Land and Environment Court New South Wales

• Medium Neutral Citation: Owners Corporation SP 75600 v Hsu [2011] NSWLEC 1235
• Hearing dates: 12 August 2011
• Decision date: 12 August 2011
• Jurisdiction: Class 2
• Before: Pearson C; Galwey AC

Decision

Application upheld in part

• Catchwords: TREES (NEIGHBOURS); damage to property; risk of injury; tree pruning and removal ordered.
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Barker v Kyriakides [2007] NSWLEC 292; Yang v Scerri [2007] NSWLEC 592
• Category: Principal judgment
• Parties: Owners Corporation SP 75600 (Applicant); Tien Chun Hsu (Respondent)
• Representation: Ms Pam McKiernan (Agent for the applicant); Mr Kenneth Lin (Agent for the respondent)
• File Number(s): 20203 of 2011

Judgment

Introduction

1 This is an application pursuant to Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by the Owners Corporation SP 75600 of a property in Baulkham Hills against the owner of trees growing on an adjoining property.

2 The applicant seeks removal of one tree and pruning of two trees on the basis that they have caused damage and are likely to cause further damage, and pose a risk of injury.

3 The respondent wishes to retain the trees, although stated he would "reluctantly allow" the removal of one tree and pruning of the others at the applicant's expense.

4 The Tree Dispute Claim Details (Damage to Property or Injury to a Person) form accompanying the application provided details of damage to property (Questions 4-8), and likelihood of injury (Questions 9-13). Leave was given to the applicant to amend the application to specify in response to Question 1 of that form, that both damage to property and injury to any person were the basis for the application.

5 We note that the numbering of the trees in the application is confusing with regard to their locations. On one plan they are numbered T2, T3 & T1 but are not accurately located. On another plan they are located accurately but are not numbered. For this reason we shall refer to the trees as Tree A, Tree B and Tree C, in order from the front (northwest) to the rear (southeast).

Onsite hearing and evidence

The situation

6 The hearing took place onsite, allowing for inspection of the relevant issues. We began with an inspection of the three trees.

7 The respondent's dwelling is set well back from the road with access provided by a battleaxe driveway perhaps 90 metres in length. The three trees grow along this driveway between its unsealed surface and the fence on the north-eastern boundary. They are 1-3 metres from the boundary.

8 There is a multi-dwelling development to the northeast of the battleaxe driveway, and the ground in that property adjacent to the common boundary is considerably lower than the respondent's property.

9 The respondent's evidence was that he has lived at his property for around 12 years. His dwelling is more than 40 years old. There have been no significant changes on his property in the vicinity of the trees during the last 12 years. The respondent's evidence was that the multi-unit development on the northeast of the battleaxe driveway was completed around 12 years ago.

10 The applicant's evidence was that the nine-unit development on the applicant's property, to the southwest of the battleaxe driveway, was completed in the second half of 2005.

The trees

11 From the northwest, the first of the three trees (Tree A) is a Eucalyptus microcorys (Tallowwood) approximately 17 metres tall. Based on observations from the view, it is in good health. Its crown extends slightly over the units on the applicant's property. The crown contains minor deadwood and there are no obvious structural defects. The tree is close to Tree B so that their crowns form a single canopy of foliage.

12 The second tree (Tree B) is the largest of the three trees. It is a Eucalyptus saligna (Sydney Blue Gum) 25-30 metres tall and, based on observations from the view, is in good health. It is approximately eight metres from unit 4 of the applicant's property and overhangs two or three of the dwellings there. The crown has no major defects but some minor deadwood is present, which is typical for such a tree. The tree forks into three main stems between one and two metres above the ground. The forks are wide and well-formed with no signs of included bark. There are no signs of root disturbance or root-plate instability.

13 The third tree (Tree C) is further to the southeast and is physically separate from the first two. This Eucalyptus punctata (Grey Gum) is approximately 22 metres tall. Based on observations from the view, it is in poor health, displaying recent dieback throughout its entire crown. The applicant's evidence was that this tree has declined rapidly over the last 12 months. There is observable deadwood throughout the crown due to this dieback. At approximately five metres height there is a narrow major fork in the stem. The fork contains extensive included bark. Wounding and decay is evident at and around this fork. We are satisfied that the combination of included bark and decay results in a high risk of failure, and that should failure occur, up to a quarter of the tree's crown would fall, including a long section of stem, carrying with it a high risk of injury.

Evidence of damage and risk of injury

14 We were taken to the courtyards of three units that adjoin the common boundary along the battleaxe driveway: units 3, 5 and 6; and to the visitor carpark adjoining other units at the rear of the site.

15 Residents at each of these three units described the limbs and debris that have fallen from the three trees.

16 The owner of unit 3 gave evidence that many limbs have fallen over recent years. Most are small but there have been up to six larger limbs, for instance up to 15 cm diameter, fall over the last six years. Some have been dead and some have had live foliage on them. Limbs have mostly fallen during strong winds. Several broken roof tiles have been replaced, most recently about six months ago. Small twigs and foliage fall every day.

17 The owner of unit 5 gave evidence that small debris falls every day. Larger branches have fallen and broken roof tiles. Dead limbs and live limbs have fallen. A limb approximately five cm in diameter fell about one month ago. A limb about 15 cm in diameter fell during a storm before Christmas last year.

18 The owner of unit 6 gave evidence that no large limbs have fallen here but she is concerned about the risk of falling limbs from Tree C, which she is closest to, as it has a lot of deadwood in its crown. The trees drop debris into the courtyard.

19 Photographs accompanying the application show fallen branches apparently from Tree B. The applicant's evidence was that photographs P1 and P5 show a live branch that fell into the courtyard of unit 4 during the storm before Christmas last year. Photograph P2 shows a limb that fell onto the roof of unit 5 during the same storm. Photographs P3 and P4 show small live limbs that fell into the courtyard of unit 5 during the same storm.

20 Based on the photograph, we find that the limb in photographs P1 and P5 was alive, long, about 10 cm in diameter, and we are satisfied that it would have had sufficient weight to cause injury or to damage roof tiles.

21 The owner of unit 5 stated that there had been a blockage in sewer pipes of that unit last year. A plumber repaired the pipes and carried out associated works. The application to the Court included an invoice for those works (Bradon Plumbing, 17 May 2010), which included an item for cutting a clump of roots from the pipes. On our reading, the invoice suggests that there may have been other causes for the damage, such as damage that occurred at the time of initial construction. Furthermore, there are several trees in the vicinity but the roots in the pipe were not identified and it is not known to which tree they belong. In those circumstances, we are unable to be satisfied that any of trees A, B or C caused the damage to the plumbing.

Applicant's submissions

22 Apart from the evidence described above, the applicant submitted that the ages of the residents in the complex, and the fact that many of them have grandchildren who come to visit, is a relevant factor to take into account. The applicant indicated that it may be appropriate for the applicant to share some of the cost of work to the trees, however there are nine owners in the complex. The applicant submitted that any work to the trees should be carried out as soon as possible.

Respondent's submissions

23 The respondent stated that the trees are a part of his garden landscape and that they attract and provide habitat to birds and other native wildlife. The trees were there before his house was built and they were already large mature trees when the units on the applicant's land were constructed. The respondent submitted that he would reluctantly allow one tree to be removed and/or the trimming of all three trees, no more than 15 percent which the council had approved, at the expense of the applicant. The respondent stated that the applicant should bear the cost of any work to the trees; the owners of the complex on the northeast trim the branches on their side, with his consent. He would need considerable time if required to organise and pay for work to the trees.

Jurisdiction

24 For the Court to make any orders regarding a tree it must be satisfied that the tree meets at least one of the tests under s 10(2) of the Act: namely, (a) it has caused, is causing, or is likely in the near future to cause, damage to the applicant's property, or (b) that it is likely to cause injury to any person. These tests must be applied to each tree that is part of the application.

25 In Yang v Scerri [2007] NSWLEC 592, the Court found that 12 months was a reasonable time to be considered as the 'near future'. We can see no reason to consider differently here.

26 With regard to the roots found in a sewer pipe, and damage that they may have caused, those roots were never identified. In considering each tree in turn, we cannot know if its roots had been in the pipe or caused damage, so cannot make orders on those grounds.

27 Several unit owners mentioned the smaller debris that falls from the trees and requires regular cleaning up. We are satisfied that the principle in Barker v Kyriakides [2007] NSWLEC 292 applies, and that reasonable maintenance is expected for those who enjoy the benefits of trees in an urban environment. Reasonable maintenance includes the cleaning up of flowers, gumnuts, leaves and twigs.

28 Considering Tree A, there is only minor deadwood present in the crown and this is not over any area of high use. No evidence was provided that large limbs had fallen from this tree or that the tree had caused damage or that it is likely to cause damage in the near future. There are also no signs that large limbs, either dead or alive, are likely to fall from the tree and cause injury. We are not satisfied that either of the requirements of s 10(2) is met, and accordingly the application regarding Tree A is dismissed.

29 We are satisfied, based on the oral evidence and the photographs, that limbs that fell from Tree B caused damage to some roof tiles. We accept the oral evidence that at least six large limbs have fallen in the last six years, on average one a year, and on that basis we are satisfied that it is likely another such limb will fall in the near future and cause damage. We are also satisfied, considering the size of limbs that have fallen and the extent of the crown over the units' courtyards, that there is a risk of injury. As a consequence, we can make orders regarding Tree B.

30 Turning to Tree C, we are satisfied based on the evidence on the view that there is a considerable amount of deadwood in the crown, and that when it falls it may cause injury. The tree also has a major structural fault that may result in the failure of a quarter of its crown. Such failure would have a high probability of causing injury as it may fall onto the property to the northeast or onto the respondent's property. Therefore the Court can make orders regarding Tree C.

31 The Court is not obliged to make the orders that are sought, but can make orders as outlined in s 9, considering the matters listed in s 12 of the Act.

Discretion

32 Turning to s 12, which lists the matters to be considered by the Court, we regard the relevant matters to be:

(a) location of the trees: the trees are located entirely on the respondent's land.

(b2) the impact any pruning would have on the tree:

-pruning Tree B to reduce risk of falling limbs would not in our opinion adversely affect its health, form or structure, nor would it shorten its expected lifespan.

(e) -pruning Tree C to reduce the risk of deadwood falling and failure of the weak fork would in our opinion leave insufficient crown for the tree to remain viable.

(b3) any contribution of the tree to privacy, landscaping, or amenity of the land on which it is situated: the trees contribute to the landscaping and amenity of the respondent's land.

(d) any contribution of the tree to the local ecosystem and biodiversity: the trees are native and in our opinion contribute to the local ecosystem and to biodiversity.

(f) any contribution of the tree to the natural landscape and scenic value of the land or locality: the trees contribute to the scenic value of the respondent's land, and to the locality generally.

(g) intrinsic value of the tree to public amenity: the trees can be seen from the street, especially Tree B, and we are satisfied that they contribute to public amenity.

33 Having regard to these factors, our conclusion is that Tree B, the large Sydney Blue Gum, is visually significant in the landscape, is in good health, has no major defects and a long expected lifespan. The tree was present when the units were built in close proximity. Following pruning to remove deadwood and some minor crown reduction, we are satisfied that the potential for injury would be reduced to the point where potential damage to property or risk of injury to any person would not warrant the removal of the tree.

34 Pruning Tree C cannot, in our opinion, sufficiently reduce the risk of injury while retaining a viable tree. It would be inappropriate to remove half the crown of the tree for hazard reduction when the tree's rapid decline suggests there will only be further dieback, and large deadwood, in the near future. We are satisfied that it is appropriate to make orders for the removal of this tree, although we note that it was Tree B for which the applicant sought removal.

35 In considering who should pay the cost of undertaking the work required to prune Tree B and remove Tree C, we are satisfied that neither the applicant nor the respondent has done anything to contribute to any decline in health of Tree C, or to the risk of parts of Tree B falling and causing damage to property or injury to any person. The trees are entirely located on the respondent's land. We are satisfied that it is appropriate to require the respondent to undertake the work required at his cost.

Orders

36 Considering all of the foregoing, the orders of the Court are:

(1) The application is upheld in part.

(2) The application to prune Tree A is dismissed.

(3) The respondent is to engage and pay for an arborist, with a minimum AQF level 3, to prune Tree B to remove all deadwood over 30 mm in diameter, to remove the two lowest long limbs to the southwest over the applicant's property, and to reduce other limbs on the south-western side by no more than 20%.

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

(5) The respondent is to engage and pay for an arborist, with a minimum AQF level 3, to remove Tree C to no more than one metre above ground level, in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(6) The works in (3) and (5) are to be completed within 90 days of the date of these orders.

(7) The removal of deadwood greater than 30 mm in diameter from Tree B is to be carried out in accordance with (4) every two years within 14 days either side of the date of these orders.

Linda Pearson

Commissioner of the Court

David Galwey

Acting Commissioner of the Court

Decision last updated: 15 August 2011