Land and Environment Court New South Wales Medium Neutral Citation: Youman v D'Accione [2024] NSWLEC 1614 Hearing dates: 4 July 2024 Date of orders: 01 October 2024 Decision date: 01 October 2024 Jurisdiction: Class 1 Before: Douglas AC Decision: The Court orders that: (1) The respondent, initially at her expense, shall engage Australian Qualification Framework (AQF) level 3 arborists (the arborists) with all appropriate insurances to remove the tree to near ground level and poison the stump (the works). The works shall be completed by 31 March 2025. Should the tree reshoot, it shall be re-poisoned until it is dead. (2) Within 60 days of the date of these orders, the applicants and respondent shall procure and exchange one quotation for the works from contractors who satisfy the requirements of Order 1. The cheaper quotation shall be the basis for the applicants' contribution. (3) Within 7 days of completion of the works, the respondent shall provide the applicants with a copy of a paid invoice for the works. Within 7 days of receipt of a paid invoice for the works, the applicants shall pay the respondent by Electronic Funds Transfer (EFT) or Bank Cheque, 33% of the cheaper quotation for the works, regardless of whether the respondent proceeded with the more expensive quotation. (4) The works shall comply with Safe Work Australia, Guide To Managing Risks of Tree Trimming and Removal work, 2016. (5) The applicant shall provide all required access for undertaking the works, subject to 72 hours' notice from the respondent, by email. (6) All works shall be completed during reasonable, daytime working hours. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – apprehension of damage and injury – damage to concrete strip and terracotta pipes proven – leaves, small sticks, and tree seedlings in gutters – reasonable maintenance Legislation Cited: Trees (Disputes Between Neighbours) Act 2006, ss 7, 8, 9, 10, 12, 13, Pt 2 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285 Joaquim v Adamson [2009] NSWLEC 1312 McPherson v Lake [2017] NSWLEC 1081 Osborne v Hook [2008] NSWLEC 1231 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Yang v Scerri [2007] NSWLEC 592 Texts Cited: Safe Work Australia, Guide To Managing Risks of Tree Trimming and Removal Work, 2016 Standards Australia, AS 4373-2007 Pruning of amenity trees, 2007 Category: Principal judgment Parties: John Leslie Youman (First Applicant) Rose Mary Youman (Second Applicant) Madalena Serena D'Accione (Respondent) Representation: J Youman (Self-represented) (First Applicant) R Youman (Self-represented) (Second Applicant) M D'Accione (Self-represented) (Respondent) File Number(s): 2024/157404 Publication restriction: Nil Judgment 1. COMMISSIONER: This is an application, pursuant to s 7 of Pt 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) by John Leslie Youman and Rose Mary Youman, proposing the Court make orders for the removal of an Acer negundo 'Variegatum' (Variegated Box Elder) (the tree) from a neighbouring property. Background 1. Mr and Mrs Youman, the applicants, have owned and occupied a property in Eleebana for 38 years. Madalena Serena D'Accione, the respondent, purchased her property on adjoining land east of the applicants in mid-2014. The sides of both parties' dwellings are parallel with a common side boundary, which extends from just west of south at the street to just east of north at the common rear corner. 2. The tree is located in the respondent's front yard about 1.2 metres (m) from the common boundary and 3-4 m from the closest front corner of the applicants' dwelling. Ms D'Accione valued the tree highly, particularly for the privacy and shade it provides. Though the tree was currently relatively small, it is mature and has been growing for many years. In the past, the tree appeared to have attained a height around 7-9 m. 3. In February 2022, Mr and Mrs Youman initially advised Ms D'Accione of their concerns after discovering roots in a garden bed at the front of their dwelling which they attributed to the tree. Whilst meeting to inspect exposed roots, the applicants requested Ms D'Accione prune the tree's branches growing into or near their domestic electricity cable and over their dwelling's roof. 4. In 'Contentions' in her 'Response to Tree Dispute Application' of 25 June 2024 (Exhibit 1), Ms D'Accione said she promptly contacted an arborist from Agility Professional Tree Services (Agility arborist), who undertook a tree assessment on 9 March 2022. The arborist's verbal opinion was, "that the tree was extremely unlikely to be causing any damage to property and did not require removal" and "that a root barrier system was an option should the Applicants disagree with him". The respondent relayed the arborist opinion to Mr and Mrs Youman, and her intention to retain the tree. 5. On 17 March 2022, the tree was subjected to a "significant trim" but regrettably, the trim comprised a harsh lopping with considerable consequences. 6. In mid-March 2022, Mr Youman excavated and traced roots growing under his front lawn from the common boundary to the front garden bed and found that the tree was "the culprit". Photographs in the applicants' Tree Dispute Claim Details (Exhibit B) displayed a crack in a concrete edging strip along the boundary above a root which crossed the boundary under the concrete. By SMS, Mr Youman told Ms D'Accione about the boundary root and complained about gutters being filled with the tree's leaves, other debris, and many young Box Elder seedlings. Mr Youman noted that he usually had to clean the gutters annually to "remove seedlings and debris and minimise damage". 7. Subsequently, Mr and Mrs Youman consulted Precision Building and received a quotation for waterproofing and drainage works around their dwelling. Works were undertaken in mid-2022 and a final report was provided on 16 August 2022. In December 2022, the applicants procured an arborist report from Hunter Horticultural Services. 8. On 16 March 2023, Mr and Mrs Youman sent a letter titled, "COMPLAINT LETTER ABOUT TREE", which Ms D'Accione included as Attachment F on page 21 of Exhibit 1. The letter advised that the respondent may be "responsible for costs we have incurred as expenses related to damage caused by your tree". It listed the applicants' aforementioned concerns about the tree's roots in the front garden, sewer pipes blocked by roots, seedlings and leaves causing blockages in gutters and minor flooding, regular twig and leaf fall on the front lawn causing nuisance, and excessive maintenance required to clear gutters and tidy ground surfaces. Additionally, the Youman's noted danger and fear arising from branches potentially falling from the tree "towering over our house" and claimed that "literature indicates" that a safe distance for the tree from the dwelling was about 21 m rather than the current 3-4 m gap. 9. The letter detailed attempts by the Youman's to gain assistance from Central Coast Council (Council), and a Community Justice Centre (CJC), and noted a barrier sufficient to exclude the tree's roots would cost more than $6000.00, which was "not at all viable". The letter referred to an injury Mrs Youman suffered by tripping on an excavated tree root and a doctor's opinion that the tree should be removed for safety reasons. 10. A quotation for $10,800.00 from Precision Building was claimed to cover, "appropriate works to identify the problem caused on our property by your Tree, involving removal of concrete, tree roots etc, excavation, inspection, waterproofing, provide drainage, concreting and drainage". A post works report from Precision Building (Precision report) suggested it would be prudent for Ms D'Accione to remove the tree or prevent continued root growth towards the Youmans' house and stormwater pipes. 11. The report from Hunter Horticultural Services (Hunter report) by an arborist with "AQF Level 5 Qualification" was said to include, "an in-depth assessment of your tree, a look at possibilities, with a final recommendation that your tree be removed within 6 months". 12. Mr and Mrs Youman attached the arborist and builder's reports and put Ms D'Accione on notice that consideration would be given to legal action to recover $10,800 for building works, $440 for the arborist report, $78 for medical costs, plus unspecified legal and other costs, if the tree was not removed within 28 days. 13. In her reply of 12 April 2023, Ms D'Accione noted the tree had been pruned as requested, and reiterated the Agility arborist's opinion that the tree did not require removal as it was unlikely to damage either property. Ms D'Accione referenced a text to Mrs Youman from 17 March 2022, which requested Mr Youman cease applying Roundup herbicide around the tree, which Mrs Youman had denied. The respondent alleged the poisoning had recurred, however, and included photographs from February 2022 and July 2022 which substantiated her claim. 14. Ms D'Accione explained her decision to decline the CJC mediation. She denied the tree was the source of seedlings in gutters because Acer negundo 'Variegatum' are sterile. The respondent contended branches did not tower over the Youman's dwelling, nor encroach over the boundary and denied having been informed about the applicant's fears. Ms D'Accione included a quotation of $2035.00 from the Agility arborist for installation of 12 m of root barrier on the Youman's land. 15. The respondent denied liability for Mrs Youman's leg injury, particularly because the area of root excavation where the injury occurred remained open and hazardous from before 2 March 2022 until 25 June 2022, when Mr Youman severed the exposed root and refilled the excavated area. 16. Ms D'Accione claimed the Precision report did not make any finding of structural damage by roots, but instead referred to roots growing "towards" dwelling foundations and sub-surface stormwater pipes, and that the drainage works prevented potential damage to structures. Ms D'Accione said the opinion and conclusion of the Hunter report that the tree had caused structural damage, was based on evidence supplied by the applicants rather than original observations, particularly given that Precision Building did not report any damage resulting from the tree. 17. Ms D'Accione included a series of historical Google Street View images at Attachment C of Exhibit 1, which showed progressive removal of about five trees from the Youman's front yard between 2008 and October 2020, and the canopy of the Box Elder consistently maintained within the respondent's land. 18. In her conclusion, Ms D'Accione reiterated the privacy and shading the tree provided, and claimed the applicants had submitted no evidence of the tree having caused, causing, or being likely to cause near future damage. On this basis, Ms D'Accione denied liability for costs outlined in the applicants' letter, and confirmed that, "I do not intend to remove the tree". Consequently, the application was lodged with the Court. The onsite hearing 1. Both parties were self-represented at the hearing. A low timber fence along the common boundary allowed a clear view of the tree in site context. After assessing the tree, the respondent's drainage works were inspected, and Mr Youman indicated sewer and stormwater outlets and sumps where root incursion had allegedly blocked pipes. Mr Youman contended that a crack initiating in a concrete path at the rear of his house was caused by roots from the tree which had grown under the dwelling. 2. The tree was currently about 4 - 5 m tall. Upon inspecting the site from the applicants' property, Mr Youman highlighted branches overhanging the boundary and areas where leaves and other debris fell from the tree and indicated Box Elder seedlings in roof gutters. 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. Section 8(1) of the Trees Act requires that an applicant must give at least 21 days' notice of the lodging of the application and the terms of any order sought to: (a) the owner of the land on which the tree is situated, (b) any relevant authority that would, in accordance with s 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. 3. Mrs Youman provided a signed affidavit and photographs as evidence of service of the application documents on Ms D'Accione, in satisfaction of s 8(1)(a). Though no evidence of document service on Council was found in the case file, intervention with the tree was exempt from Council permission due to its proximity to the applicants' dwelling. As there was thus no reason for Council to have an interest in the proceedings, the circumstances were appropriate for the Court to apply powers under s 8(3) of the Trees Act to waive the requirement to give notice to any relevant authority at s 8(1)(b). As there was no other person likely to be affected by the order (at; s 8(1)(c)), s 8(1) of the Trees Act is satisfied. 4. Section 9 of the Trees Act provides the Court with a wide range of powers to remedy, restrain, or prevent damage and/or injury to a person caused by a tree or trees on adjoining land. Important tests at Section 10 1. Pursuant to s 10(1) of the Trees Act, the Court is obliged to consider the following matters: (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. 1. Ms D'Accione was critical of Mr and Mrs Youman's "excessive communication" and declined to engage in mediation because the applicants' sole mediation goal was tree removal. The reasonable effort to reach agreement required of applicants under the Trees Act is not as demanding as many other jurisdictions. The Trees Act does not prescribe applicants' conduct, nor their method of negotiating. There is no requirement for the applicant to necessarily seek a compromise. 2. Mr and Mrs Youman provided evidence of multiple written requests for removal of the tree for over a year with a final letter of demand to the respondent on 16 March 2023. The applicants attempted to organise mediation under the auspices of the Community Justice Network. 3. While the applicants' mediation goal of "removal of tree" influenced Ms D'Accione to exercise her right to decline mediation, this does not compromise the effort exerted by the applicants to organise such a forum. Further, the applicants' reasonable effort can be made after making the application at any time up until the Court determines the application. 4. Consequently, I am satisfied that the applicants have made a reasonable effort to reach agreement with the owner of the land on which the trees are situated, such that s 10(1)(a) of the Trees Act is engaged. 5. Section 10(1)(b) is also engaged as the applicants satisfied the requirements of s 8 of the Trees Act. 6. 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. 1. If the jurisdictional test in s 10(2) is satisfied, s 9 of the Trees Act empowers the Court to make any order it sees fit to remedy, restrain, or prevent damage to property or injury to persons. If orders are to be made, the Court must consider a number of discretionary matters in s 12 of the Trees Act. Findings 1. I accept the respondent's contention that the Precision report did not identify damage caused by the tree, only potential damage that was prevented. I also agree that the scope of works for the Precision Building quotation covered waterproofing, drainage, concreting, installation of two sumps, and connection to rear stormwater, but made no reference to "appropriate works to identify the problem caused on our property by your Tree", as claimed by Mr and Mrs Youman. 2. Paragraph 4 of the Precision report noted, "[t]he work that we have completed within our scope of works is designed to provide some protection by installing a protective membrane to your sub-surface brickwork and a trenched agg pipe system to divert the surface water away from the front right side load bearing wall and foundations." On page 16 of Exhibit B, the applicants said, "[a]s part of the excavation works, it was found necessary to remove the original rainwater clay pipes" and replace the joint at the lower end of the downpipe into the stormwater pipe. 3. PVC pipes have been in common use for sewerage and stormwater since the 1970's and terracotta pipes are now unusual. Even if the pipes had remained intact up to now, rubber seals and mortar at terracotta pipe junctions were likely to have deteriorated and cracked over time, and leaked. This is a likely source of moisture accumulation around the applicants' dwelling. No tree roots were reported in these pipes. 4. Similarly, I accept Ms D'Accione claim that the opinions and conclusions of the Hunter report, at page 7, that tree roots have "invaded the subject property, causing some damage" was not based on evidence gathered by the Hunter arborist but on hearsay from Mr Youman. Therefore, evidence from the Hunter report is of little value to the Court. 5. The opinion Ms D'Accione received from the Agility arborist, that the tree was unlikely to cause damage was particularly flawed, however, as it was an unreasonable and unsubstantiated conclusion to reach in terms of basic arboricultural knowledge, particularly when made in the absence of any root investigation. Unlike evidence from the Hunter arborist and Precision Building, Ms D'Accione appeared to accept and champion the Agility arborist's opinion without question. 6. This species is known to grow vigorously above and below ground. The tree was long established with a trunk diameter at ground level around 600-700 mm. Notwithstanding past pruning, the tree's canopy diameter had previously reached about 7-9 m. The fact that roots generally extend far beyond a tree's canopy spread is fundamental arboricultural knowledge. As the tree was located about 1.2 m from the common boundary and little over 3 m from the applicants' dwelling, the Agility arborist's unsubstantiated opinion is probably incorrect, and is partisan. Therefore, this opinion is also of little use to the Court. Damage caused by the tree's roots 1. A photograph on page 11 of Exhibit B displayed a fairly horizontal root with a diameter of about 45 mm meeting the base of the applicants' dwelling's front wall at a perpendicular angle. A smaller root of about 12 mm, which likely branched from the larger root, appeared to have grown into the wall via a horizontal mortared junction between two bricks but no wall damage was evident in the photograph or on site. 2. A crack in the concrete edging strip along the boundary was directly above a root where it crossed the boundary. I am satisfied the crack is caused by the tree. Notwithstanding this damage was minor, the Court's decision in Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285 ('Granger') indicates that even relatively minor damage engages the Court's jurisdiction, such that s 10(2)(a) of the Trees Act is engaged. 3. Whether the damage is minor or major is irrelevant in answering the jurisdictional tests in s 10(2), but it can be relevant in determining what orders, if any, should be made. 4. I am also satisfied that the tree's roots entered and obstructed the Youman's terracotta stormwater and/or sewer pipes. The applicants' trees may also have caused root incursion into pipes prior to the last trees removal around October 2020, but they have not done so for almost four years. 5. In any case, Ms D'Accione's tree needs to merely be a cause of damage on the balance of probabilities to engage the jurisdiction. The tree must be a probable cause of damage, but it may be one of many causes. 6. Whilst I acknowledge the respondent's contention that the Youman's pipe damage claim was not substantiated by plumber's invoices or other conclusive evidence, I accept Mr Youman's submission that he usually undertook the pipe and sump clearance himself. Considering evidence adduced from submissions and photographs in Exhibit B, characteristics of the tree and the site, and the absence of proximal likely alternative root sources, I am satisfied s 10(2)(a) of the Trees Act is again engaged. 7. Root growth and pipe incursion was likely facilitated by leakage from deteriorated junctions of the terracotta pipes. Roots do not invade but they do optimise their environment by growing actively where conditions are best and towards areas of relatively greater moisture. Conversely, provided pipes are installed correctly, root entry into PVC pipes is very rare. 8. The terracotta sewer pipe was not replaced, however, and like the stormwater pipe, its junctions would probably be deteriorated, leaking, and thus provide conditions conducive for root growth. Once fine roots enter sewer pipes, intermittent water, air, and nutrients provide ideal conditions for rapid root development. 9. In Yang v Scerri [2007] NSWLEC 592, the near future is defined, as a rule of thumb, to be a period of one year. Due to Mr Youman's extensive root severing and removal along the boundary and in his front yard, I am not satisfied that near future damage is likely, notwithstanding that further sewer pipe root ingress is probable in the medium to long-term. 10. I am not satisfied that cracked concrete at the rear of the dwelling was caused by the roots of the tree as the concrete was far from the tree and the claim was pure conjecture, unsupported by any evidence. Dropping debris 1. The applicants made a claim of damage arising from leaves and small sticks clogging gutters and seedlings growing in gutters but under the Trees Act, such debris is not considered to be damage. In Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152; at [171], Preston CJ says: "[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." 1. As many applications conflate tree debris with damage, the Court has published a Tree Dispute Principle in Barker v Kryiakides [2007] NSWLEC 292 ('Barker'), which, at [20], 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. Consequently, debris dropping from the tree is not deemed to be damage under the Trees Act and the maintenance required to clear leaves, seeds, and small sticks from the roof and gutters and the surrounding ground is considered to be reasonable. 2. Having said this, seedlings observed in the parties' gutters were almost certainly from the respondent's Box Elder. The tree may initially have been a sterile Acer negundo 'Variegatum' but, as often occurs with this species, the tree's growth had reverted over time to the characteristics of the species, and it was now a fertile female tree which was likely to seed prolifically. 3. Though the applicants requested consideration of their advanced age, the Court's flexibility is limited as determinations must be consistent. Annual gutter cleaning noted by Mr Youman does not reflect an excessive maintenance burden and it is usual for people to seek professional help as they age. Consequently, this element of the applicants' claim is refused. Risk of Injury 1. The applicants claimed the tree towered over their house and presented a genuine risk of injury from overhanging branches breaking and falling. 2. According to McPherson v Lake [2017] NSWLEC 1081; at [10], the Court must consider "the risk posed by a tree in the foreseeable future 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". 3. The tree appeared to be of fair-poor health but it appeared stable in the ground. There were no signs around the tree's base, such as soil heaving and lifting or cracks in the soil which may be indicative of problems with stability of anchorage, nor were there broken branches. Though there was extensive fungal decay around the base of an old absent primary trunk, the attachment of live branches appeared strong and stable. The tree contained deadwood, but it posed no risk to the applicants. 4. Ms D'Accione claimed no branches had broken from the tree during her occupation and nor were branch breakage incidents reported by the applicants. No professional risk assessment was provided by the Youman's and the available evidence failed to support a finding that risk of injury to persons is likely. Though it is not unusual for people to become increasingly fearful of trees as they age, given that the tree was currently relatively small and had been pruned well clear of the applicants' land, I am not satisfied that it presents a risk of injury that is any greater than low and acceptable. Even in fierce storms, people rarely go outside, and the structure of the applicants' dwelling would offer ample protection to people within. Therefore, this element of the applicants' claim is also refused. 5. If the jurisdictional test in s 10(2) is satisfied, s 9 of the Trees Act empowers the Court to make any order it sees fit to remedy, restrain or prevent damage to property or injury to persons. 6. Section 10(2)(a) of the Trees Act is satisfied by the cracked boundary concrete and the tree's roots breaching the Youmans' pipes. If orders are to be made, the Court must consider relevant matters in s 12 of the Trees Act, as follows: Discretionary matters – s 12 1. The tree is located in the respondent's property about 1 m from the common side boundary. Based on advice from the Agility arborist, Ms D'Accione claimed a root barrier could not be installed on her land due to stability concerns arising from severing major roots close to the tree due to the proximity of the tree to the boundary. When a respondent's tree is determined to be the cause of damage or injury, it would be unreasonable for the Court to order the installation of a root barrier on the applicants' land except under extraordinary circumstances such as where the applicant agrees. In either case, the expense of the root barrier and its installation would be borne by the respondent and alternative appropriate orders would be required should the applicants not agree. (s 12(a)). 2. The tree is exempt from requiring permission for removal under Council's Tree Management Controls due to the close proximity of the applicants' dwelling. The applicants cited "literature" that ostensibly recommended a 'safe' distance of about 21 m between the tree and a structure rather than the current 3 m. Though the literature source was unreferenced, such distances may be recommended by structural engineers for new tree plantings, but they are not mandated, and are irrelevant for existing trees. Considering the size of average suburban land parcels, the application of such conservative recommended 'safe' distances is unreasonably restrictive on urban tree planting, and detrimental to societal interests (s 12(b)). 3. The pruning undertaken on the tree in March 2022 comprised lopping all five main branches down to a height of about 3-3.5 m. As is its nature, the tree responded by sprouting copious, vertical epicormic (sucker) growth and dense twig growth which congested the centre of the canopy. 4. A section in the Australian Pruning Standard (AS 4373:2007 – Pruning of amenity trees) is dedicated to the negative consequences of lopping and its discouragement. Pruning impacts tree health as removal of leaf cover reduces a tree's capacity to optimise photosynthesis, reducing the tree's potential sugar production which powers all essential functions. The dense epicormic growth which has markedly changed the trees form and pattern of future growth is mainly a stress response to the extent of foliage removal. The exposure of the end grain of branches from lopping also increases the likelihood of branch die-back and entry of pathogens, which I observed on site. Attempted remediation of the tree's form would require regular repeat pruning over many years (s 12(b2)). 5. The trees contribute to privacy, protection from the sun, and to the amenity and scenic value of the respondent's land (subss 12(b3) and 12(e)). 6. Although it is exotic, the tree may provide food and or shelter for fauna, and thus contribute to local ecosystems and biodiversity (s 12(d)). 7. Under s 12 (h), if the applicants allege that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicants' property, (i) considers 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. 8. Ms D'Accione alleged that Mr Youman repeatedly applied herbicide to the tree and during my inspection, I observed chlorotic, shrivelled, distorted growth which, based on the arboricultural expertise I bring to the Court, I was satisfied was distinctly symptomatic of herbicide damage. Photographs within the respondent's letter of 12 April 2023 in reply to the applicants' tree complaint, displayed the death of lawn surrounding the tree. Although, unlike the distorted canopy growth, there may be reasonable possible alternative causes of the lawn damage, I am satisfied that the damage was characteristic of herbicide and the probable cause was herbicide. 9. In Joaquim v Adamson [2009] NSWLEC 1312 ('Joaquim'), in regard to a tree allegedly poisoned by an applicant, at [72]-[73], the Commissioners said: "[72] However, we consider, as we earlier noted, that this independent evidence stands unchallenged by any contradictory expert evidence provided by the applicants. All we have is the bald denials by Mr Joaquim. [73] We accept, on the basis of the holes which we have observed and for which there is no credible alternative explanation coupled with the independent evidence of the horticulturalist and of the arborist retained by the respondents to advise on the health of the tree, that, notwithstanding the denials of Mr Joaquim, this tree has been poisoned. This observation is also consistent with Commissioner Fakes' professional experience and, with the more limited (but modestly extensive) experience of Senior Commissioner Moore in hearing tree dispute cases. We also consider that, given the respondents did not wish this tree to be removed and that Mr and Mrs Joaquim had had an application for its removal refused by the council a very short time prior to the tree's symptoms first being independently examined on the half of the respondents with that examination leading to a poisoning conclusion, it is reasonable for us to conclude, on the balance of probabilities, that despite his denial, this tree was either poisoned by Mr Joaquim or by some other person on his behalf." 1. Considering the context and history of this case, the respondent's evidence, and my observations, I have reached a similar conclusion. 2. Another consideration under s 12(h)(i) is where applicants become aware of damage being caused to their property, and repairs or takes measures with respect to such damage, without providing the tree owner opportunity to assess the damage or be consulted about the method and cost of repairs or damage response. This failure can be taken into account by the Court when considering whether or not to make orders relating to the damage. 3. In summarising elements from Osborne v Hook [2008] NSWLEC 1231 ('Osborne'), Moore SC and Thyer AC determined (in that case, in response to damage to concrete); at [51], that, as a matter of discretion, because of the failure of the applicants to give the respondents adequate notice or opportunity for consultation prior to responding to the damage, "we ought not entertain any claim for damages on this occasion". 4. Similarly, even if the Court decided that the drainage works were in response to damage by the tree, had the Youman's pursued compensation for the cost of the works by Precision Building, without affording the respondents sufficient notice or involvement in financial decisions, the Court would take a position consistent with that of Osborne; at [51], and no compensation for the cost of these works would be ordered. Conclusion 1. I was satisfied the tree caused damage to the applicants' terracotta pipes and to a concrete strip along the common boundary. The applicants failed to prove allegations of tree damage to dwelling foundations and a concrete path, and the tree had been pruned sufficiently small to present a low risk of injury to Mr and Mrs Youman in the foreseeable future. Though the damage caused by the tree was not significant, based on the Court's decision in Granger where relatively minor damage was found to engage the Court's jurisdiction, s 10(2) of the Trees Act is engaged. 2. The damage claim regarding fallen leaves or twigs, or seedlings growing in the dwelling gutters is dismissed upon application of the Tree Dispute Principle in Barker and secondary damage from water penetration may have been prevented by more regular maintenance. Though disputed by the applicants, the tree provided a range of valuable environmental services to Ms D'Accione. 3. The health and condition of the tree appeared to be declining rapidly. Relative to the positive observations recorded by the Hunter arborist in 2022, the tree displayed tip dieback, excessive deadwood, bark necrosis, and apparent rapidly developing fungal decay in a redundant central trunk. The decline was caused by extensive root severing and removal by Mr Youman, herbicide damage, and the harsh tree lopping. Copious basal suckers which were referenced by Mr Youman and removed by Ms D'Accione were another distinct symptom of tree stress. Regardless of orders of the Court, the tree's prognosis was poor. 4. Considering the likelihood of future incursion by the tree's roots into the applicants' terracotta pipes, and the unsuitability and relatively high cost of a root barrier in either property, orders shall be made for tree removal. Ordinarily, orders so made are at the respondent's expense but, as occurred in Joaquim, consequent of herbicide damage to the respondent's tree, the applicants shall contribute to the cost of removal. As the applicants' removal of roots was a reasonable response and the lopping commissioned by the respondent also contributed to the tree's decline, the applicants shall contribute 33% of the cost of tree removal. 5. Mr Youman's extensive root removal provided a temporal buffer against likely damage in the near future. This allows the tree to be retained, should the respondent desire, until 31 March 2025 by which time the need for shade would have reduced and the privacy benefit would be lost along with the tree's leaves. This would allow for establishment of an alternative tree further forward from the applicants' dwelling while the current tree remained, to reduce the duration where privacy and shading benefits are absent, with little negative impact on Mr and Mrs Youman. Orders 1. The Court orders that: 1. The respondent, initially at her expense, shall engage Australian Qualification Framework (AQF) level 3 arborists (the arborists) with all appropriate insurances to remove the tree to near ground level and poison the stump (the works). The works shall be completed by 31 March 2025. Should the tree reshoot, it shall be re-poisoned until it is dead. 2. Within 60 days of the date of these orders, the applicants and respondent shall procure and exchange one quotation for the works from contractors who satisfy the requirements of Order 1. The cheaper quotation shall be the basis for the applicants' contribution. 3. Within 7 days of completion of the works, the respondent shall provide the applicants with a copy of a paid invoice for the works. Within 7 days of receipt of a paid invoice for the works, the applicants shall pay the respondent by Electronic Funds Transfer (EFT) or Bank Cheque, 33% of the cheaper quotation for the works, regardless of whether the respondent proceeded with the more expensive quotation. 4. The works shall comply with Safe Work Australia, Guide To Managing Risks of Tree Trimming and Removal Work, 2016. 5. The applicant shall provide all required access for undertaking the works, subject to 72 hours' notice from the respondent, by email. 6. All works shall be completed during reasonable, daytime working 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: 01 October 2024