Neighbourhood Tree Disputes: Consultation Paper

2. Examples of tree disputes

Introduction

2.1 Tree disputes vary in character and complexity because of ecological and interpersonal factors. For a tree owner, a tree might provide shade, privacy, support for wildlife and amenity to their property. However, for a neighbour, the same tree may become a cause for concern if it is likely to damage their property or cause harm to its occupants.^[1] The opposite is also true: a neighbour may enjoy the shade or amenity provided by a neighbouring tree which drops litter and branches into its owner’s garden.^[2]

2.2 Trees are not intrusive or hazardous in and of themselves. However, as a tree grows, it can interact with neighbouring land. A common issue occurs when a tree ‘encroaches’ over boundary lines: parts of the tree, such as branches or roots, overhang or grow into neighbouring land. Trees growing close to boundary lines are more likely to encroach in this way.

2.3 Minor encroachment can be remedied by cutting away the branch or root, or erecting a root barrier.^[3] More significant or pervasive encroachments, potentially posing greater risks to property or people, may require the specialist skills of arborists to mitigate risks and to maintain the structural integrity of the tree.^[4]

2.4 Although encroachment is an aspect of many tree disputes, it is not always a factor. Damage or harm can result without encroachment, such as when leaf litter or pollen is blown onto neighbouring property, or when an entire tree falls across boundary lines onto neighbouring land.

2.5 This chapter uses case studies to explore common ways trees may damage or interfere with neighbouring property or cause harm,^[5] and the variety of ways tree disputes can escalate and adversely affect neighbours’ relationships.

2.6 Some of the cases mentioned in this chapter include trees on public land that are owned by local councils. Although disputes involving publicly owned trees are outside the scope of this inquiry, these cases provide useful examples of damage or harm which may also occur between neighbouring private landowners.

Impact on neighbours’ relationships

2.7 As noted in Chapter 1, tree disputes can compound existing conflict, or even ruin once amicable relationships.^[6] While this can be true of many types of legal dispute, tree disputes can give rise to particularly impassioned responses because they can seem to challenge a person’s ownership and enjoyment of their land and any sentimental attachment they may have to their tree.

2.8 Tree disputes can create stress and anxiety for neighbours and can significantly impair their experience of living in their homes.^[7] According to Victoria Legal Aid, these types of disputes ‘can have a serious effect on everyday life.’^[8] The breakdown of a harmonious relationship due to a lack of cooperation, unresponsiveness or hostility and, in extreme cases, trespass and criminal damage, may delay or prevent the resolution of a tree dispute.^[9] Tree disputes can also lead to applications for a personal safety order.^[10]

2.9 Some examples of tree disputes causing a breakdown of neighbourly relations or compounding pre-existing conflict are given below.^[11]

2.10 In Owners Corporation SP020030 v Keyt,^[12] the owners of a property next to a block of units managed by an Owners Corporation (OC) planted two Leyland cypresses along their dividing fence, which abutted the driveway of the block of units. Over time, the concrete of this driveway started to lift and become uneven. This structural damage was attributed to root damage from the trees.

2.11 The tree owners ignored the OC’s multiple attempts to resolve the issue and on one occasion became verbally abusive when approached. The OC then took legal action for trespass, negligence and nuisance, and applied for damages of $61,392 for rectification works. The tree owners decided to sell their property at auction but the property did not sell. The tree owners still did nothing about the trees.

2.12 In court the tree owners denied the allegations and knowledge of the damage. They later sold their property by private sale to buyers who were not informed about the legal dispute. Just before signing the contract of sale the buyers were told by the tree owners that they had been informed ‘out of the blue’ that they were being sued, and asked the buyers to increase their purchase price to cover the cost of the damages being sought. The buyers agreed and, on assurances from the tree owners that they would rectify the tree problem before they took possession, eventually settled.

2.13 The tree owners did not rectify the problem by the time the buyers moved in and all attempts to contact the tree owners were ignored or lost between the three different law firms the tree owners had engaged. In court, it was determined that the damage to the driveway resulted from the tree owners’ negligence. They were ordered to pay the OC $61,780 in damages.

2.14 In another case, as reported in the media, a couple were convicted and fined for

criminal damage in the Geelong Magistrates’ Court after they pleaded guilty to poisoning 40 cypress trees on neighbouring properties. The couple were witnessed treating the soil near the trees with hydrochloric acid, a substance known to kill most plant species.

The couple were believed to have poisoned the trees following longstanding disputes over the trees which they believed had caused root damage to their land and property.^[13]

2.15 Parties to a tree dispute are not always residential neighbours. They may also be a neighbouring community establishment such as a school or local business. Disputes between such establishments and residential neighbours may be influenced by an uneven balance of financial and legal resources, and may therefore require a different approach to resolution.

Damage and interference to land and property

2.16 Encroachment of branches or tree roots is the most common cause of tree-related impacts on neighbouring property that are reported in cases brought before a court.

This likely reflects the seriousness of the damage, which would justify the expense and time involved in taking court action.^[14] Entire trees or branches may also fall onto neighbouring land.

2.17 Overhanging branches can affect neighbouring properties by taking up space or dropping leaf litter, and by causing damage to property by exerting pressure on or falling onto structures.^[15]

2.18 Encroaching roots may cause damage to structures and foundations, as well as to other plants, and may pose a safety hazard.^[16]

Leaf litter

2.19 The accumulation of leaf litter on neighbouring land is a common cause of tree disputes. Leaf litter can be made up of flowers, fruit, leaves, bark or small pieces of deadwood. All trees shed this type of matter. Deciduous trees shed their leaves all at once, usually in winter, while evergreen trees shed their leaves all year round.^[17]

2.20 Leaf litter which has dropped onto neighbouring land can cause blockages in gutters and drains, and affect other parts of the property. Leaf litter can also be blown onto neighbouring land by wind and other natural forces.

2.21 In Wilson v Farah,^[18] the affected neighbour brought an application against her neighbours who owned a fiddlewood tree which overhung her pool and deposited flowers and leaves in it. The leaf litter caused algae to grow in the pool. The affected neighbour sought the removal of the tree in the New South Wales Land and Environment Court (NSWLEC) on the basis that the pool required an unreasonable level of maintenance, up to three times a day, in order to be useable. She also claimed that the leaf litter had damaged her pool and was likely to cause further damage. The tree owners disagreed with the removal of the tree but were prepared to remove the overhanging branches subject to permission from the local council, which enforced a tree protection order over the tree.

2.22 The NSWLEC determined that although the tree contributed substantially to the leaf litter in the pool,^[19] the maintenance required formed part of the ordinary ‘exterior house and grounds maintenance’ expected in urban environments.^[20] Furthermore, it was determined that the leaf litter in the pool had not caused any damage and was not likely to do so in the future. The application was dismissed.^[21]

2.23 In Leonardi v Watson,^[22] the affected neighbours sought the removal of an Indian raintree on their neighbour’s land in the Queensland Civil and Administrative Tribunal (QCAT). One of the complaints concerned a large amount of leaf litter, including flowers that left a sticky residue, on their roof and gutters, causing them to become blocked and to overflow. They claimed the cost of professional cleaners caused them financial hardship. They also pointed to the difficulty of removing small trees that grew in their garden as a result of seedlings deposited by the tree. The Appeal Tribunal decided that the cleaning of the roof and gutters formed part of the ordinary level of maintenance required in urban environments, and that the leaf litter could also be from other trees in the area.^[23] The original application was dismissed.

Encroaching branches

2.24 Branches that overhang boundary lines can cause damage to property by interfering with a structure.

2.25 Branches may also cause damage by falling into neighbouring property. The falling of a branch from an otherwise healthy tree is commonly known as ‘sudden limb failure’ or ‘summer branch drop’.^[24] The cause of this tendency is unclear, however, some species of tree are more likely to drop branches in this way.^[25]

2.26 Certain stressors may increase the likelihood of branches and trees falling, such as: windy conditions, extreme temperatures or changes in temperature, drought, fire, flooding or excessive branch weight. Branches may also break off and drop when a tree dies or when the branch itself begins to decay or die.^[26]

2.27 In Yang v Scerri,^[27] the affected neighbour sought the removal of a Sydney blue gum on her neighbour’s property on the basis that it was likely to cause damage or injury in the near future. One of the tree’s trunks and some branches had already broken away without warning and fallen, damaging her unit. The affected neighbour sought compensation for the cost of legal action and for the insurance excess incurred in the most recent incident. The tree owner opposed the tree’s removal and argued, on the basis of an arboricultural report, that the tree was in good health, and that it was likely to live for another 15–20 years. The tree owner also submitted that maintenance orders for pruning and removal of deadwood, and annual inspections, were preferable to the removal of the entire tree.

2.28 The NSWLEC, after inspecting the tree, agreed that there were no structural weaknesses in the tree and determined that removal was not necessary as the tree was not likely to cause damage or injury in the future. Instead, the Court made orders for the pruning of branches, removal of deadwood and inspections of the tree.^[28]

Falling trees

2.29 A tree may cause damage to neighbouring property by falling across boundary lines. Even healthy trees can be completely uprooted during strong winds.^[29] It can be difficult to predict when and which way a tree is likely to fall.^[30]

2.30 Robson v Leischke,^[31] the leading case in New South Wales, provides an example of a tree falling across boundary lines onto neighbouring property. On a windy evening, an 80-year-old ironbark tree, 16 metres high and situated on private land, fell onto neighbouring land, causing significant damage to the roof, ceilings, windows and other parts of the house and consequential water damage to the interior.

2.31 As a result of the damage, the house was unable to be occupied for 15 weeks. The tree owner’s insurance company denied liability, as it claimed the tree had fallen in a storm, not as a result of the tree owner’s negligence. The insurer told the affected neighbour it would ‘vigorously defend’ any claims for compensation. The affected neighbour brought legal action in the NSWLEC for compensation for loss of rent during this time, as well as expenses for rectification works.

2.32 The tree owner defended these claims primarily on the basis that the tree’s fall was not his fault. He also argued that the claims for compensation were excessive and inappropriate.

2.33 The tree owner engaged an arborist who examined the tree as well as photographs taken at the time it fell. Based on the photographs, the arborist did not observe any of the usual indications of poor health^[32] but physical inspection of the fallen tree revealed that the lower tree trunk had minor fungal damage due to a root disease. The damage was located underground and had only become visible because the tree had fallen.

2.34 The arborist determined that the tree fell due to a combination of storms, water-logged soil and root damage. The presence of the root disease was attributed to the construction of a retaining wall and other site modifications that had impacted the tree’s root zone. The arborist considered that the root disease, although usually a cause for concern, would not have been obvious on inspection before the tree fell. Furthermore, the tree was not known to be a problematic species and no one, including the affected neighbours, had ever reported any problems with it.

2.35 Chief Justice Preston determined that the tree owner had no knowledge about the state of the tree and was thus not at fault for its failure or the loss suffered by the affected neighbour. He determined: ‘In these circumstances, the justice of the situation is to leave the loss where it falls, namely on [the affected neighbour]’.^[33] The application was dismissed.

Encroaching roots

2.36 While branches that overhang boundary lines can be easily seen, the extension of a tree’s root system into neighbouring land at a subterranean level is not as visible. Encroaching roots can cause structural damage by putting pressure on built structures or affecting their foundations, either directly or by changing the water content of the subsoil.^[34] Roots can also create hazards by cracking concrete walkways or creating uneven ground.

2.37 It is a common myth that the root system of a tree is found deep in the soil and extends as far as the edge of its canopy. In fact, root systems grow in the shallower layers of soil and can extend far beyond the equivalent reach of a tree’s canopy.^[35]

2.38 The growth of roots can depend on the soil conditions.^[36] Uncompacted soil is well-aerated and ideal for root growth. Compacted soil of the kind commonly found in built, urban environments contains lower levels of oxygen and water. Roots in this kind of soil search for more favourable conditions to find oxygen, water and other nutrients. More favourable conditions can include the water-rich soil around cracked or leaking sewers, drains and pipes.^[37]

2.39 The amount of pressure tree roots are able to put on built structures depends on many environmental factors. While tree root pressure can affect pavements and walls, it is not strong enough to penetrate significant structural obstructions, such as pipes. If tree roots encounter an obstruction that cannot be penetrated, they will usually grow around it.^[38] Tree roots sometimes enter pipes and cause blockages by growing in them if the pipe is already weakened or cracked.^[39] Roots also grow along the exterior of a pipe to access water condensation that has gathered on its surface.^[40]

2.40 Tree roots can also cause the swelling and shrinking of subsoil underneath the topsoil. Changes in moisture brought about by the water intake of the tree can cause volume changes in the soil which in turn can lead to cracked or uneven foundations.^[41]

2.41 The extent to which tree roots encroach depends on complex ecological factors. Moreover, whether or not damage to property is attributable to encroaching tree roots may be difficult to prove.

2.42 In Cacopardo v Woolcock,^[42] the affected neighbours noticed problems with the plumbing in their main bathroom. They contacted a plumber who found roots believed to be from their neighbour’s fig tree in their pipe system. A short while later, they noticed further problems caused by the growth of the same roots in the pipes of their ensuite. The plumbing work required cutting away the concrete foundations, leaving both bathrooms in significant disrepair.

2.43 The affected neighbours engaged an arborist who confirmed that the roots found in the pipes were from the neighbouring fig. The affected neighbours wrote to the tree owner’s lawyers and demanded to be paid compensation for the root damage. The tree owners responded that the fig tree had been cut down and removed, and that they had been advised by their own expert plumbers that the issues experienced by the neighbours were due to pre-existing cracks in the pipes. They also queried whether the roots did in fact belong to their fig tree and not another tree.

2.44 The affected neighbours carried out further excavation works to identify the tree the roots belonged to, removing concrete from footpaths and incurring further expense. By the time the matter was brought before QCAT, the affected neighbours were seeking compensation of over $20,000.

2.45 At the hearing, parties relied on the expert evidence of their respective arborists. The tree owners relied on the additional expert evidence of a plumber. All experts agreed that the pipes had cracked before the entry of tree roots but did not agree on its cause. The tree owners’ experts stated that the moisture level of the ground following rainfall was the main factor leading to the ground movement that caused the cracking. The affected neighbours’ expert stated that moisture levels causing soil movement had ‘ultimately cause[d] the pipes to break, due to the roots drawing moisture from the soil, and thereby contributing to the contraction of the soil as it lost moisture’.^[43]

2.46 The Tribunal determined that the roots did indeed belong to the fig tree but that, as expressed by the majority view of the experts, ‘the pipes failed in consequence of soil movement, caused by soil moisture attributable to rainfall patterns; and, that it was only after the pipes had already failed that the fig tree roots then gained access to them, thus eventually causing a blockage’. The Tribunal went on to say that the blocking of the pipes by roots was ‘merely the event that informed the [affected neighbours] that they had a longstanding problem with their drains’.^[44] The application was dismissed.

2.47 In Smith v Zhang,^[45] the affected neighbours noticed cracks in the external and internal brick wall of their study. An engineer attributed this damage to a large root belonging to a Sydney blue gum on their neighbour’s property. They could not make an insurance claim as they were not covered for damage from tree roots. The couple tried to negotiate with the tree owners but these negotiations failed. This tree was also protected by the local council; unauthorised works would result in a fine of $1.1 million dollars.

2.48 The affected neighbours took the matter to the NSWLEC to seek removal of the tree and rectification costs of almost $50,000. After a site inspection and excavation, the Court agreed with the tree owners’ expert witnesses who claimed the damage was not due to the tree root but other structural and ecological factors.

2.49 In Marshall v Berndt,^[46] the affected neighbour was an amateur botanist. In her backyard were many aquatic tanks, used to grow water lilies and goldfish for sale.

2.50 She and her neighbour had had disputes over tree root damage to her land and boundary fence for more than 10 years. Their relationship was described as ‘frosty’.

2.51 The longstanding dispute culminated in a month-long trial in the County Court of Victoria. The affected neighbour brought legal action against the tree owner for the encroachment of trees, vines and creepers that caused damage to brick paving, aquatic tanks, and plants and fish in the tanks. She stated that she had tried to cut off as much encroaching ivy as she could but that the aquatic tanks were in the way.^[47] She claimed that the encroachment constituted a nuisance and that the tree owner had been negligent, and sought $95,700 in compensation for rectification works and for the replacement of her plants.

2.52 The tree owner told the Court that he had planted some trees in the past to block out the view of the affected neighbour’s aquarium tanks and conceded that although he removed some of the subject trees and took care to trim them, he had at times ignored the affected neighbour’s claims of root damage and had delayed their removal.

2.53 The Court determined that, because the tree owner ignored early communication with the affected neighbour about the root encroachment, he was liable for some of the root damage, namely to the pavement and minor damage to the tropical house and garden shed. The Court awarded the affected neighbour $5,000 for this damage. Other damage to her back porch and lounge was attributed to structural defects and geological causes.

Harm to people

2.54 Trees may cause harm (known as ‘injury’ in some jurisdictions) to neighbours^[48] by affecting their health or causing injuries, including by triggering allergies, causing injury from falling branches or trees,^[49] or creating trip hazards from structures compromised by root growth.^[50]

Health conditions

2.55 Heath conditions may be caused or exacerbated by pollen, leaf litter, flowers or fruit from a tree.

2.56 Pollen is a known cause of allergies. The pollen of a tree is disseminated by wind, bees and birds. Pollen can trigger allergies such as hayfever or respiratory conditions such as asthma.^[51] The timing of pollination changes depending on the tree species.^[52]

2.57 In Leonardi v Watson,^[53] the affected neighbour sought the removal of their neighbour’s Indian raintree due to her allergies. She claimed that the ‘pollen affects her breathing; causes a burning sensation down her throat; her eyes swell and become infected; she develops blotches on her skin similar to measles; it affects the skin between her fingers and her toes and the soles of her feet’. A pollen test returned positive results and also indicated that she was allergic to plastics. The tree was ordered to be removed because of these allergies. However, on appeal, the original decision was overturned and the application dismissed. The Appeal Tribunal determined that:

• The affected neighbour’s allergies did not satisfy the ‘serious injury’ threshold as evidenced by her doctor’s assessment,^[54] her own assessment,^[55] and the fact that her medication was recommended to her rather than prescribed.^[56]

• It could not be conclusively proven that the tree was the sole cause of her allergies^[57] or that the tree’s removal would prevent the reaction.^[58]

2.58 Other health conditions may result when leaf litter and other tree products cause contamination, for example, of a neighbour’s water supply.

2.59 In the 1917 New Zealand case Matthews v Forgie,^[59] the tree owner had some Macrocarpa trees which grew close to the boundary of his land.

2.60 The tree owner’s land and the affected neighbour’s land were separated by a road. However, during southerly and south-westerly winds, leaf litter from the trees was blown across the road onto the affected neighbour’s land.

2.61 The leaf litter polluted the neighbour’s rainwater tanks which were his only water supply for drinking and domestic uses. The neighbour alleged that, as a result of the contamination, he contracted dysentery. He brought legal action against the tree owner for damages.

2.62 Initially, the New Zealand Magistrates’ Court determined that the affected neighbour was entitled to recover damages for his suffering and loss of earnings during the two weeks he was ill.^[60] However, on appeal, the Supreme Court of New Zealand determined that the tree owner was not liable for the harm suffered because the trees themselves were not noxious,^[61] nor did they constitute a nuisance. The appeal was allowed and judgment in favour of the tree owner was recorded in the Magistrates’ Court.

Falling branches or trees

2.63 Dropping branches or falling trees can pose risks to health and safety, and cause injury or even death.^[62]

2.64 In Huggett v Burrowes,^[63] the affected neighbour sought the removal of a lemon-scented gum, arguing that it was likely to cause injury by dropping branches. The tree was located on neighbouring land close to the boundary, with over half of its canopy overhanging the affected neighbour’s land.

2.65 Two other trees of the same species and size had previously been removed after they had fallen on the affected neighbour’s land following windy conditions and prolonged rain, causing damage to the affected neighbour’s land.

2.66 The remaining tree had previously dropped three large branches. These branches were healthy and fell without warning in calm conditions. The second fell on the affected neighbour’s clothes line. The affected neighbour told the NSWLEC that had ‘anyone been hanging out the washing at the time then serious injury could have occurred’.^[64]

2.67 The Court determined that given the previous multiple episodes of branches dropping unpredictably, it was likely the same could occur again in the near future and cause injury. The tree was ordered to be removed.

2.68 In a United States case, Kurtigian v City of Worcester,^[65] a large elm tree located on public land caused serious injury to a neighbour on adjacent private land. The tree had an elm disease, and although it had died, it remained on the land with only three large branches protruding from its trunk.

2.69 When one of the remaining branches broke away from the tree on a windy day and fell onto the neighbour’s land, the City of Worcester inspected the tree and determined that, although the tree had died, there was no indication that its remaining parts were structurally unsound. The tree was not removed.

2.70 A year later, on another windy day, while outside in his yard with his young nephew, the neighbour ‘heard a cracking sound, looked up, and saw a heavy [branch] falling toward him’.^[66] The two were knocked down by the branch. The neighbour lost consciousness, sustained a fracture to his skull and left wrist, and had his left arm broken in two places.

2.71 The neighbour took legal action against the City. On hearing the matter, the Court considered that the City, following inspection of the tree after the first branch fell, should have realised that ‘the remaining limbs were likely to fall at any time and obviously might be blown onto the [affected neighbour’s] land. They were large enough to cause serious personal injury, as was demonstrated by the one which struck the [affected neighbour]’.^[67] The Court determined that the tree constituted a nuisance and the City was held responsible for the affected neighbour’s injuries.^[68]

Conclusion

2.72 Tree disputes can escalate quickly and damage neighbourly relations beyond repair if neighbours do not approach or respond to each other in respectful and constructive ways.

2.73 Trees can adversely affect neighbouring land or cause harm in many ways, particularly from encroachment of branches or roots.

2.74 However, trees are not by nature intrusive or hazardous. Trees need to grow, and therefore take up space, to stay alive. There are complex biological and ecological factors that affect the way a tree grows.^[69] It is important to take these factors into consideration when planting and maintaining trees, particularly in built environments where neighbours live in close proximity to one another. The Commission invites community members and stakeholders to share examples of neighbourhood tree disputes in Victoria, and whether and how they were resolved.

Question

1 Have you been involved in a neighbourhood tree dispute? What was it about and what was the outcome?

1. See, eg, Rogerson v Dean [2017] NSWLEC 1209.

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2. See, eg, Matthew Condon, ‘The Day a New Neighbour Called in the Chainsaws to Destroy a Giant Tree and Changed Our Lives Forever’, The Courier Mail (online), 15 October 2014 <www.couriermail.com.au/news/queensland>.

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3. This is called abatement, a common law self-help remedy: see [3.17]–[3.26].

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4. See, eg, Campbell v Blackshaw [2017] ACAT 64 [10] (30 August 2017).

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5. Although damage and harm are discussed separately in this chapter for reasons of clarity, it is important to note a tree dispute
   
   may be based on claims of both: see, eg, Yang v Scerri [2007] NSWLEC 592 (31 August 2007); Leonardi v Watson [2015] QCATA 192
   
   (22 December 2015).

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6. See, eg, Cacopardo v Woolcock [2017] QCAT 214 (12 June 2017); R v Stenberg [2013] NSWSC 1858 (13 December 2013); Marshall v Berndt [2011] VCC 384 (7 April 2011) [229].

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7. Lynda Cheshire and Robin Fitzgerald, ‘From Private Nuisance to Criminal Behaviour: Neighbour Problems and Neighbourhood Context in an Australian City’ (2015) 30(3) Housing Studies 100, 101; Mediation SA, Preventing Conflicts in the Modern Neighbourhood: Tips on Being a Good Neighbour (2015) 61.

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8. Victoria Legal Aid, Disputes With Neighbours <www.legalaid.vic.gov.au/find-legal-answers/disputes-with-neighbours>.

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9. Ibid.

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10. Ibid.

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11. These are given as general examples of how disputes about trees can affect relationships. They are not squarely examples of trees causing damage or harm.

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12. [2016] VCC 1656A (24 October 2016).

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13. Karen Matthews, ‘Geelong Court: … Couple Pleads Guilty to Poisoning Neighbours’ Trees’, Geelong Advertiser (online), 20 January 2016 <www.geelongadvertiser.com.au/news/crime-court/geelong-court-lovely-banks-couple-pleads-guilty-to-poisoning-neighbours-trees/news-story/e65a9b00bdf98c5f7938c4e88ce2d2ba>.

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14. See generally City of Richmond v Scantelbury [1991] 2 VR 38; Yang v Scerri [2007] NSWLEC 592 (31 August 2007); Hiss v Galea [2012] VCC 2010 (21 December 2012); Owners Corporation SP020030 v Keyt [2016] VCC 1656 (24 October 2016); Rogerson v Dean [2017] NSWLEC 1209 (24 April 2017).

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15. See, eg, Wilson v Farah [2017] NSWLEC 1006 (10 January 2017); Yang v Scerri [2007] NSWLEC 592 (31 August 2007).

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16. John Roberts, Nick Jackson and Mark Smith, Tree Roots in the Built Environment (Arboricultural Association, UK, 2005) 369.

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17. Bob Thomas, Abscission: The Reason Why Leaves Fall, (25 November 2007) Loyola University New Orleans <www.loyno.edu/lucec/natural-history-writings/abscission-reason-why-leaves-fall>.

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18. [2017] NSWLEC 1006 (10 January 2017).

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19. The Court noted there were other trees on the affected neighbours land and other adjoining properties that could have contributed to the leaf litter in the pool.

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20. See Tree Dispute Principle in Barker v Kyriakides [2007] NSWLEC 292 (24 May 2007).

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21. In the recent case of Fang v Li [2017] NSWLEC 1503 (19 September 2017) [26], Acting Commissioner Galwey reiterated the NSWLEC’s consistent position that where ‘damage could usually be avoided by [neighbours] undertaking reasonable maintenance of their properties’, tree owners will not be held responsible for resulting damage.

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22. [2015] QCATA 192.

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23. Leonardi v Watson [2015] QCATA 192 (22 December 2015) [54], [59]; cf Ferraro v Body Corporate of ‘Omaru’ Brisbane City Council [2013] QCAT 343; Oberhoffer v Tarlton [2013] QCAT 495 (19 September 2013).

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24. Huggett v Burrowes [2015] NSWLEC 1057 (18 March 2015) [12].

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25. Richard W Harris, ‘Summer Branch Drop’ (1983) 9(4) Journal of Arboriculture, 111–13; Rogerson v Dean [2017] NSWLEC 1209
    
    (24 April 2017).

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26. Parks Victoria, Tree Risk <http://parkweb.vic.gov.au/safety/be-safe-plan-ahead/tree-risk>.

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27. [2007] NSWLEC 592 (31 August 2007).

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28. Ibid [16].

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29. Coroners Court of Victoria, Finding into Death without Inquest of Eli Ian Marnock, (COR 2015 1006) (14 July 2017), 5 n. 14.

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30. Parks Victoria, Tree Risk <http://parkweb.vic.gov.au/safety/be-safe-plan-ahead/tree-risk>.

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31. (2008) 72 NSWLR 98.

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32. Such as a ‘lack of foliage, reduction in canopy, epicormic growth, fungal infestation, borer or termite activity’: ibid [10]. Epicormic growth refers to the growth of epicormic buds (dormant underneath bark until the tree’s health is compromised) into epicormic shoots. Larger limbs that grow from epicormic buds can be more poorly attached than branches, and may fall more easily: Andrew R Meier, Michael R Saunders and Charles H Michler, ‘Epicormic Buds in Trees: A Review of Bud Establishment, Development and Dormancy Release’ (May 2012) 32(5) Tree Physiology 565–84.

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33. Robson v Leischke (2008) NSWLR 98 [228].

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34. Joel Silver, Nuisance by Tree – Who’s the Guilty Tree? (18 May 2015) Gordon & Jackson, [27] <www.gordonandjackson.com.au/resources_uploads//documents/articles/Nuisance_by_Tree_Joel_Sliver_May_2015_2.pdf>.

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35. Nelda Matheny and James R Clarke, A Photographic Guide to the Evaluation of Hazard Trees in Urban Areas (International Society of Arboriculture, 2nd ed, 1994) 5. Roots usually grow within the top 60 cm of soil.

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36. John Roberts, Nick Jackson and Mark Smith, Tree Roots in the Built Environment (Arboricultural Association, UK, 2005) 375.

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37. Ibid.

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38. Ibid 371.

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39. Most experts agree that tree roots do not exert enough pressure to penetrate pipes of sound quality but some disagree with this:
    
    Ibid 398.

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40. Ibid 398.

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41. Ibid 359. See, eg, City of Richmond v Scantelbury [1991] 2 VR 38; Owners Corporation SP020030 v Keyt [2016] VCC 1656
    
    (24 October 2016).

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42. [2017] QCAT 214 (12 June 2017).

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43. Cacopardo v Woolcock [2017] QCAT 214 (12 June 2017) [33].

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44. Ibid [34].

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45. [2011] NSWLEC 29 (4 March 2011).

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46. [2011] VCC 384 (7 April 2011).

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47. Ibid.

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48. As well as causing harm to people, subject trees may also harm pets and livestock on an affected neighbour’s land. For example, in the English case of Crowhurst v Amersham Burial Board (1878) 4 Ex D 5, branches of a tree, whose leaves and branches were poisonous to stock, projected over the neighbour’s land and were eaten by the neighbour’s horse, which later died from poisoning. This was found to constitute nuisance.

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49. See [2.25]–[2.27], [2.29] for further information about the causes of falling branches and trees.

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50. John Roberts, Nick Jackson and Mark Smith, Tree Roots in the Built Environment (Arboricultural Association, UK, 2005) 369.

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51. See, eg, Tuft v Piddington [2008] NSWLEC 1249 (3 June 2008); Hurditch v Staines [2008] NSWLEC 1351 (22 August 2008); Oakey v Owners Corporation Strata Plan 22678; Oakey v Owners Corporation Strata Plan 5723 [2009] NSWLEC 1108 (19 March 2009); Turner v O’Donnell [2009] NSWLEC 1349 (9 October 2009).

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52. Australasian Society of Clinical Immunology and Allergy, Information for Patients, Consumers and Carers: Pollen Allergy (2017), ASCIA <www.allergy.org.au/patients/allergic-rhinitis-hay-fever-and-sinusitis/pollen-allergy>.

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53. Leonardi v Watson [2015] QCATA 192 (22 December 2015). This case is also discussed above at [2.23] in relation to leaf litter. The affected neighbour’s allergies were the primary reason for the claim.

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54. Ibid [39], [42].

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55. Ibid [40].

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56. Ibid [41].

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57. Ibid [44], [45].

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58. Ibid [43], [47], [68].

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59. Matthews v Forgie [1917] NZLR 921.

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60. Ibid 922.

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61. As per the rule in Rylands v Fletcher [1868] UKHL 1 (17 July 1868), which has been overturned in Australia: Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520.

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62. See discussion of causes above at [2.25]–[2.29]. See, eg, Timbs v Shoalhaven City Council (2004) 132 LGERA 397—this case illustrates how death may be caused by falling trees, although it is not a neighbourhood dispute as defined by the terms of reference of this inquiry. In this case, a subject tree protected by council fell on the tree owner’s own land, killing him in the process. See also State Coroners Court of New South Wales, Inquest into the Death of Bridget Wright (2014/56521) (20 November 2015) and Coroners Court of Victoria, Finding into Death with Inquest of Patiya May Schreiber, (2013/6032) (10 September 2015), where the deceased persons were each killed by a falling branch.

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63. [2015] NSWLEC 1057 (18 March 2015).

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64. Ibid 10.

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65. Kurtigian v City of Worcester 348 N.E.2d 284 (Mass, 1964–1965).

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66. Ibid 290.

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67. Ibid.

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68. Ibid 291.

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69. Commissioner Judy Fakes, ‘Tree Disputes—Managing Expectations’ (Speech delivered at the 17th National Street Tree Symposium, Adelaide, 1 September 2016) <www.treenet.org/resources/tree-disputes-managing-expectations/>.

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