Land and Environment Court New South Wales

• Medium Neutral Citation: Green v Georganas & Anor [2012] NSWLEC 1009
• Hearing dates: 12 January 2012
• Decision date: 12 January 2012
• Jurisdiction: Class 2
• Before: Hewett AC

Decision

(1)The claim for compensation is refused.

(2)The respondents are to engage and pay for an AQF level 3 arborist with all necessary insurances to remove all dead wood from the tree canopy to a minimum basal diameter of minimum 20 mm.

(3)The arborist in (2) is to assess the condition of the two crossing and rubbing branches in the northern most sector of the higher canopy and to prune as required, in order to minimise a failure at that point.

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

(5)The work in (2) is to be undertaken annually within two weeks either side of the anniversary of the first pruning.

• Catchwords: TREES [NEIGHBOURS] risk of injury
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
• Category: Principal judgment
• Parties: Mr J Green (Applicant); Mr N Georganas and Ms S Sheeran (Respondents)
• Representation: Mr J Green (Applicant in person); Mr N Georganas and Ms S Sheeran (Respondents in person)
• File Number(s): 20892 of 2011

Judgment

1 This is an application under part 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by Mr Joel Green of 23 Lake Shore Drive North Avoca, against Mr Georganas and Ms Sheeran of 21 Lake Shore Drive. The properties are within the Gosford local government area.

2 Mr Green seeks orders for the pruning back to the property boundary of branches from his neighbours' tree, as he contends that falling branches pose a threat to him and to his family when using their rear garden. He says that if the pruning that he seeks is likely to significantly destabilise the tree then he seeks orders for the trees removal.

3 Mr Green also seeks orders for the payment of compensation for damage to his roof mounted pool solar fixture, pool fence glass panel and steel roof hip that he says were damaged by falling dead wood from the respondents' tree.

4 At the commencement of the hearing, Mr Green said that he would not allow the respondents to enter his property and that he would not enter their property, in order to conduct the hearing. The parties agreed that I would make my assessment of the tree and hear the evidence from both parties and inspect from both properties and that the applicants and the respondents would remain on their respective properties, but within sight and hearing contact.

5 Mr Green constructed his house, pool and surrounds in mid 2010 on land that was previously vacant. The construction involved a relatively deep excavation on the southern rear side, where Mr Green constructed a 2 m high retaining wall about 1 m in from the dividing fence. The respondents' tree stands about 1 m in from the fence and adjacent to Mr Green's rear garden.

6 Mr Green says that he discussed the tree with Mr Georganas at commencement of his building construction. He says Mr Georganas was amenable to the tree being removed. Mr Georganas disputes this. Mr Green says Mr Georganas later changed his mind and said he could prune the tree back to the boundary. Mr Green then called for quotes to do that work.

7 Mr Green says that Ms Sheeran then refused to allow the work until he produced a letter from Gosford council stating that the work could be done and also that he provide details of the contractor's insurance.

8 Mr Green engaged solicitor Philip Luca who wrote to the respondents on 14 March 2011, telling them that council would not write a letter as the tree was within 3 m of " an approved building " and therefore council approval is not required under the City of Gosford Tree Preservation Order (the TPO).

9 In the course of the hearing, Mr Green argued that his retaining wall was the " approved structure " that was within 3 m of the tree. However, I note the solicitor's letter refers to the TPO as relating to trees within 3 m of " an approved building ". The retaining wall is not an approved building and therefore it is not a determinant in relation to the Gosford Council TPO.

10 Mr Green says that although he could not get the council's written advice, he was told verbally that a letter was not required. The proposed pruning work did not subsequently proceed.

11 The solicitor's letter of 14 March 2011 also stated " As you know there has already been some damage to my client's roof/gutter from falling tree limbs ."

12 The respondents contend that the solicitor's allegation of damage was the first notification they have had of any damage to Mr Green's property allegedly caused by their tree. The respondents wrote in reply on 4 April 2011 denying that they had any prior knowledge of the alleged damage and denying that they had ever agreed to the removal of the tree.

13 During March 2011, the respondents engaged a tree contractor to prune dead wood and a large live branch growing slightly above Mr Green's house roof.

14 Mr Green acknowledges the pruning of the live branch but he disputes that any dead wood was pruned at that time.

15 Mr Green alleges that dead branches from the respondents' tree have, at unspecified times, fallen and damaged his roof mounted solar fixture as well as denting his steel roof ridge cap. He also alleges that a dead branch fell, again at an unspecified time, chipping a glass panel of his swimming pool fence. He says this necessitated the reversal of the panel so that a sharp edge was no longer exposed and likely to cause injury.

16 The respondents say that they had no knowledge of the alleged pool fence panel damage until the directions hearing.

17 Mr Green says he invited Ms Sheeran to view a dead branch that had fallen " as a spear " and lodged vertically into his garden, narrowly missing himself and his children. He alleges Ms Sheeran would not accept that the dead branch was from her tree.

18 In the course of the hearing, I put the proposition to Mr Green that the small dent and scratch in his steel ridge capping might be characterised as of a cosmetic nature and barely visible, except from the respondents' side garden, to which he agreed.

19 The respondents say that Mr Green may himself have damaged his solar fixture when climbing on his roof, a possibility that Mr Green denies. However, Mr Green was unable to produce evidence of any specific instance of damage caused by dead branches falling from the respondents' tree.

20 Mr Green's submission contains a substantial number of colour prints of photographs, showing dead branches in and on his lawn and on his roof. The photographs are not dated and some are of the same branch, but taken from different angles. Mr Green could not state when any of the photographs were taken. As a consequence I am not persuaded that these photographs prove, on balance, that the damage to Mr Green's roof, solar fixture and glass panel was caused by the respondents' tree.

Experts' report by ArborViews

21 Mr Green engaged a tree consultancy, Arbor Views to assess and report on the condition of the respondents' tree. Mr McKenzie and Ms Eckersley (the arborists) jointly prepared a report dated December 2011.

22 The arborists made their assessment on 23 November 2011, conducting what they describe as a Visual Tree Assessment (VTA) and a risk assessment using the Quantified Tree Risk Assessment method.

23 The arborists made their assessment entirely from within Mr Green's property. The respondents say that they were at home on the day of the assessment. They say no request was made for access to their property, but they would have provided access had they been asked.

24 Since Mr Green's rear garden is about 2 m below the respondents' property, and there is a standard fence at the top of the retaining wall, the lowest 2 m or so of the trunk is not visible from Mr Green's garden. The arborists report does not detail how they conducted their VTA. I find that their capacity to adequately assess the structure of tree was significantly limited.

25 The respondents' tree is a Blackbutt ( Eucalyptus pilularis ), an endemic species, and likely to be a forest remnant. It is some 30 m in height and about 18 m in crown spread. It is mature and appears healthy.

26 My observations during the hearing were conducted from the rear garden of both the applicant's and the respondents' properties. I used binoculars to scrutinise the canopy and noted a small but not insignificant amount of dead wood in the upper canopy, amounting to some 2 - 5 % overall. I also noted in the northern part of the canopy, two reasonably sized crossing branches with some tissue damage evidently caused by rubbing contact.

27 The trunk at ground level is about 1.5 m in diameter and the trunk bifurcates at this point. The bifurcated union on the southern side of the trunk is characteristic of a tension fork, whereas there is evidence of adaptive growth on the northern side of the union. The north easterly of the two stems bifurcates at 1.4 m above ground level. That fork shows slight snub-nosed adaptive growth. Despite the aforementioned limits to access, the arborists say that it could be " reasonably assumed that there could be a significant crack which has stimulated the growth of the reaction wood, this placing a likelihood of failure at this union ." They do not explain how they come to conclude that the assumed crack is significant and nor do they clarify their assumption concerning the likelihood of failure.

28 The north-eastern stem of the tree bifurcates at about 2.5 m above ground level. This stem fork also shows slight snub-nosed adaptive growth. The arborists speculate that this stem union is the one that is most likely to fail, however, there is no discussion or review of the factors that lead them to that conclusion.

29 The arborists discussed the tree's overall stability. They speculate as to the impact of Mr Green's construction excavation and assume that root damage occurred as a result of that work, but they provide no evidence to support their assumptions. They estimate the tree's structural root zone, with reference to Australian Standard AS4970-2009 as between 3.4 and 3.5 m. They conclude that the hypothetical root cutting had a high likelihood of occurring at the boundary of the theoretical structural root zone. They speculate that the healthy state of the crown means the tree is effectively recovering from the effects of the construction work. They say that "recent rains" have allowed the tree to put on compensatory root mass in "other hospitable" ground areas available to it, but they provide no evidence to support these assumptions. Under the heading of "Methodology", the arborists state that they made no below ground root investigations, yet they not only assume that root cutting has occurred, but they also speculate on the outcome as follows: " There can be little doubt that the tree is less securely established in the ground than prior to the excavation work even if the tree is successfully re-establishing roots ."

30 I find there is no evidence to show that the tree is " is less securely established in the ground than prior to the excavation..." This is an opinion that is likely to cause unnecessary concern to both applicant and respondents, despite the absence of any supporting evidence for that opinion.

31 The arborists state in their report that they have read schedule 7 of the Uniform Civil Procedure Rules 2005 and that they agree to be bound by the Expert witness code of conduct. Section 5 (1)(b) requires that an expert's report includes the facts and assumptions of fact, on which the opinions in the report are based. I find that the Arbor Views' report fails to meet this requirement.

32 The arborists conducted a QTRA and concluded that the level of risk from a failure of the north-eastern stem is acceptable, although they include a comment advising the applicant to vacate the top room of his house during extreme weather events. Although they conclude that the risk level does not require mitigation, they advise that reduction pruning could be applied to reduce the risk. However, I observed the structure of the tree was such that the pruning they propose would not be achieved, as reduction pruning would necessitate lopping that is contrary to the Australian Standard AS 4373-2007. They also suggest that " extreme mitigation " could be undertaken by removing the smaller of the co dominant branches. The implications of these risk mitigation options are not discussed in the report.

33 As a consequence of the foregoing, I find that the ArborViews report fails to meet the requirements of s 5 of the Uniform Civil Procedure Rules and further, I find their report confusing in its advice and that it does not assist the Court in this matter.

Did the tree cause the damage?

34 Mr Green argued at the hearing that about 85 percent of the respondents' tree overhangs his rear garden. I can see how he might reach this conclusion, given the location from which he makes his observation, some 2 m below the base of the tree. During the hearing, Mr Green adjusted his estimation stating that the crown extends possibly 45 percent above his property. The respondents argue that it overhangs by less than 10 percent. My own observations, from the street between the two properties and visualising a vertical line directly from the fence, is that the canopy extends less than 10 percent and that none of the trunks or primary branches crosses the boundary.

35 Under s 10(2) of the Act, the Court must not make an order under this part, unless it is satisfied that the tree concerned:

(a) has caused, is causing, or is likely in the near future to cause, damage to the applicant's property, or

(b) is likely to cause injury to any person.

36 On the evidence before me, I am not satisfied as to a causal nexus between the alleged damage to the ridge cap, pool panel and the solar fixture, and falling branches from the respondents' tree. In this matter, the applicant bears the onus of proof and that standard of proof is the balance of probabilities. This was discussed by Craig J in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29:

...that in order to satisfy s 10(2) requires a preponderance of probability that a causal nexus exists, anything less would not be tantamount to the satisfaction required by the section. (38 at 62)

Something more than a theoretical possibility is required in order to engage the power under the Act to make an order to remedy, restrain or prevent damage as a consequence of the tree.

37 I find there is no evidence that would persuade me that there is a causal nexus between the damage Mr Green claims and the falling of dead wood from the respondents' tree. If I am wrong on this point, I consider the damage I have seen is of such a slight nature that repair would be of a minor nature and would not warrant the payment of compensation or require any interference with the tree.

38 With respect to s 10(2)(b) I find that the possibility of the failure of dead branches, even of a size of 20 mm diameter, is sufficient to cause injury to persons in the applicant's rear garden. As a consequence, the Court has jurisdiction and orders can be made.

39 Before determining the application under this part, the Court is to consider matters under s 12 as follows:

(a) the tree is wholly situated on the respondents land

(b3) the tree is a substantial height and crown spread. It is situated on the northern side of the respondents garden and house and therefore provides summer shade that the respondents say they value

(d) as a local native species and a likely remnant of the original forest, the tree does contribute to the local ecosystem and to biodiversity

(e) the tree and is one of numerous remnant trees in the area that create a tall canopy character to the surrounding area

(f) the tree is very clearly visible to the surrounding properties and streets and therefore it has intrinsic value to public amenity

(g) the trees large size means that it would be contributing to soil stability and the water table

(i)(i) the tree was present when the Mr Green constructed his house and swimming pool. He did have opportunity at the design stage to design with consideration for the existence and natural character of the tree.

(i)(ii) after being advised about the tree by the applicant's solicitor, the respondents had the tree pruned, removing dead wood and a live branch that slightly overhung a section of Mr Green's roof

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

(1) The claim for compensation is refused.

(2) The respondents are to engage and pay for an AQF level 3 arborist with all necessary insurances to remove all dead wood from the tree canopy (over both properties), down to a basal diameter of minimum 20 mm.

(3) The arborist in (2) is to assess the condition of the two rubbing branches in the northern most sector of the higher canopy and to prune as required, in order to minimise a failure at that point.

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

(5) The work in (2) is to be undertaken annually within two weeks either side of the anniversary of the first pruning.

Philip Hewett

Acting Commissioner of the Court

Decision last updated: 25 January 2012