Local Councils in Sydney strongly encourage planting indigenous trees to enhance the streetscape and to provide environmental amenity.
Many recommend tall trees such as Smooth-barked apple (height guide 15-25m), Grey Gum (15-20m) and Turpentine (20-30m). As a guide, 21.5m is the height of a six-storey building. If they plant these tall trees, tree owners and residents find it is very difficult to obtain a Council permit to remove these trees unless they are dying.
If a branch falls, it can cause substantial damage to a neighbour’s building, a fence or other structure situated underneath. But that does not necessarily mean that the tree owner is responsible to compensate the damage. Nor does it mean that Council will permit the tree to be removed when pruning is an option.
This article examines when a neighbour has a legitimate claim that a tree should be pruned or removed, and for compensation, and the preventative action that a tree owner can take to avoid responsibility for property damage from their tree.
The Law
The Trees (Disputes Between Neighbours) Act 2006 (NSW) (the Trees Act) gives a neighbour the right to obtain a court order to force the tree owner to prune branches or remove a tree at the cost of the tree owner if the tree has, is, or is likely to cause damage. It also gives the right of compensation.
Part 2 of the Trees Act deals with ‘trees that cause or are likely to cause damage or injury’ –
s 10 (2)
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.
Notes:
‘tree’ is defined as ‘any woody perennial plant’ and includes bamboo, tiger grass/giant clumping grass and vines
‘near future’ is interpreted to mean ‘within the next 12 months or so’
A Council permit is not required if a Court orders the pruning or removal of a tree
The Application is made to the Land and Environment Court of NSW
The Trees Act applies only to urban areas zoned residential, rural-residential, village, township, industrial or business
Case Studies
According to the Land and Environment Court of NSW, in 2019 74% of the applications under the Trees Act concerned a tree causing damage to property or injury to a person.
This is a selection of decisions in the Land and Environment Court of NSW –
Tree displacing a fence - Badzovski v Karovski [2021] NSWLEC 1794
The tree was a Camphor laurel (Cinnamomum camphora) which appeared to partly grow across the boundary between the properties owned by the parties at Bexley. Because it was substantially within Karovskis’ land, it was treated as his tree. The tree had grown against the fence, displacing it and damaging it.
The application was for the removal of the tree and the replacement of the old and dilapidated paling fence with a new fence along the boundary.
Acting Commissioner Galwey noted that the tree was a ‘weedy species’ which provided ‘little benefit to the environment or the local community’. It, together with other smaller trees had damaged the fence, which gave the Court jurisdiction under s 13A of the Dividing Fences Act 1991 (NSW) to make orders to replace the entire fence (not just the damaged section).
The Commissioner ordered that the trees and other vegetation be removed, and that a new 1.8 metre steel panel (e.g. Colourbond) fence on steel posts be constructed, with each neighbour to pay 50% of the cost.
Falling branches causing damage - Donaghy v Hammond [2021] NSWLEC 1526
The tree is a large and mature Sydney Blue Gum (Eucalyptus saligna) growing in and close to the boundary of a property at Gymea Bay owned by Hammond.
“The broad crown extends above over parts of Donaghy’s back yard, pool and dwelling. It has been pruned in the past, but some branches are overextended, and some deadwood is retained in its crown.”
Branches had fallen, damaging Donaghy’s decking roof, roof tiles and sarking. This was enough to convince the Commissioner that damage was ‘likely in the near future’ i.e. within the next 12 months.
Acting Commissioner Galwey did not agree to Donaghy’s request for removal of the tree because the tree provided valuable benefits, which were:
“The Sydney Blue Gum is an indigenous tree, part of the local ecological community. It can be seen from public areas, so contributes to public amenity. It delivers shading, cooling and other ecosystem services. It provides habitat for birds and other fauna. Its removal would have a significant impact on the landscape character of Mr Hammond’s property and the neighbourhood.”
The option was available for “crown-reduction pruning to mitigate the risk of damage from falling branches”.
The Commissioner ordered the reduction of various limbs, removal of deadwood and hazardous branches, to be paid for by Hammond. He ordered that the pruning must be done in accordance with AS 4373 Pruning of amenity trees and the 2016 Safe Work Australia Guide to managing risks of tree trimming and removal work.
The Commissioner also ordered that Hammond engage and pay a suitably qualified consulting arborist (minimum AQF level 5) to assess and provide a written report that included a management plan for the tree to include recommendations for managing the tree for the next 5–10 years, including the frequency of any pruning works, inspections or other recommendations. A copy of the plan was to be given to Mr Donaghy.
Damage to air conditioning unit and clothesline - Touma v Gerholt [2021] NSWLEC 1320
A large Sydney Blue Gum (Eucalyptus saligna) grows in the rear garden of the tree owner’s (Gerholt’s) property at Rockdale. It is a healthy tree, planted 30 years ago by the property owner, and is now over 30 metres high. The tree’s broad crown spreads in all directions, over her garden and above three neighbouring properties. “Almost one entire quadrant of the tree’s crown” extends above Touma’s property.
The tree is a significant natural feature of the landscape, as can be seen from the photos
The tree owner had pruned the tree regularly. She had arranged for the tree to be pruned to remove deadwood and remove or reduce overextended branches but had delayed pruning pending the outcome of this proceeding.
Touma had purchased her property in 2018. On the property was a granny flat built in 2016, close to the back fence and under the tree (being a complying development, the risk of damage by the tree was not assessed by Council when granting approval).
She applied for the tree’s removal because branches had fallen from the tree and had caused damage to her air conditioning unit and clothesline and was likely to cause damage and possibly injury in the future. She had paid an insurance excess of $1,000 which was part of her claim.
The tree owner wanted to keep the tree and was prepared to prune the deadwood and hazardous branches (at her cost).
Ms Touma’s application for removal was refused. The Commissioner made pruning order for Gerholt to carry out at her cost, because it was her tree. No compensation was awarded because the tree had been pruned regularly in the past.
The Commissioner said the “tree contributes significantly to the local environment, to public amenity and to the landscape value of Gerholt’s property and surrounding properties. … I found no reason to remove the tree, as the risk of branch failure can be sufficiently minimised by removing dead and other hazardous branches from the tree’s crown.”
The tree grows close by the houses
The Sydney Blue Gum towers over the houses in the neighbourhood
The limb has been pruned recently
All Photos © Anthony J Cordato 2022
Garage destroyed - Rawlings v Marshall [2021] NSWLEC 1268
The tree was a mature Swamp Mahogany (Eucalyptus robusta) approximately 15 metres high. The species is typical of garden plantings in the 1960s and ‘70s. It was growing in the rear yard of Mr Marshall’s property at Blackett and was there when he purchased it.
One branch approximately 30 cm in diameter, fell during a storm on 26 December 2020, severely damaging Mrs Rawlings’ garage roof and building frame. The garage was old, its roof was asbestos, and had to be demolished. The fallen branch also damaged Mr Marshall’s garage, which also had an asbestos roof.
Rawlings applied for removal of the tree and for compensation for damage to the garage (which was not insured).
Acting Commissioner Cawley ordered removal of the tree at Mr Marshall’s expense but refused compensation.
His reasons for refusal were that Mr Marshall “did not plant the tree, nor did he take any action to increase the likelihood of its branches failing. The tree appears healthy, such that only an arborist would be likely to recognize its history and identify structural defects [i.e. many branches were weakly attached as a result of poor pruning some decades ago]. Mr Marshall did not adopt and knowingly continue a nuisance. Given the tree’s healthy appearance, he had no reason to remove the tree.”
Falling leaves, twigs and berries - Golden v Li [2021] NSWLEC 1751
Golden complained that leaves, twigs and other debris from the neighbour’s tree - a Queensland Brush Box (Lophostemon confertus) were falling onto his tennis court at Turramurra. Golden said the debris was blocking the drains and that the maintenance required to remove the debris was unreasonable.
The Court dismissed the application to remove or prune the tree.
The Court relied on the ‘Tree Dispute Principle’ stated in Barker v Kyriakides [2007] NSWLEC 292 that debris from a tree which settles on a roof, blocks gutters and downpipes, and covers a garden is not actionable as damage:
“For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis.
The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree.”
This article is the second in a series of five. The other articles are:
Tree Disputes - The common law right to remove overhanging branches
Tree Disputes - Tree roots causing damage
Tree Disputes - Trees causing injuries
Tree Disputes - High hedges blocking sunlight or a view
Click to access them.