Land and Environment Court New South Wales

• Medium Neutral Citation: Taylor v Guttenberg [2013] NSWLEC 1045
• Hearing dates: 14 February 2013
• Decision date: 19 March 2013
• Jurisdiction: Class 2
• Before: Galwey AC

Decision

(1)The application is upheld in part.

(2)The respondents are to pay the applicants $685 within 30 days of the date of these orders.

(3)Within 30 days of the date of these orders the respondents are to engage a suitably qualified arborist (minimum AQF level 3), with appropriate insurances, to prune the Wallangarra White Gum, removing the largest branch over the applicants' property back to its branch collar at the stem. See attached diagrams.

(4)The works in (3) are to be done in accordance with AS4373:2007 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(5)The respondents are to provide the applicants with at least three working days' notice of the works in (3).

(6)The applicants are to allow access for the works in (3) during reasonable hours of the day.

(7)Nothing in these orders amends or supercedes the provisions of the orders in Taylor v Guttenberg [2011] NSWLEC 1159.

• Catchwords: TREES [NEIGHBOURS]; damage; risk of damage or injury; situation has changed; compensation ordered; pruning ordered.
• Legislation Cited: Civil Liability Act 2002; Motor Accidents Compensation Act 1999; Trees (Disputes Between Neighbours) Act 2006; Workers Compensation Act 1987
• Cases Cited: Hinde v Anderson & anor [2009] NSWLEC 1148; Immarrata v Mourikis [2007] NSWLEC 601; Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29; Taylor v Guttenberg [2011] NSWLEC 1159; Yang v Scerri [2007] NSWLEC 592
• Category: Principal judgment
• Parties: Paul Taylor (First applicant)Karen Taylor (Second applicant); Michael Guttenberg (First respondent); Judith Guttenberg (Second respondent)
• Representation: APPLICANT; Brian Phillips (Solicitor) MCW Lawyers; RESPONDENTS; Michael Guttenberg and Judith Guttenberg (Litigants in person)
• File Number(s): 21129 of 2012

Judgment

Introduction

1 In leafy Yarrawarrah, close to Royal National Park, trees form a significant element of the landscape, many in residential gardens. One such tree was the subject of a previous application to the Land and Environment Court in 2011. After a limb fell from that tree in August 2012, damaging their clothesline, the applicants in that matter (Taylor v Guttenberg [2011] NSWLEC 1159) applied to the Court again seeking orders for removal of the same tree and for compensation of $685 for damage caused by the tree. A new application for the same tree can only be made if the circumstances have changed, as outlined in Hinde v Anderson & anor [2009] NSWLEC 1148.

2 The owners of the tree value its benefits and do not wish to remove it.

3 The application is made under Part 2 of the Trees (Disputes Between Neighbours) Act 2006. The framework of the Act requires that the Court be satisfied of certain matters before it can make any orders, specifically at s 10(2):

(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.

4 If one of these jurisdictional tests is satisfied, and the situation has changed since the previous decision, I must consider a range of matters under s 12 of the Act before making orders as I see fit according to s 9.

Have circumstances changed since the earlier decision?

5 Fakes C heard the matter of Taylor v Guttenberg [2011] NSWLEC 1159 on 22 June 2011 and made orders for parts of the tree's crown to be pruned for the removal of dead wood every two years. The respondents undertook the first instance of pruning in September 2011. On 17 August 2012 a limb fell from the tree, damaging the Taylors' clothesline. The Guttenbergs do not dispute this. Photographs of the fallen limb were provided. This is not evidence that would have been available at the earlier hearing and is a change in material circumstances regarding the tree, thus allowing a second application to be made.

Is the Court's jurisdiction enlivened?

6 Despite the permissibility of this second application, the Act's jurisdictional tests must again be satisfied. A photograph (part of a tree report, Exhibit E) shows the fallen limb and damaged clothesline. Quotes for the clean-up and clothesline replacement were provided (Exhibits G and H). The respondents do not dispute that the limb fell, damaging the clothesline. I am therefore satisfied that the tree has caused damage to the applicant's property, enlivening the Court's jurisdiction.

The tree

7 The Wallangarra White Gum (Eucalyptus scoparia) stands in the Guttenberg's property, adjacent to their rear boundary. At the boundary there is a stone retaining wall and close to this, within the Taylors' property, there is a further drop so that the base of the tree is some 4 metres above the level of the Taylor's garden where the limb fell.

8 The tree appears to be healthy and sound and there were no signs of rootplate movement. Statements made by the parties suggest the tree was planted in this location 25-30 years ago. It is mature, approximately 17 metres tall and its stem diameter appears to be a little less than 1 metre.

9 Several limbs overhang the Taylors' property. One of these is relatively large, more than 300 mm in diameter and extends for approximately 8 metres beyond the common boundary. It has significant end-weight. Other limbs are smaller, up to approximately 120 mm diameter, and do not extend beyond the boundary as far.

The applicants' submissions

10 The applicants submit that, apart from the damage already caused, the tree is likely to cause further damage in the near future. They say limbs are unpredictable and could fall any time. They say the tree may fall over at any time, citing the example of another tree in the neighbourhood that fell recently. To support their claims they rely on a tree report by Mr Ross Jackson of Jacksons Nature Works dated October 2012.

11 The applicants also say the tree may cause physical injury. They point out that if someone had been in the garden when the limb fell in August, they could have been seriously injured.

12 The applicants say the limb fell during high winds. In their written statement (Exhibit C) they say the second applicant had moved to another part of the house on the day of the limb failure due to "...the threat from the tree in the high winds". However they disagree with the respondents' submissions regarding wind speeds on the day.

13 The applicants say that the respondents carried out pruning on 12 September 2011 but that it was not satisfactory and not in accordance with the Court's orders.

14 The applicants made extensive submissions regarding psychological injury that they say is caused by the tree. Mr Phillips, their solicitor, stated that injury is not just physical but can be mental. Because injury is not defined in the Trees Act, he took us to definitions of "injury" in the Civil Liability Act 2002, the Motor Accidents Compensation Act 1999 and the Workers Compensation Act 1987, which include references, respectively, to a person's mental condition, psychological or psychiatric injury, and psychological injury. In support of these claims the applicants rely on a report in letter format from Dr David Hughes, consultant psychiatrist, dated 19 October 2012, regarding the first applicant, and another letter from Dr Hughes, dated 13 February 2013, regarding the second applicant.

Arboricultural evidence

15 The tree report by Mr Jackson (Exhibit E) comprises 11 pages. Mr Jackson attended the applicants' property on 23 August 2012, six days after the limb fell, making observations of the fallen limb and of the tree from the ground within their property. At s 4.1.6 Mr Jackson states: "The tree exhibits good health and vigour with no visible structural defects." He identifies five limbs growing over the common boundary. He says that on 17 August 2012 there was a "...combination of gusty strong winds blowing in a number of directions."

16 Mr Jackson then spends some time on page 6 of his report explaining why it is possible that other limbs may fail, although identifies no defects in this tree that would suggest this is likely. He describes a limb failure in a tree in Gymea on 10 August 2012 and says it is possible that winds on that day weakened the limb of the subject tree.

17 Mr Jackson explains on page 7 of his report why removing more than a third of the tree's crown would affect its stability, leaving it prone to windthrow failure.

18 Despite his earlier assertion that the tree has no visible defects, in his conclusions at s 5.1.1 he states that "...there is a real threat of personal injury and property damage from the remaining live branches overhanging the property..." and at s 5.1.2 recommends removal of the tree.

Psychiatric evidence

19 In his report of 19 October 2012 (Exhibit D) Dr Hughes explains that he has provided care for the first applicant since August 2010. He describes two incidents some 20 years ago that were traumatic for the applicant. On page 3, Dr Hughes' diagnosis is of an "agitated major depressive disorder" that existed prior to the August 2012 branch failure, however he states that there was a mild relapse in August "...in the context of the branch failing onto his property."

20 In his final "Note" on page 4 Dr Hughes states (I have omitted the full name):

In respect to your specific questions regarding history and causation, whilst P's own temperament and perhaps his experience being exposed to the aforementioned traumas some 20 years earlier were predisposing factors, the situation surrounding the tree (in particular branches falling onto the property and the conflict with the neighbour over alleviating the problem) is clearly the activating event causing P's major depressive episode. In this context he has a high risk of relapse should the tree, the threat posed by the tree and the result of conflict, be ongoing.

The respondents' submissions

21 The respondents say they value the tree and the habitat it provides. They say there were particularly strong winds on the day the branch failed, with many other limbs failing in the area. They say they are not responsible for an act of God. They say they have followed the orders from the previous decision of the Court. They contend that removal of the tree would destabilise the ground at the top of the cutting at the boundary.

Other submissions

22 Both parties made submissions concerning trees on adjoining crown land and the history of communication between the parties, including versions of events and personal comments. While I appreciate that it is often inevitable that parties want to vent their frustrations in ongoing neighbourly disputes, these were generally not relevant to the matter and won't be addressed here.

Matters to consider (s 12 of the Act)

23 Before determining this application I must consider the following matters.

24 S 12(a). The tree is on the respondents' land close to the boundary. It is less than 10 metres from the applicants' dwelling.

25 S 12(b). Interference with the tree would require consent from Sutherland Shire Council under the Environmental Planning and Assessment Act 1979. Conditional consent for removal was granted to the applicants in August 2010.

26 S 12(b1). Interference with the trees would not require approval under the Native Vegetation Act 2003.

27 S 12(b2). From external observation from the ground only, the tree's structure appears to be generally sound, although deadwood and an overextended limb may fail in the near future. These appear to be the main risks. Bringing my own expertise to the matter it is my view that the risks can be appropriately dealt with by pruning. Such pruning would not be excessive and could be done in accordance with AS 4373 Pruning of Amenity Trees. Mr Jackson states in his report that removing all limbs overhanging the applicants' property would result in the loss of more than a third of the crown, and that this may destabilise the tree's root system. However there is no need to remove all these limbs. Mr Jackson has said that they show no major defects - he has only said that it is possible that limbs will fail. As Craig J described in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 "something more than a theoretical possibility is required in order to engage the power under the Trees (Disputes Between Neighbours) Act. Removing the one limb that poses the most significant risk would remove less than a third of the crown and should not adversely affect the tree's stability.

28 S 12(b3). The tree contributes to the landscaping of the land on which it is situated. It provides protection from the sun and contributes to the property's amenity.

29 S 12(c). No evidence was provided that the tree has any historical, cultural, social or scientific value.

30 S 12(d). The tree contributes to local habitat values.

31 S 12(e). The tree contributes to the natural landscape and scenic value of the land.

32 S 12(f). The tree can be seen from public land and has some value to public amenity.

33 S 12(g). Removal of the tree may have an adverse impact on the stability of the cutting near the common boundary.

34 S 12(h)(i). Strong winds contributed to the limb failure of 17 August 2012. The applicants have constructed a pergola beneath the tree's crown, increasing the risk of property damage should a limb fail.

35 S 12(h)(ii). The applicant has notified the respondent. The respondent has carried out pruning works ordered by the Court.

36 S 12(i)(i). The applicants have constructed a pergola beneath the tree's crown, increasing the risk of injury should a limb fail.

37 S 12(i)(ii). The applicant has notified the respondent. The respondent has carried out pruning works ordered by the Court.

38 S 12(j). There are no other matters that I consider relevant.

Findings with regard to damage

39 The tree has caused damage to the applicants' clothesline. The cheapest quotes for cleaning up the fallen limb and replacing the clothesline amount to $685. The applicants have taken what steps they could to prevent such damage and should be compensated. Therefore the Court will make orders for the respondents to pay compensation of $685.

40 The tree is not currently causing damage. Regarding the risk of damage in the near future, I find that the largest of the limbs overhanging the applicants' property poses a risk of damage within the next 12 months, a timeframe accepted by the Court (see Yang v Scerri [2007] NSWLEC 592) as representing the near future. Removing this limb would remove less than a third of the tree's crown. I am of the view, and none of the adduced evidence convinces me otherwise, that the remaining branches are unlikely to fail in the near future. Dead wood that develops in the crown will also pose a risk of failure. The earlier orders of the Court dealing with this shall remain in place.

Findings with regard to injury

41 As with damage to property, the pruning described in the previous paragraph would make it unlikely that the tree would cause physical injury.

42 Turning to the matter of psychological injury, which made up a large part of the applicants' submissions, I note that Dr Hughes' most recent examination of the first applicant, from which his diagnosis followed, was 23 August 2012, before the application was made and well before the hearing. Where s 9 of the Act empowers the Court to make orders to remedy, restrain or prevent damage to property as a consequence of the tree (my emphasis), with regard to injury it only allows for orders to prevent injury to any person. The jurisdiction regarding damage is past, present and future, whereas the orders regarding injury are preventative only and refer to the future. If, as the applicants claim and Dr Hughes describes, the tree contributed to the first applicant's condition as diagnosed by Dr Hughes, this has already occurred. If indeed that is injury, should they wish to seek some remedy they would need to find some other recourse for that, not the Trees Act. Regarding the risk of future injury, Dr Hughes states that the first applicant risks relapse should the threat posed by the tree, or the conflict regarding the tree, be ongoing. The threat posed by the tree must be more than imagined - it must be based on a realistic expectation that the outcome that is feared is likely to occur. Based on my own expertise and the applicants' arboricultural evidence, which found no structural defects in the tree, I find that, once the tree has been pruned, any expectation that the tree will cause injury is not realistic, even though the fear itself may feel real to its subject. Once the tree has been pruned as described above, it is unlikely to cause injury and "the threat posed by the tree" has been dealt with appropriately. Regarding any psychological injury that may be caused by ongoing conflict with their neighbours, this is not injury caused by the tree, just as injury caused by animals that may nest in a tree is not injury caused by the tree (see Immarrata v Mourikis [2007] NSWLEC 601).

Conclusions

43 The respondents' tree has caused damage to the applicants' property, enlivening the Court's jurisdiction. Compensation will be ordered for the applicants' expenses incurred in cleaning up the fallen limb and replacing their clothesline. Although the applicants have applied for removal of the tree, orders requiring less severe interference can deal with the risk of future damage or injury, while preserving a tree of value. Earlier Court orders for regular pruning to prevent the risk of damage or injury resulting from dead branches shall remain in place.

Orders

44 As a result of the foregoing the orders of the Court are:

(1) The application is upheld in part.

(2) The respondents are to pay the applicants $685 within 30 days of the date of these orders.

(3) Within 30 days of the date of these orders the respondents are to engage a suitably qualified arborist (minimum AQF level 3), with appropriate insurances, to prune the Wallangarra White Gum, removing the largest branch over the applicants' property back to its branch collar at the stem. See attached diagrams.

(4) The works in (3) are to be done in accordance with AS4373:2007 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(5) The respondents are to provide the applicants with at least three working days' notice of the works in (3).

(6) The applicants are to allow access for the works in (3) during reasonable hours of the day.

(7) Nothing in these orders amends or supersedes the provisions of the orders in Taylor v Guttenberg [2011] NSWLEC 1159.

D Galwey

Acting Commissioner of the Court

 

 

 

 

Decision last updated: 19 March 2013