Land and Environment Court New South Wales

• Medium Neutral Citation: Zhou v Hobbs [2011] NSWLEC 1275
• Hearing dates: 14 September 2011
• Decision date: 20 September 2011
• Jurisdiction: Class 2
• Before: Galwey AC

Decision

1.The application for compensation is dismissed.

2.The application regarding the tree is upheld.

3.The respondent is to engage and pay for an arborist, with a minimum AQF level 3 and appropriate public liability insurance, including for damage to underground services, to remove the fallen stem and all its branches and foliage and to remove the remainder of the tree including all three remaining stems and their crowns to no more than 200mm above ground level. The stumps are to be poisoned immediately they are cut.

4.This work is to be done in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.

5.The respondent is to give the applicant seven days notice of the works.

6.The applicant is to provide access to his property for the works to be carried out during reasonable hours.

7.The works in (3) are to be completed within 30 days of the date of these orders.

• Catchwords: TREES [NEIGHBOURS]; damage to property; removal ordered; compensation refused.
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Robson v Leischke [2008] NSWLEC 152; 72 NSWLR 98; 159 LGERA 280
• Category: Principal judgment
• Parties: APPLICANT; C Zhou; RESPONDENT; M Hobbs
• File Number(s): 20437of 2011

Judgment

1 ACTING COMMISSIONER: This is an application pursuant to Part 2 of the Trees (Disputes Between Neighbours) Act 2006 ( the Act ) by the owner of a property in Copeland Road, Beecroft, against the owner of a tree growing on an adjoining property.

2 The applicant seeks orders for the removal of a fallen section of the neighbouring tree, for compensation for the cost of repairing a fence, and for compensation of legal costs and court fees.

3 In regard to the last order sought, Commissioners of the Court do not have the power to award costs.

Evidence and submissions

Events

4 One stem of a tree growing on the respondent's land fell during a storm on or about the evening of 31 October 2010.

5 The stem and its crown fell across the applicant's property. The crown came to rest on a small tree and a lattice fence in a property in Eildon Lane that adjoins the applicant's property.

6 The stem remained suspended above the lower land of the applicant's property, supported at either end on the higher land of two adjoining properties.

7 At this time, the applicant's property had not suffered any damage.

8 The SES attended the site and made the area safe by putting warning tape around the danger area. The stem remained suspended and the applicant's property had suffered no damage.

9 The tree owner contacted the applicant and offered to remove the stem if the applicant would pay for half the cost of its removal.

10 The applicant's position was that the tree owner should pay for its removal. The applicant also wanted assurance that he would be compensated for any damage caused to his property by heavy machinery such as a crane during the removal of the tree.

11 Both parties held the positions described above and did not agree on terms of payment or access.

12 The tree remained suspended thus for almost three weeks.

13 On 18 November 2010, the tree owner states that he saw two people enter the applicant's property and cut the end branches off the tree. These branches rested on the lattice fence in the Eildon Lane property to the north of the applicant's land and held the tree above the applicant's garden. This resulted in the tree falling onto and damaging two panels and a post of an aluminium fence within the applicant's garden.

Extent of damage

14 The onsite hearing began on the applicant's property. The fallen stem still lies across the land.

15 The applicant pointed out the damaged fence. Both panels that have detached from the fence appear to be in the same condition as remaining panels of the fence. They do not appear to be damaged in any significant way. The fence has been in place for many years and is no longer in new condition. It appears that brackets attaching these two panels to fence posts broke when the tree stem landed on the fence, causing the two panels to come free. The fence post between the two panels is bent beyond repair. The fence posts at the other ends of the two panels appear to be intact.

16 The applicant obtained two quotes for repairs to the fence: $1,100 and $1,166. Both quotes included the cost of new fence panels.

The tree

17 The stem that fell was one stem of a multi-trunked tree. The tree is an 18 metre tall Coral Tree ( Erythrina sp.) that is located on the respondent's land near the common boundary with the applicant's land.

18 The tree was inspected from both the applicant's property and the respondent's property.

19 From ground level, the tree has three main stems. The most northern of these had a narrow fork at approximately two metres above ground. That fork failed during the storm, resulting in the stem and crown above it falling across the applicant's garden.

20 Although the fork that failed was narrow and contained some included bark, when viewed from the respondent's land the fork appears relatively sound and there was no sign, especially to the layperson, that the fork posed a risk of failure. No evidence was put forward suggesting the tree had visible signs of a pre-existing weakness that would have alerted its owner to the need for professional assessment. Viewed from the applicant's property, the included bark in the fork was more apparent; however the applicant had never brought any concerns regarding the tree to the respondent's attention.

21 Two of the remaining three stems grow on an angle and extend over the applicant's garden. The northern one has a large wound left from the recent fork failure, creating a weak zone. It poses a high risk of damage or injury in the near future. Removal of only one or two stems would leave the remaining stem or stems exposed to greater windloads and at risk of failing.

Jurisdiction

22 According to s 10(2) of the Act, to make any orders the Court must first be satisfied that the tree 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.

23 If satisfied of this, the Court can make any orders it sees fit as described in s 9 of the Act, considering the matters listed in s 12 of the Act.

24 The fallen stem damaged the applicant's fence when it landed on the fence.

25 The respondent contends that the damage was caused by the two unidentified people who cut the branches on 18 November and was therefore not caused by his tree.

26 The Act at s 10 (2) only states that the Court must be satisfied that the tree concerned has caused damage. It does not differentiate between whether the tree fell as a result of a storm event or due to personal interference. There is no question that the tree has caused damage to the fence. Therefore, one of the tests under s 10(2)(a) has been met. The issue of who or what caused the stem to fall onto the fence can be dealt with under the matters to be considered in s 12 of the Act.

Matters to be considered

27 I am required to consider the following matters in s 12:

(a) The tree was situated entirely within the respondent's property. It was, and still is, of a size that it could cause significant damage to property should it fail.

(b) Under normal circumstances consent would be required from Hornsby Shire Council to interfere with the tree.

(b1) Approval would not be required to interfere with the tree under the Native Vegetation Act 2003 .

(b2) Pruning the remainder of the tree to reduce its risk of failing would not be possible - it requires removal.

(b3) The tree contributes to the landscaping of the respondent's land and provides some shade.

(c) The tree has no historical, cultural, social or scientific value.

(d) The tree makes no significant contribution to the local ecosystem.

(e) The tree contributes to the scenic value of the land on which it is situated.

(f) The tree can be seen from the street, so makes some contribution to public amenity.

(g) The tree has no impact on soil stability, the water table or other natural features.

(h)(i) Although the stem fell across the garden on or about 31 October 2010, damage to the fence was caused by the stem when branches were cut from the fallen stem on 18 November. There is no evidence put to the court identifying those who cut the tree branches. Both parties state that they do not know who was responsible. The respondent contends that since the damage to the applicant's fence occurred as a result of the branches being cut, he is not responsible. However, as the tree owner, he was responsible for the tree and its clean-up.

(h)(ii) The tree owner had not had the tree inspected and there were no signs on the tree indicating to him as a layperson that he should have it professionally inspected. The applicant had not brought any concerns regarding the tree to its owner's attention.

(i) There was no injury caused to a person when the tree failed.

Summary of issues

28 In summary, there are several issues, outlined below, that lead me to a decision.

29 The tree is the property of the respondent. Although there is nothing to suggest that the respondent should have been more than normally concerned about the tree's safety prior to its failure, he was responsible for cleaning up the fallen stem once it had failed.

30 In Robson v Leischke [2008] NSWLEC 152; 72 NSWLR 98; 159 LGERA 280 , Preston CJ found that a tree owner was not responsible for its failure and therefore the resulting loss should not be shifted from the person who suffered that loss to the tree owner. In effect, the loss lies where it falls. In the case before me, if the compensation for the cost of repair to the fence was to be shifted from the applicant to another party, it would need to be shifted onto those who caused the tree to fall: the tree cutters. As there is no information regarding their identity, the loss remains where it fell: with the applicant.

Orders

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

(1) The application for compensation is dismissed.

(2) The application regarding the tree is upheld.

(3) The respondent is to engage and pay for an arborist, with a minimum AQF level 3 and appropriate public liability insurance, including for damage to underground services, to remove the fallen stem and all its branches and foliage and to remove the remainder of the tree including all three remaining stems and their crowns to no more than 200mm above ground level. The stumps are to be poisoned immediately they are cut.

(4) This work is to be done in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(5) The respondent is to give the applicant seven days notice of the works.

(6) The applicant is to provide access to his property for the works to be carried out during reasonable hours.

(7) The works in (3) are to be completed within 30 days of the date of these orders.

__________________________

D Galwey

Acting Commissioner of the Court

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Decision last updated: 22 September 2011