Land and Environment Court New South Wales

• Medium Neutral Citation: Grosvenor & anor v The Owners Strata Plan No 85601 [2014] NSWLEC 1093
• Hearing dates: 22 May 2014
• Decision date: 22 May 2014
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Orders for pruning see paragraph [33]

• Catchwords: TREES [NEIGHBOURS] Damage to property; potential injury
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006; Uniform Civil Procedure Rules 2005
• Cases Cited: Hinde v Anderson & anor [2009] NSWLEC 1148; Yang v Scerri [2007] NSWLEC 592
• Category: Principal judgment
• Parties: D & D Grosvenor (Applicants); The Owners Strata Plan No 85601 (Respondent)
• Representation: Applicants: D & D Grosvenor (Litigants in person); Respondent: Ms Kowal (Solicitor); Respondent: Bannermans Lawyers
• File Number(s): 20105 of 2014

Judgment

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

1 COMISSIONER: The applicants' property in Roseville adjoins the rear of a block of residential flat buildings. At the rear of the respondent's property are a number of trees.

2 The applicants have applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) seeking orders for the pruning back to the common boundary of the branches of four of those trees.

3 The applicants are concerned that as the trees have a history of branch failure, both onto their property and the respondent's property, further failures pose a high risk of future damage to their property and potentially injury to anyone who may be present should a branch fail. The applicants contend that a branch from one of the trees damaged roof tiles on their dwelling.

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

5 As the applicants are concerned about future damage, the guidance decision in Yang v Scerri [2007] NSWLEC 592 has determined that the 'near future' is a period of 12 months from the date of the hearing. In regards to injury, the Court considers the risk posed by a tree in the foreseeable future based on the characteristics of the tree/s, the circumstances of the site apparent at the time of the hearing and any relevant evidence or expert opinion.

6 The four trees are all mature specimens that were retained when the respondent's property was developed some five to six years ago. Their size and species indicates they are likely to be remnants or seedlings of the original forest.

7 This judgment uses the numbering system in the applicants' diagram in the application claim form rather than the numbering used by the respondent's arborist.

Tree 1

8 The applicants are most concerned about Tree 1 - a very large Angophora costata (Sydney Red Gum). According to the applicants, in 2005, without warning on a calm day, a large limb fell from this tree into a swimming pool that was located on the land now owned by the respondent. In November 2013, another large limb in the general vicinity of the first failure, fell onto the respondent's property under similar conditions. Both failures occurred a short distance from the branch collars.

9 The applicants' dwelling is quite close to the common boundary and a portion of the Angophora overhangs a paved courtyard and part of their roof. Their concern is that should a large limb fail onto their property it could have a catastrophic impact. In their opinion, pruning that was carried out when the respondent's units were constructed has created an unbalanced canopy which has exacerbated the growth of the canopy over their property. In addition, the tree is to the west of their dwelling, and strong westerly winds blow material from the tree towards their property.

Trees 2, 3 and 4

10 Trees 2 and 4 are Eucalyptus pilularis (Blackbutt); Tree 3 is a Eucalyptus paniculata (Grey Ironbark).

11 The Ironbark is growing close to the dividing fence. Its canopy has been suppressed by the taller Blackbutts and the majority of the canopy overhangs the applicants' carport/garage.

12 The applicants state that in 2004, in windy conditions, a branch from one of these trees blew down and damaged a number of roof tiles and ridge capping on the front gable of their roof.

13 In December 2012 strong winds broke another live branch (estimated from photographs to be about 6-7m long), which landed across the pathway between the garage and the house.

14 It is unclear from which tree the branches fell however, from the photographs they appear to be from one or both of the Blackbutts (Trees 2 and or 4).

Other

15 Apart from the four trees on the respondent's property, in support of their application, the applicants also referred to the failure of another Eucalypt onto their property from another adjoining property as evidence of the unpredictable nature of branch failure in this genus. They also referred to Ku-ring-gai council's decision to prune some large Blue Gums on the nearby road because of previous branch failures.

Arboricultural reports

16 In February 2014, the respondent engaged Mr Robert Meijs, a consulting arborist, to prepare a report on the four trees. Mr Meijs inspected the trees from the ground and concluded that there were no immediate problems. He observed all trees to be healthy. Apart from removal of minor dead wood and a vine from one of the trees, in his opinion there was no need for any crown reduction or crown lifting of major branches.

17 In April 2014, the respondent's solicitor engaged Mr Meijs to reinspect the trees and prepare a report in accordance with the Expert Witness Code of Conduct in Schedule 7 of the Uniform Civil Procedure Rules 2005. On that occasion Mr Meijs engaged a tree climber to carry out an aerial inspection and take photographs from within the canopy of Tree 1.

18 Mr Meijs retains but expands the reasoning behind his original opinions. In his view, the risk of injury or damage arising from any of the trees remains low. He states that while the risk will increase in adverse weather, he opines that these trees have withstood such events in the past without any undo impact on property or persons.

19 In May 2014, the respondent engaged an arborist to remove dead wood from the trees.

The hearing and findings

20 The trees were inspected from both parties' properties; binoculars were used to enable a better view of the upper canopies.

21 With the arboricultural expertise I bring to the Court, I concur with Mr Meijs' findings. While I acknowledge the applicants' concerns, the risk of sudden limb failure is low. In regards to the four trees in question, the most predictable risk of damage or injury arises from the normal shedding of dead branches. In mature specimens of these species, this typically occurs at the ends of branches and internally.

22 Although recent removal of dead wood has been undertaken, I observed a number of branches that were missed. There is also a dead and dislodged branch caught in the branches of Tree 1 above the applicants' property. This should be removed as soon as possible.

23 I am also satisfied that live branches from T2 or T4 have fallen onto the applicants' property and that one of them caused damage to the applicants' roof. Thus s 10(2) is met for these trees. Similarly, to the extent required by s 10(2) I am satisfied that all of the trees could in the near future cause damage to the applicants' property or injury to any person as a consequence of falling dead wood.

24 As the Court's jurisdiction to make orders under s 9 of the Act is engaged, the Court must consider relevant discretionary matters under s 12.

25 All of the trees are located on the respondent's property and to varying degrees overhang the applicants' property. The trees provide considerable amenity to the respondent's property and to the public. They form part of the natural setting and contribute to the landscape character of the area. As probable remnants, they will be important to the local ecosystem and to biodiversity.

26 I note that the applicants do not wish to have the trees removed, something they stressed during the hearing. However, the extent of pruning they seek would be significant for trees 1 and 3. Given the branch architecture of Tree 1, removing branches back to the boundary would effectively necessitate pruning of very large limbs back to the main trunk. This would remove a large percentage of the canopy. This could have a detrimental effect on tree health. Creation of large wounds and making large gaps in a tree's canopy can also have unintended and detrimental structural consequences. Removal of overhanging branches from Tree 3 would result in removal of most of the tree.

27 In regards to the other trees referred to be the applicants, these are not part of the application and cannot be considered.

28 With the benefit of the site inspection and hearing from the parties, I am not satisfied that such radical pruning is required. However, orders will be made for regular removal of dead wood and other declining branches from the parts of the trees that overhang the applicants' property.

29 As naturally shed dead branches can be deflected by other branches, the orders will require the pruning to include the respondent's property within 3m of the boundary fence. The part of the respondent's property in which the trees are located does not appear to be routinely occupied and the landscape appears as a 'bush' setting to be enjoyed from the units. Therefore the risk to anyone on the respondent's property is low otherwise orders for further dead wooding would have been made.

30 Apart from the dead wood, I observed a long reaching branch from Tree 4. This is best seen from the upper rear terrace of the applicants' property. In practice, removal of dead wood from these branches becomes increasingly difficult and in the circumstances I consider it prudent to remove this branch sooner rather than later. In the circumstances, I also consider it reasonable to enable some discretion on the part of the arborist engaged to carry out the work to undertake limited crown reduction of any branches of Tree 1 directly over the applicant's dwelling. These branches will be limited to a maximum diameter of 1m at their base.

31 As is the usual practice of the Court, orders will be made requiring the applicants to provide the contractor with all reasonable access to their property so that the work can be carried out safely and efficiently.

32 As discussed in Hinde v Anderson & anor [2009] NSWLEC 1148, a fresh application can be made if the circumstances have changed since the Court determined the earlier application and there is fresh evidence.

Orders

33 The Orders of the Court are:

(1) The application is upheld in part.

(2) Within 30 days of the date of these orders, the respondent is to engage and pay for a suitably experienced AQF level 3 arborist, with proof of appropriate insurance cover, to remove all dead wood down to 40mm in diameter from all parts of Trees 1, 2, 3 and 4 that overhang the applicants' property to a distance of 3m inside the respondent's property measured from the dividing fence. In addition, any hanging branches or branches that are clearly damaged or declining, are to be removed. If in their professional opinion it is warranted, the arborist is given the discretion to reduce reaching branches of Tree 1 (Angophora) growing over the applicants' dwelling. The maximum diameter of these branches is 100mm at their base.

(3) In addition to the works in (2), the arborist is to remove or reduce to a point within the respondent's property, the long reaching branch from Tree 4 (E. pilularis).

(4) All works in orders (2) and (3) are to be carried out in accordance with the general and specific provisions of AS4373: 2007 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(5) The applicants are to provide all reasonable access on reasonable notice for the purpose of quoting and the safe and efficient carrying out of the works in (2) and (3).

(6) The orders in (2), (4) and (5) are to be carried out on each tree every two years within the month of May commencing in 2016.

________________________

Judy Fakes

Commissioner of the Court

Decision last updated: 22 May 2014