Land and Environment Court New South Wales

• Medium Neutral Citation: Kennedy & anor v Hayes & anor [2014] NSWLEC 1114
• Hearing dates: 18 June 2014
• Decision date: 18 June 2014
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application upheld in part see para [30]

• Catchwords: TREES [NEIGHBOURS] Damage to property, potential injury, compensation
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Black v Johnson (No 2) [2007] NSWLEC 513; Hinde v Anderson & anor [2009] NSWLEC 1148; Turner v O'Donnell [2009] NSWLEC 1349
• Category: Principal judgment
• Parties: Mr G & Ms K Kennedy (Applicants); Mr M & Ms R Hayes (Respondents)
• Representation: Applicants: Mr M O'Callaghan (Solicitor); Respondents: Mr M Hayes (Litigant in person); Applicants: M G O'Callaghan & Associates
• File Number(s): 20063 of 2014

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1 COMMISSIONER: The applicants have owned their two and a half acre property for over twenty years. In about 1992 they constructed a garage close to the eastern boundary fence. At that time there were many trees, including the two Sydney Blue Gums the subjects of this application, growing nearby on the adjoining property.

2 Sometime in June 2012, a branch or branches fell from one or both of the Blue Gums and damaged the garage roof.

3 The applicants had the roof repaired at a cost of $1430. The first applicant's statement of evidence indicates that about 2 hours after the roof was repaired, another branch fell from one of the trees and damaged another part of the roof.

4 According to the statement, the applicants contacted the first respondent some days after the roof had been repaired and said words to the effect of "Your trees have damaged my roof and I have arranged for an arborist to come to the property and discuss the matter." There was no request for reimbursement.

5 Gosford Council was contacted and an arborist, presumably from the council, inspected the trees.

6 According to the first respondent, after he was advised of the damage he sought council approval for the removal of the trees on the basis of damage to the applicants' garage. Council advised it had no record of the garage having been approved. In any event, removal was refused and the council approved the removal of several large live limbs that were overhanging the applicants' garage. According to the first respondent, council's approval took some time to come through.

7 The applicants' arborist, who was doing other work on the applicants' property, provided a quote for the pruning. The respondents considered this to be too expensive and obtained other quotes. In the meantime, the respondents were advised that the pruning would be carried out by the applicants' arborist at the applicants' expense. The trees were pruned in about late September/ October 2012. The first respondent considered that as the pruning had been carried out, and he was not advised otherwise, the matter had been dealt with.

8 The applicants undertook further roof repairs in December 2012 but did not advise the respondents. These repairs cost $880.

9 Since that time a number of branches appear to have fallen from the trees. There is another hole in the garage roof, which is alleged to have occurred over five months ago. Photographs in the application and statement show other dead branches against cars parked beneath the trees.

10 In August 2013, the applicants' solicitor wrote to the respondents advising them that the trees were continuing to cause damage to the garage and that unless action was taken to remove or prune the trees, the matter would proceed to the Court and that orders would be sought for tree removal and compensation for moneys spent.

11 The matter was listed for an on-site hearing on 9 May 2104. On that day, there was a medical emergency in the respondents' family and the matter was adjourned until 18 June to accommodate the applicants' travel plans.

12 The applicants have applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking either the removal of the trees or the pruning of branches back to the boundary line. They also seek compensation for the $2310 spent on roof repairs as well as the costs associated with expert reports and the filing of the application.

13 With respect to the last element of the claim, Commissioners do not have the jurisdiction to award such costs. A separate Notice of Motion must be filed, and be heard by a Judge or Registrar of the Court.

14 The key jurisdictional tests under Part 2 are found in s 10(2). This states that the Court must not make an order unless it is satisfied that any tree, the subject of the application concerned, has caused, is causing, or is likely in the near future to cause, damage to the applicant's property or is likely to cause injury to any person.

15 I am satisfied on the evidence that branches falling from one or both trees have caused, and could continue to cause, damage to the applicants' property and could potentially cause injury to anyone in the vicinity.

16 Therefore as s 10(2) is satisfied, the Court's jurisdiction to make any orders it thinks fit under s 9 of the Act is engaged. This requires consideration of matters under s 12 of the Act.

17 Relevantly:

• The trees are growing within four or so metres of the dividing fence between the parties' properties. There is no dispute that the trees are on the respondents' land. Some branches overhang the applicants' land. The garage is less than one metre from the dividing fence (s 12(a)).
• The trees are otherwise protected by Gosford Council's controls (s 12b)).
• Pruning - s 12(b2)) - see [18]- [22] below.
• The tress are locally occurring species and will contribute to the local ecosystem and to biodiversity, in particular the abundant bird life in the locality (s 12d)).
• The trees are part of the natural canopy of the locality; the parties' properties are small acre blocks in a bushland setting. Therefore they do contribute to the natural landscape and scenic value of the respondents' land and to the locality.
• Actions of the parties (s 12(h)). (see [23] - [26] below).

18 The applicants seek either the removal of the trees or all branches back to the boundary. The majority of the fallen branches appear to have been dead, including the branches that caused the damage. There have been occasional small diameter branches that have blown down in windy conditions.

19 The applicants provided two arborist's reports. The first by Mr Michael Gow dated 8 October 2103, advises that a ground level inspection of the trees showed the trees to be healthy with no obvious structural defects. Mr Gow also notes the natural tendency of lower limbs to die and fall off. Despite these observations, Mr Gow advised the applicants to prune all limbs to the property line or remove the trees.

20 The applicants also engaged Mr Russell Kingdom to inspect and report on the trees. He also undertook an inspection from ground level on 2 May 2014. Mr Kingdom considers the trees to be in fair health but because of a number of what he opines are structural defects comprising old epicormic shoots, production of kino, reaction wood, wounds in scaffold branches, and previous branch failures, he assigns a Safe Useful Life Expectancy (SULE) of 4.This means - remove tree within 5 years because of structural defects. In his opinion, the trees have had extensive canopy lifting resulting in only the upper canopies remaining. He considers continual crown management will not be compliant with AS4373: 2007 Pruning of Amenity Trees. He recommends removal of the trees.

21 With the expertise I bring to the Court, I also observed the trees from ground level. In my opinion the trees are healthy but contain a normal load of dead wood of a range of sizes. I saw no structural defects that would lead me to the conclusion that failure of any part of the trees, apart from the predictable failure of dead wood and small green branches in high winds, is likely to happen in the foreseeable future. On the strength of his observations, Mr Gow's recommendations have no basis. In my view, Mr Kingdom's conclusions about the SULE of the trees are ultra conservative in the circumstances.

22 Therefore I disagree with the arborists that removal is warranted at this stage. With respect to removal of branches back to the boundary line, this cannot be supported on arboricultural grounds. However, as stated above, the failure of dead wood is predictable. By all accounts, the trees were not dead-wooded when the large overhanging branches were removed in 2012. While I consider removal of dead wood would probably only be required every two years, I am content to take a cautious approach and order annual removal of dead branches 40mm or more in diameter at their base. The removal of dead wood will have no detrimental impact on the trees if it is carried out in accordance with AS4373. Removal of the overhanging branches would not necessarily abate the risk of small green branches being blown onto the applicants' property in strong winds. The small branches I observed on the ground are unlikely to cause significant problems.

23 The applicants have taken steps to prune the trees, something the respondents considered appropriate. In regards to the compensation, the respondents were not informed of the damage when it occurred nor was any request made for reimbursement at the time. Therefore, the respondents were denied the opportunity to seek alternate quotes (see Turner v O'Donnell [2009] NSWLEC 1349). Although the respondents were notified after the first event, they were not asked to contribute to later repairs in 2012.

24 I also note the Tree Dispute Principle published in Black v Johnson (No 2) [2007] NSWLEC 513 at [15] concerning "the tree was there first". The principle states:

The existence of a tree prior to the construction of a structure which has subsequently been damaged by the tree is not a matter likely to be taken into consideration on the question of whether or not some order should be made for interference with or removal of that tree or other remedial work. On that question, the seriousness of the damage and any attendant risks are the primary matters for consideration.If interference with or removal of the tree or other work is warranted because of the extent of the damage the tree has caused or risks now posed by the damage, the fact that the tree was already growing in the vicinity at the time the structure was built is a matter which may be relevant and appropriate to take into account on the question of who should undertake any work and/or apportionment of the cost of such work. However, it will also be relevant to consider whether or not the tree was self-sown or was planted. If it was planted, consideration will need to be given to the appropriateness or otherwise of:

* the type of tree planted; and

* the suitability of the location in which it has been planted.

Equally, it will be relevant to consider whether the choice of location for the structure was unnecessary or avoidable or, on the other hand, if it would have been an unreasonable constraint on the development potential of the site had the existence of the tree limited that potential.

25 The trees appear to be self-sown and acknowledged to have been present, albeit smaller, when the applicants built their garage and parking area beneath them. In effect, the applicants have come to the nuisance. I don't accept Mr O'Callaghan's submissions that the applicants shouldn't reasonably have been aware of the size the trees would attain, given the applicants' property is surrounding by tall eucalypt forest. The applicants have a large property. Recently another shed was built elsewhere on their property, apparently away from large eucalypts. Therefore, it would appear that the damage to a large extent was avoidable, and to some extent, still is as cars could be parked elsewhere on the property.

26 For these reasons I do not propose to make orders for compensation for the money spent on the earlier roof repairs. However, I am satisfied that from August 2013, the respondents were aware of the further damage and the likelihood of a claim for compensation. Therefore I propose to order a payment of up to $500 for the repair of the most recent damage.

27 During the hearing I was informed that in the period between the initial and resumed hearings, the respondents put their property on the market and it has been sold. The first respondent informed me that the new owners are fully and contractually aware of the Tree Application. Section 16(1) of the Act concerns successors in title and states:

(1) If the Court makes an order under Part 2 requiring a person who is an owner of land on which a tree is situated (an original owner) to carry out work in relation to the tree within a specified period and the original owner ceases to be the owner of the land before the work is carried out, a successor in title to the owner:

(a) is required to carry out that work, and

(b) to that extent, is bound by the order in the same way as the original owner (except as provided by this section).

28 Relevantly, sections 16(2) and 16(3) state:

(2) The successor in title is bound by the order only if the applicant for the order, or the immediate successor in title of the applicant who is entitled to the benefit of the order under section 16A gives a copy of the order to the successor in title.

(3) For the purpose of this section the specified period within which the work is required to be carried out under the order is commence from the date on which the copy of the order is given to the successor in title.

29 As discussed in the matter of Hinde v Anderson & anor [2009] NSWLEC 1148, should the circumstances change, and there is new evidence, it is possible for a fresh application to be made.

30 Therefore after considering the evidence and hearing the parties' submissions, the Orders of the Court are:

(1) The application is upheld in part.

(2) Within 30 days of the date of these orders, and preferably before the date of settlement, the respondents are to engage and pay for an AQF level 3 arborist to remove all dead wood > 40mm in diameter at its base from the Sydney Blue Gums the subject of this application. The dead wood is to be removed from all parts of the trees which overhang the applicants' property to a distance of at least 4m inside the respondents' property measured from the dividing fence. The distance is to be not less than the western side of the trunk of tree 2 (the northernmost tree).

(3) In that time, should the new owners have taken possession of the respondents' property, the respondents are to advise the new owners of the need to provide any necessary access for the purpose of quoting and undertaking the works in (2).

(4) The works in (2) are to be carried out in accordance with AS4373: 2007 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(5) The applicants are to provide reasonable access on reasonable notice for the purpose of quoting and the safe and efficient carrying out of the works in (2).

(6) After the initial removal of dead wood, the pruning works in (2) and the processes in (4) and (5) are to be carried out on an annual basis every June commencing in 2015 until such time as each of the trees is removed.

(7) Within 6 months of the date of these orders, the applicants are to have the roof of their garage repaired otherwise order (8) lapses.

(8) Within 21 days of the receipt of a tax invoice for the completed works in (7), the respondents are to reimburse the applicants a sum of up to $500. The respondents are to advise the applicants' solicitor of their forwarding address within 30 days of the date of these orders.

__________________________

Judy Fakes

Commissioner of the Court

Decision last updated: 19 June 2014