Land and Environment Court New South Wales

• Medium Neutral Citation: Fraser v Fitzhenry [2011] NSWLEC 1214
• Hearing dates: 5 July 2011
• Decision date: 05 July 2011
• Jurisdiction: Class 2
• Before: Hewett AC

Decision

(1)The application to remove the tree is upheld.

(2)The respondent is to engage and pay for an AQF level 3 arborist with the necessary insurances, to remove the Casuarina tree to a maximum stump height above ground of 500mm.

(3)The work in (2) is to be completed within 30 days of the date of these orders.

(4)To the extent that it is necessary to undertake the work in (2) in a safe and expedient manner, the applicant is to provide the respondents contractors all reasonable access to her property provided the respondent gives at least 36 hours notice.

• Catchwords: TREES [NEIGHBOURS] - damage to property - injury to persons
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Category: Principal judgment
• Parties: T Fraser (Applicant); D S Fitzhenry (Respondent)
• Representation: Counsel; Ms Oldfield (for the Applicant); D S Fitzhenry (Respondent in person)
• File Number(s): 20296 of 2011

Judgment

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

1 This is an application pursuant to s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Cowdroy Avenue, Cammeray against the owner of tree growing on an adjoining property.

2 The applicant seeks orders for the removal of the respondent's tree as she contends that the tree is at risk of falling and that should it fall it would damage her house and likely injure persons on her property who use the side path and entrance to the main living, dining and kitchen area of the house.

3 In addition to orders for the removal of the tree to be paid for by the respondent, the applicant seeks orders requiring the respondent to provide one weeks notice prior to accessing her property, and orders to prevent the respondent from entering her property. A further order is sought to permit the applicant to supervise the access of the arborist if she wishes.

The site and the hearing

4 The applicant was represented at the onsite hearing by Ms Oldfield.

5 Mr Hugh Taylor and Ms Julia Sullivan, consulting arborists for Australian Tree Consultants Pty Ltd accompanied the respondent at the hearing. They jointly prepared an expert witness report tendered with the respondents evidence bundle (Exhibit 1).

6 The applicant's evidence bundle included an expert witness report prepared by consulting arborist Mr Mark Kokot of Rain Tree Consulting (Exhibit A).

7 The tree is a semi-mature Swamp Oak ( Casuarina glauca ) situated at the edge of the respondent's driveway and about 2 m from a brick retaining wall that defines the boundary between the two properties. It is one of a number of substantial trees closely planted to form a forest like grove on the western side of the respondent's property. Many of the surrounding trees are maturing eucalyptus species that overshadow the Casuarina. As a consequence of the overshadowing of the taller trees, the Casuarina has grown toward the only accessible light source to the northwest. A consequence of this growth habit is that the crown now extends above and partly over the roof of the applicant's two-storey building, pathway and side entry and also above the respondents garage.

8 In 2005 the applicant had the respondent's tree pruned in order to remove branches that were in contact with her electricity supply cable and to remove branches touching her roof. The result of this pruning was that many of the trees secondary branches were removed. The applicant contends that since the 2005 pruning, the tree has grown considerably larger, extending its centre of gravity further from its base. She also contends that the tree has developed more pronounced lean and extensive longitudinal splits.

9 The respondent contends that the tree is robust and stable in the ground and that it was a mature and robust tree well prior to a series of developments that have taken place on the applicants land.

10 The respondent submits a letter (Exhibit 1) from North Sydney Council that states that on the basis of the report prepared by Australian Tree Consultants Pty Ltd, the Council is satisfied that the tree is not an immediate safety risk and Council will not be pursuing its removal further.

The Arborist's Evidence

11 Mr Kokot inspected the tree in March 2011 and prepared a report in which he agreed to be bound by Schedule 7 of the Uniform Civil Procedure Rules 2005. I am satisfied that his report meets the requirements of s 5 Experts' reports.

12 Mr Kokot estimates the tree height to be 17 m and the trunk diameter to be 300mm at 1.4 m above grade. He says the tree is in good health but in poor structural condition. He noted the lower to mid trunk has a slight lean to the north, with the lean increasing from 15 to 30 degrees at mid trunk, then increasing to a severe lean in the upper trunk of 30 to 45 degrees.

13 Mr Kokot identified longitudinal splits in the trunk beginning at near ground level and extending up to 6 m on the compression side of the trunk. He thought the trunk splits might be a result of torsion fractures caused by mass loading pressures. He says he could not assess the other side of the trunk as his observations were made only from the applicant's property.

14 In the trees upper trunk Mr Kokot observed " several trunk splits with well developed reaction wood or reactive wound wood margins evident at 5m to the north ". He noted the " lowest northern limb contains torsion fractures near the main branch junction of the supporting trunk ". He says the splits in the branches and the trunk indicate structural fracturing caused by bending stress as a consequence of " strong branch movement/swaying during adverse weather condition ". He concludes that the structural integrity of the tree is compromised and recommends " remedial action or removal ."

15 In May 2010, the respondent commissioned Australian Tree Consultants Pty Ltd to report on the Casuarina tree and on a Brush Box tree on his property.

16 In June 2011 the respondent advised Australian Tree Consultants that he would be submitting their May 2010 report as an expert witness report in response to his neighbour's Court application.

17 On 28 May 2011 Mr Taylor and Ms Sullivan made a second assessment of the Casuarina tree.

18 On 9 June 2011 they wrote to the respondent stating that they agreed to be bound by the provisions of Schedule 7 Expert Witness Code of Conduct under the Uniform Civil Procedure Rules 2005.

19 On their second assessment Mr Taylor and Ms Sullivan concluded in the following terms:

In our opinion, the general condition, (health and structure) of the tree has not declined within the intervening twelve months between inspections. The tree has remained in a fair condition of health and structurally stable at the time of inspection. We believe that there were still no indications that collapse of the tree was imminent, predictable nor could it be considered dangerous.

20 In their report of May 2010, Mr Taylor and Ms Sullivan estimated the height of the tree to be 18 m and the trunk diameter 350 mm although they did not indicate where they measured the trunk diameter. They estimated the trunk had a 30-degree lean to the north due to light competition. They noted that the trunk bifurcated at 8 m above ground level. They noted the tree had an asymmetrical canopy with little secondary branching. They observed " growth splits and reaction wood deposits on the north side of lower trunk ".

21 Mr Taylor and Ms Sullivan reported the tree as "... growing on a phototrophic (sic) lean towards the north " due to competition for light from other trees. They formed the opinion that, " This form of splitting is readily seen in this species of tree and is associated with rapid growth and splitting bark. It is of little concern and is not seen as a structural defect ".

22 Later in their report they give a different opinion on the cause of the growth splits, saying " the splitting on the northern side of the trunk is most probably a reaction to the lean and the pressure exerted by downward force and recent rainfall ".

23 In their letter of 9 June 2011 (Exhibit 1) setting out their conclusions following their second inspection, Mr Taylor and Ms Sullivan say, " we believe that there were still no indications that collapse of the tree was imminent, predictable nor could it be considered dangerous ".

24 Although they agree in their letter of 9 June 2011 to be bound by Schedule 7 Expert Witness Code of Conduct under the Uniform Civil Procedure Rules 2005, Mr Taylor and Ms Sullivan give no detailed explanation of the facts and assumptions that they make in reaching their conclusions as is a requirement clearly set out under s 5 (1) of Schedule 7.

25 As a consequence their report contains for the most part, unsubstantiated opinion and I am not persuaded to give weight to their opinions in this matter.

The Site Inspection and hearing

26 During the site hearing I inspected the tree from both properties. I noted that the trunk was extremely slender relative to the overall height of the tree. Trunk slenderness in a significantly leaning tree of 18 m height and less than 350 mm trunk diameter is a matter of importance in assessing the stability of such a tree.

27 At the site hearing I asked Mr Taylor if he wished to comment on the tree height relative to the trunk diameter. He said he saw nothing to concern him.

28 The day of the site hearing was very windy and I observed the manner in which the crown of the tree was buffeted to such an extent that at times it swayed considerably over the applicant's roof and pathway. As a consequence I am not persuaded by Mr Taylor and Ms Sullivan's assertion that if the tree were to fall (a possibility that Mr Taylor denied at the hearing) it would necessarily fall onto the respondent's garage roof and not on the applicants building or pathway.

29 The applicant agrees that the tree also overhangs the respondent's garage and she says that the only access to the respondent's house is through the garage and therefore she believes that persons entering and exiting both properties are at risk from the tree.

The jurisdictional tests

30 Under s 10(2) of the Act, the Court must not make an order unless it is satisfied that the tree 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.

31 On the evidence of Mr Kokot, and my own observations of splitting and fractures in the excessively leaning trunk and branches of the tree, I am satisfied that the tree is at increasing risk of failure and is likely in the near future to cause damage to the applicants property. I am also satisfied that the tree is likely to cause injury to persons, and therefore as two of the tests in s 10(2) are met, the Court has jurisdiction to make orders.

32 However, in considering what orders are appropriate in the circumstances, the Court must consider a number of matters under s 12 of the Act. Relevant in this case are the following clauses:

(a) the tree is situated wholly on the respondent's land.

(b2) the respondent said he had no objection to the tree being pruned back to the property line. I asked Mr Taylor for his views on such pruning, in the event that the Court was minded to order such pruning. He said pruning would have to be undertaken in accordance with proper practice and not as lopping. He said he thought pruning was not necessary at the present time. On the evidence of Mr Kokot, which I prefer to that of Mr Taylor and Ms Sullivan, and on my own observations, I am of the opinion that pruning would weaken the tree and increase the risk of injury to persons on both properties.

(d) the respondent says he values the tree highly for its important contribution to the local ecosystem and biodiversity. I agree that the tree makes a contribution although I would characterise that contribution as minor in the local context in view of the density and diversity of native vegetation in the immediate area.

(i) (ii) with the consent of the respondent and North Sydney Council, the applicant had the tree pruned in 2005. I am satisfied that this pruning has not alleviated the risk of property damage or of injury to persons.

33 As a consequence of the foregoing, the orders of the Court are:

(1) The application to remove the tree is upheld.

(2) The respondent is to engage and pay for an AQF level 3 arborist with the necessary insurances, to remove the Casuarina tree to a maximum stump height above ground of 500mm.

(3) The work in (2) is to be completed within 30 days of the date of these orders.

(4) To the extent that it is necessary to undertake the work in (2) in a safe and expedient manner, the applicant is to provide the respondents contractors all reasonable access to her property provided the respondent gives at least 36 hours notice.

Philip Hewett

Acting Commissioner of the Court

Decision last updated: 25 July 2011