Land and Environment Court New South Wales

• Medium Neutral Citation: Otim v Madden [2012] NSWLEC 1008
• Hearing dates: 2 December 2011
• Decision date: 20 January 2012
• Jurisdiction: Class 2
• Before: Hewett AC

Decision

Application for compensation upheld and orders made for payment

Orders made for the pruning of dead wood

• Catchwords: TREES [NEIGHBOURS] - damage to property; trees already removed - compensation ordered - pruning ordered - Expert report rejected
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006; Interpretation Act 1987; Uniform Civil Procedure Rules 2005
• Cases Cited: Robson v Leischke [2008] NSWLEC 152; Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29; Yang v Scerri [2007] NSWLEC 592
• Texts Cited: Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) November 2009; Trees (Disputes Between Neighbours) Amendment Bill 2010
• Category: Principal judgment
• Parties: M and S Otim (Applicants); M and M Madden (Respondents)
• Representation: M and S Otim (Applicants in person); M and M Madden (Respondents in person)
• File Number(s): 20753 of 2011

Judgment

1 Mr and Mrs Otim are the owners of a property in Linigen Place, St Ives and they have applied for orders under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) concerning eight trees belonging to their neighbours, Mr and Mrs Madden.

2 The Otims seek orders requiring the Maddens to:

(a) cut the trees that pose a danger to their home and their lives.

(b) underpin a rock which poses danger to their home and their lives.

(c) reimburse out-of-pocket expenses incurred due to trees falling on their property.

Background to the application - a spate of recent tree failures

3 The Otims' property is situated on moderately sloping land with an easterly aspect. Their house is constructed on a level pad excavated into the toe of the slope. To the west and behind the Otims' house is the elevated property of Mr and Mrs Madden whose house is situated toward the top of the slope. The outlook from the rear of the Otims' house is of the Maddens' sloping east facing side garden and their north facing front garden containing a cluster of tall trees amongst a few exposed rock outcrops.

4 On 30 June 2011 during wet and windy conditions, a tree in the Maddens' front garden fell bringing with it a nearby tree. The two trees were part of a cluster of mature trees adjacent to Linigen Place. The trees fell onto the Otims' property severing their house electrical mains connection and damaging their car parked in their driveway. On that day, Energy Australia reconnected the damaged mains supply. The Otims paid Energy Australia $317.60 for the repairs, and this payment is one element of the their claim for compensation. A second element of their compensation claim is the $450 that they paid as the excess under their vehicle insurance policy.

5 On 2 July 2011 the Otims and the Maddens convened a face-to-face meeting to discuss cleaning up and disposing of the fallen trees. Mr Otim asked the Maddens to reimburse the costs of repairing their cables and pay the excess on Mrs Otims' car insurance as a result of the damage caused by their fallen trees. They also asked that the Maddens have the remaining trees on their property checked for safety.

6 A little less than three weeks later, on the 19 July 2011, another of the Maddens' trees fell from within the cluster of trees from which the previous trees fell. This tree damaged more cables on the Otims' property.

7 The following day, 20 July 2011, Mr Otim sent an email to the Maddens advising them of the fallen tree and the damage it had caused. He again asked them to check the condition of their trees.

8 On 21 July 2011 the Maddens wrote to the Otims advising that their insurance company considered the tree failures to be an 'act of God' and therefore each party should claim through their respective insurer.

9 The Maddens wrote again on 4 August 2011, saying amongst other things, that they had had an arborist assess their trees, although they did not provide the Otims with any details or evidence of that assessment. They told the Otims that under the Ku-ring-gai Council Tree Preservation Order there was no strong justification to have any trees removed from their land.

10 On 22 July 2011, another of the Maddens' trees fell. The trunk and canopy landed on the Otims' roof with sufficient force to penetrate their bedroom ceiling, necessitating emergency services assistance. This tree was situated on the easterly slope of the Maddens' garden. The Otims' insurer subsequently paid $35,944 to repair the damage and the Otims paid $1,000 to cover their insurance policy excess. This insurance excess is the third and final element in the Otims' claim for compensation

11 At the on-site hearing Mr Otim agreed that the Maddens had told him that they had had their trees checked by an arborist, but he said he did not believe them because they would not produce any evidence such as a copy of a report. In reply Mrs Madden said that the arborist did check the trees but he would not write a report because he was not qualified to the level required for report writing. She said that she accepted his assurance that their trees were healthy.

12 On 26 July 2011, the Maddens engaged an arborist Mr Andrew Scales from Naturally Trees, to make an assessment of their trees. Mr Scales made his assessment on 26 July 2011 four days after the recent tree failure that damaged the Otims' house, but he did not write a report until four months later on 22 November 2011.

13 On 2 August 2011 the Otims wrote to the Maddens asking them to apply to Ku-ring-gai Council to remove what they believed were dangerous trees on the Maddens' property.

14 The Maddens wrote in reply that they had an arborist's advice saying that their trees were not at risk and they suggested the Otims make their own application to the Council.

15 The Otims then filed application in the Court on 31 August 2011, having considered they had exhausted all reasonable options to have their neighbours address the condition of the trees or contribute to their out of pocket expenses for the repair of damage caused by their neighbours trees.

16 The Tree Dispute application identifies the four failed trees as trees T4, T5 and T6 situated in the Maddens' front garden, and T11 standing in their side garden on the eastern facing slope directly behind the Otims' bedroom.

17 There are eight trees on the Maddens' land that the Otims contend are dangerous and that threaten their property and personal safety. These trees are shown on a sketch plan submitted with the application and identified as T1, T2, T3, T7, T8, T9, T10 and T12.

18 It is a requirement of s 10(2) of the Act that the Court 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.

19 As a consequence, the Court must consider each tree separately.

Service of the application

20 At the commencement of the on site hearing, Mr and Mrs Madden argued that Mr and Mrs Otim failed to comply with direction 3(a) of the Directions of the Court, requiring the applicants to serve a copy of the application on the respondent and on the local council by 4.30pm on 21 October. They say that the Otims did not serve a copy of the application on them until 9 November 2011.

21 It is a fact that the Otims did not serve the Maddens strictly in accordance with the Court directions. However, the Court file shows that the council was served a copy of the application on 18 October 2011. The Court file shows that B Daintry attended the preliminary hearing on behalf of the respondents. The registry gave each party a copy of the application at the hearing and the applicants received an additional copy to serve on the council. On being advised by the Maddens that they had not served them a copy of the application, the Otims posted a copy on 9 November 2011. They say they assumed that since both parties were represented at the preliminary hearing then they did not see the need to serve a further copy of the application. I am satisfied that the delay in formal service of the application did not in any way disadvantage the Maddens in responding to the application, since their appointed representative attended the preliminary hearing where the directions were made and therefore they had full knowledge of the application.

A rock is not a tree - finding

22 There are a number of provisions that must be considered in order to determine if the Court has jurisdiction in this matter.

23 In the first instance, the Otims seek orders requiring the Maddens to underpin a rock on their property because the Otims believe the rock poses a threat to their property and safety.

24 Section 4(1) of the Act states:

(1) This Act applies only to trees situated on the following land:

(a) any land within a zone designated "residential", "rural-residential", "village", "township", "industrial" or "business" under an environmental planning instrument (within the meaning of the Environmental Planning and Assessment Act 1979 ) or, having regard to the purpose of the zone, having the substantial character of a zone so designated,

(b) any land of a kind prescribed by the regulations for the purposes of this section.

25 Section 7 of the Act provides for an owner of land to apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree (emphasis added) to which the Act applies that is situated on adjoining land. Since it is an indisputable fact that a rock is not a tree, then the Court does not have jurisdiction and therefore that element of the application is dismissed.

The trees are not situated on the land - findings on compensation

26 In the second instance, the application for orders for the payment of compensation for the cost of electrical repairs and payment of insurance excess, relates to trees that are no longer situated on the adjoining land. In Robson v Leischke [2008] NSWLEC 152, Preston CJ at [142] says there a number of provisions of the Trees (Disputes Between Neighbours) Act 2006 that make reference to a tree being situated on land. The Trees (Disputes Between Neighbours) Act 2006 defines the phrase "is situated on land":

For the purposes of this Act, a tree is situated on land if the tree is wholly or principally on the land." s 4(3).

27 Although trees T4 T5 T6 and T11 have been removed, and s 7 of the Act uses the present tense when it refers to a tree that " is situated on adjoining land ", s 4(4) of the Act states:

Without limiting subsection (3), a tree that is removed following damage or injury that gave rise to an application under Part 2 is still taken to be situated on land for purposes of the application if the tree was situated wholly or principally on the land immediately before the damage or injury occurred.

28 Section 34 of the Interpretation Act 1987 refers to the range of extrinsic material the Court may consider to assist with the interpretation of a provision of an Act. To assist with interpretation of s 4(4) of the Trees (Disputes Between Neighbours) Act 2006 , I turn to the Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (the Review) of November 2009, which was referred to in the Second Reading Speech on the introduction into Parliament of the Trees (Disputes Between Neighbours) Amendment Bill 2010 as recorded in Hansard on 18 May 2010 [page 22821].

29 The Review outlines the background to the 2010 amendments to the Act. Submissions were received and discussed as part of the Review, which made recommendations to improve the operation of the Act. The Government accepted all of the recommendations.

30 The Review included the following discussion regarding the use of the present tense in s 7 of the Act.

The consequence of this drafting is that a person who would otherwise be liable for damage caused by a tree on their land can avoid having to pay any compensation or repair costs, by acting promptly to completely remove the tree from their land. In such cases, the neighbour who has suffered the damage would only have the option of suing in nuisance to attempt to recover their losses.

A number of submissions suggested that the Act be amended to allow the Court jurisdiction where the tree has been wholly removed.

It is preferable for all cases of damage caused by trees in eligible zonings to be dealt with by the LEC under the Act, rather than matters being heard under the common law in other Courts simply because the tree in question has been wholly removed.

31 Following on from this, Recommendation 4 of the Review was:

That the Act be amended so that its procedures can still be used in cases where the tree in question has been wholly removed.

32 As the discussion surrounding this point concerned the tense used in s 7, and s 7 refers to the circumstances in which a land owner may apply to the Court, it follows that the intent of the 2010 amendment is that an application can be made for a tree that has been removed. The use of the words " gave rise to " in s 4(4) do not, on my reading, preclude this interpretation.

33 Further wording in s 4(4) of the Act also suggests this interpretation, when it states that a tree is still taken to be on the land if it was situated " on the land immediately before the damage or injury occurred ."

34 Without the 2010 amendment discussed above, the Court would need to consider the amount of root material that was left in the ground and whether or not this would be defined as a tree as discussed by Preston CJ in Robson . However, as my interpretation of s 4(4) gives the Court jurisdiction over the removed trees, this is not something I need to consider here.

35 As a consequence of the foregoing, and that the parties agree that the failure of trees T4 T5, T6 and T11 did cause damage to the Otims' property, the Court's jurisdiction is enlivened and the application for compensation can be determined.

Should the respondents compensate the applicants?

36 The evidence clearly shows that the Otims have experienced considerable inconvenience and some hardship as a result of the damage caused by successive tree failures from the Maddens' land. They experienced the impact of their neighbours' tree penetrating their bedroom ceiling, they lost the use of their bedroom whilst repairs were undertaken, they lost the use of their car while it was in repair and they suffered electricity and communications cable failures.

37 The Otims are not tree experts - they claim no special knowledge of trees so it is entirely reasonable that given the number of tree failures they have been subjected to, that they should have serious concerns about the remaining trees on their neighbours' land. The Maddens say they assured the Otims by telling them that an arborist had checked their trees and that he found them all healthy, but they provided nothing to show that they had in fact gained that advice, and nor were they obliged to do so.

38 The Maddens say the arborist gave them advice but said he could not write them a report as he was not sufficiently qualified to write reports. Their evidence does not persuade me in this regard. Nor does their evidence persuade me to accept that Mr Scales inspected their trees on 26 July 2011, since there is no evidence of the inspection. Mr Scales' inspection was allegedly carried out on 26 July 2011, which was less than four (4) days after the failure of the large tree onto the Otims' house, yet Mr Scales, a professional consultant with a higher-level qualification in arboriculture, made no written record of that inspection. On the evidence, I am not persuaded to accept that the alleged inspection was ever carried out.

39 The Otims' vehicle and building insurance policies covered the costs of repairs and therefore they have no claim to make in that regard and in fact they make no such claim. However, apart from bearing the considerable burden of inconvenience, they are also out of pocket as a result of the insurance policy excess payments and the cost of restoring their electricity. I therefore consider it reasonable that the Maddens share that overall burden by reimbursing the Otims' out-of-pocket expenses.

The remaining eight trees and findings

40 I turn now to the matter of the trees T1, T2, T3, T7, T8, T9, T10 and T12, each of which I am satisfied is a tree to which the Act applies that is situated on adjoining land.

41 In the course of the on site hearing I inspected each of the trees and surrounds from the vantage of both properties.

42 The report prepared for the respondents by Mr Scales and referred to in 12 above, was not available to me at the time of the on site hearing. I have subsequently read that report and make the following observations.

43 Mr Scales states that he first inspected the trees on 26 July 2011 and that he made no documentary record of that inspection. He later inspected what he describes as 'the site" on 22 November 2011 in order to prepare an expert report for the purposes of the hearing. Despite his first inspection having been allegedly conducted just four days after the failure of the large tree that significantly damaged the Otims' house, his report makes no reference to that failure, nor any reference to the tree failures that occurred about three weeks before the inspection.

44 Although Mr Scales agrees in his report to be bound by the Uniform Civil Procedure Rules 2005 schedule 7, I find his report fails to meet the requirements concerning Expert reports under s 5(a) and (b) concerning the facts and assumptions of fact on which his opinions are based, and the reasons for each opinion expressed.

45 Mr Scales used the International Society of Arboriculture (ISA) hazard assessment method to assign a hazard rating for each of the eight trees. There is nothing in his report to show that he considered overall tree stability despite there being clearly visible indications of variable soil depth in the Maddens' property.

46 In each of the eight hazard assessments, Mr Scales assigns a target rating of 2, which he describes as Intermittent Use. Details of the ISA method appended in his report describe intermittent use as typified by picnic areas and day use parking. At the on site hearing, Mr Otim objected to Mr Scales' target rating which he says ought to have been a rating of 4, meaning 'constant use' which is described in Mr Scales' report as typified by year round use and residences.

47 As a consequence of the foregoing, I can give no weight to Mr Scales' report.

48 The Maddens' land is moderately sloping with sandstone rock outcropping visible in parts of their east-facing garden and therefore I am persuaded by Mr Otims' proposition that the soil at the very front of the Maddens' property extending to the nature strip is shallow with rock close to the surface. My observations are that soil depth is likely to be quite variable across the Maddens' property and an important matter for consideration when assessing the stability of trees on the land.

49 I turn now to consider each of the eight trees that form the basis of the application.

50 Tree T1 is a Sydney Red Gum ( Angophora costata ) situated in the sloping front garden adjacent to the Linigen Place. It is a large mature tree in visibly good health and structural condition. The soil at the west side of the trunk has been raised above grade and there is an old stone retaining wall close to the trunk. The Maddens say that the wall and soil level existed when they purchased the property in 2001 and they have not made any changes to the soil levels since then. I saw nothing within the tree or in the immediate surrounds that would cause me to conclude the tree is likely, in the near future, to cause damage to the Otims' property or to injure persons. The near future being a period of 12 months, which is consistent with the Court's interpretation in Yang v Scerri [2007] NSWLEC 592. As a consequence the Court does not have jurisdiction and no orders can be made in relation to tree T1.

51 Tree T2 is a Sydney Red Gum ( Angophora costata ) situated to the east of T1. It is considerably smaller than tree T1. I saw nothing within the tree or in the immediate surrounds that would cause me to conclude the tree is likely, in the near future, to cause damage to the Otims' property or to injure persons. As a consequence, the Court does not have jurisdiction and no orders can be made in relation to tree T2.

52 Tree T3 is a Sydney Peppermint (Eucalyptus piperita) with a 300 mm diameter trunk that leans slightly to the northeast to overhang the road. The tree is situated to the west of where the three failed trees previously stood. There is no evidence to show how two of those three trees failed. I accept Mrs Maddens' statement that one tree failed when a neighbouring tree fell into it. Mr Otim contends that the failures were the result of the trees growing in shallow soil over rock that he says is typical of the footpath area and possibly parts of the Maddens' immediate front garden. Mr Otims proposition is a theoretical possibility not supported by any substantive evidence. As discussed by Craig J in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 satisfaction of s 10(2) requires a "... 'preponderance of probability' that the 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 a tree ." As a consequence, the Court's jurisdiction is not enlivened and no orders can be made in relation to tree T3.

53 Tree T7 is a small 6 m high Pittosporum ( Pittosporum undulatum ) with a stem diameter of about 120 mm. I could see nothing in the structure of this small tree that would lead me to conclude that it is likely, in the near future, to cause damage to the Otims' property or to injure persons. As a consequence, the Court does not have jurisdiction and no orders can be made in relation to tree T7.

54 Tree T8 is an 8 m high Sydney Redgum ( Angophora costata ) with a stem diameter of about 200 mm. I saw no evidence of potential defects in the primary branch attachments and no evidence of overall instability. As a consequence, the Court's jurisdiction is not enlivened and no orders can be made in relation to tree T8.

55 Tree T9 is a 6 m high Sydney Redgum ( Angophora costata ) with a stem diameter of about 100 mm. The tree has a relatively sparse high crown with few lateral branches. As a result, the crown is carried high on a slender trunk with limited stem taper overall. At ground level the trunk has reduced increment development and the tree is growing in an area of shallow rocky soil. The tree height to stem diameter ratio is approaching a point where the slenderness is likely to contribute to tree failure. However, as the tree is still proportionally small I conclude that it is unlikely, in the near future, to cause damage to the Otims' property or to injure persons. As a consequence, the Court does not have jurisdiction and no orders can be made in relation to tree T9.

56 Tree T10 is 6m high Coral Tree ( Erythrina crista galli ) with a trunk diameter of about 260 mm. Although this tree has been incorrectly pruned, resulting in poor form and structure, it leans away from the Otims' land. Due it its small size I do not consider it likely that in the near future this tree will cause damage to the Otims' property or cause injury to persons. As a consequence, the Court's jurisdiction is not enlivened and no orders can be made in relation to tree T10.

57 Tree T12 is a Sydney Bluegum ( Eucalyptus saligna ) situated in the south-east corner of the Maddens' garden and close to a retaining wall adjacent to the Otims' pool. The tree is semi-mature. There was a pile of dead branches stacked beneath the tree on the Otims' pool side area and an accumulation of dead branches held within the tree canopy. I am satisfied that these branches are from T12 as it is the only tree in the immediate vicinity of the pool. The Otims pointed out a small dead branch that had pierced the pool cover.

58 Mr Otim argued that the tree ought to be removed as it threatened the Sydney Water sewer main in an easement at the rear of his property. However, the sewer is not Mr Otim's property, as Sydney Water owns it.

59 Whilst I saw nothing in the overall structure of tree T12 that would lead me to conclude that the tree is likely to fail and cause damage to property or injury to persons, I did note the accumulation of dead branches throughout the canopy. I consider that the failure of any of these dead branches is likely to cause damage to the applicant's property in the near future, and is likely to cause injury to persons. As a consequence, the Court's jurisdiction is enlivened with respect to this tree and orders can be made.

60 Before determining an application under Part 2, the Court is to consider matters under s 12, the relevant matters are:

(a) tree T12 is situated on the Maddens' land.

(b3) due to its moderate size and form the tree does make an overall contribution to the amenity to the land on which it is situated.

(d) there is no evidence to confirm that it is a remnant tree, however, since it is an endemic species it does make a contribution to the local ecosystem and to biodiversity.

(e) due to the species and this tree's moderate size, it does make a contribution to the natural landscape and scenic value of the land on which it is situated and to the immediate locality.

(g) the tree is situated near the toe of the eastern facing slope and its root system would contribute to soil stability in the immediate vicinity.

Orders

61 The Orders of the Court are:

(1) The application to underpin the rock is dismissed.

(2) Within 30 days of the date of these orders the respondents are to have all deadwood branches to a minimum basal diameter of 20mm pruned from the Sydney Bluegum in the south-east corner of their property (tree T12). The work is to be undertaken by an arborist with the minimum qualification of AQF level 3, and who has all necessary insurances for the work. AS 4373-2007 Pruning amenity trees is the minimum standard for the execution of the pruning.

(3) Provided at least three full days notice is given, the applicants are to provide all necessary access to their property to allow the respondents' contractor to undertake the work in (2) in a safe and efficient manner.

(4) The work in (2) is to be undertaken annually within two weeks either side of the anniversary of the first pruning, and the provisions for access in order (3) apply to each subsequent pruning event required in order (2).

(5) The applicants have 14 days from the date of these orders in which to provide the respondents with certified copies of tax receipts showing payment of their building repairs insurance excess, payment of their motor vehicle insurance excess and payment of $317.60 for their electricity reconnection.

(6) Within 30 days of the receipt of the tax receipts in order (5) the respondents are to pay the applicants the sum of the receipts received which sum shall not exceed $1767.60.

(7) If the applicants fail to meet the requirements of order (5) then order (6) lapses.

Philip Hewett

Acting Commissioner of the Court

Decision last updated: 20 January 2012