provisions that require the Court to consider environmental factors prior to making an order are in recognition of the importance of urban trees as an environmental asset. Urban trees play a proven environmental role in every urban society. They provide energy savings through lower cooling costs, reduce stormwater run-off, help reduce salinity and provide aesthetic and social benefits associated with being in proximity to nature. The bill therefore recognises the environmental contribution of urban trees as a factor that the court must take into consideration in determining applications."" 1. The tree contributes to public amenity, especially when in flower (s 12(f)). 2. If the applicant alleges that the tree has caused damage to his property, s 12(h)(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". By locating his dwelling directly below the respondents' mature established tree, Mr Dai has contributed to damage to his dwelling. 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. Conclusion 1. The applicant's roof damage due to the branch failure from the tree on 28 April 2023 engaged s 10(2) of the Act, and likely increased wind exposure to residual overhanging branches justifies intervention with the tree. As the likelihood of further roof damage has been mitigated by the respondents' pruning and may be reduced to a reasonable level by further selective pruning, and given the tree's significant environmental contributions which the Court is required to consider, removal of the tree would be a disproportionate and inappropriate remedy. 2. Upon completion of the ordered works, maintenance required to clear leaves, flowers and small sticks from the applicant's roof, gutters, downpipes and recycled water system would be reasonable maintenance in keeping with the Tree Dispute Principle established in Barker. 3. In accordance with the Tree Dispute Principle published in Black, the costs of initial and ongoing pruning works ordered by the Court shall be apportioned between the parties. Orders 1. The Court orders that: 1. The respondents shall engage and pay experienced Australian Qualification Framework (AQF) level 3 arborists, with all appropriate insurances (the arborists), to selectively prune 3 live branches, as follows: 1. The two largest branches growing towards and over the applicant's land, one of which is approximately 225mm diameter at the branch collar, and the second which is approximately 170mm diameter at the branch collar. 2. When facing the tree from the respondents' land, the branch growing from left to right across the middle of the tree with a diameter at the branch collar of approximately 100-120mm. 1. The works in Order 1 shall be completed within 60 days of the date of these orders. 2. Within 14 days of completion of the works in Order 1, the respondents shall email the applicant a paid copy of the arborist's invoice. Within 7 days of receipt of such paid copy of the arborist's invoice, the applicant shall reimburse the respondents 30% of the total quantum of the said invoice by Electronic Funds Transfer (EFT). 3. In 2027 and in every third subsequent year, during the month that the works in Order 1 were completed, the respondents shall engage and pay arborists who meet the requirements of Order 1, to selectively prune epicormic regrowth on the tree's western side by removing weak low lateral branches growing over the applicant's dwelling while retaining branches growing vertically or along the common boundary. 4. Within 14 days of completion of each occurrence of works in Order 4, the respondents shall email the applicant a paid copy of the arborist's invoice. Within 7 days of receipt of such paid copy of the arborist's invoice, the applicant shall reimburse the respondents 30% of the total of the said invoice by EFT. 5. All pruning shall comply with AS4373:2007, Pruning of amenity trees, and the Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016 and shall be completed during reasonable daytime working hours. 6. The applicant shall provide all reasonable access to his property for undertaking each of the ordered pruning works upon receipt of at least 72 hours' notice from the respondents by email, advising the date and approximate start time. J Douglas Acting Commissioner of the Court ********** Amendments 23 July 2024 - Incorrect names for one of the Parties - change to correct mistake. 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: 23 July 2024