Land and Environment Court New South Wales

• Medium Neutral Citation: Chapman & anor v Harris & anor [2012] NSWLEC 1183
• Hearing dates: 9 July 2012
• Decision date: 09 July 2012
• Jurisdiction: Class 2
• Before: Galwey AC

Decision

Application for tree removal dismissed.

Orders made for regular pruning of two trees.

Application for compensation upheld in part.

• Catchwords: TREES [NEIGHBOURS] Damage to property; risk of injury; pruning ordered; compensation.
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Category: Principal judgment
• Parties: John Chapman and Gail Chapman (Applicants); Lachlan Harris and Jenne Harris (Respondents)
• Representation: John Chapman and Gail Chapman (Applicants in person); Lachlan Harris and Jenne Harris (Respondents in person)
• File Number(s): 20311 of 2012

Judgment

1 COMMISSIONER: In a leafy street in Austinmer, residential properties are nestled opposite an area of bushland regrowth. Some of the properties have large indigenous trees in their gardens. On one such property, Mr and Mrs Harris, the respondents in this matter, built their dwelling and deck in such a way to retain two trees that are near, or partly on, their side boundary.

2 Mr and Mrs Chapman, their neighbours, have had to repeatedly repair and replace roof tiles they say have been broken by limbs falling from the trees. Due to their concerns of future damage and risk of injury they seek orders pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 ("the Act") for the removal of both trees at the respondents' expense. They also seek compensation of $1,309 for repairs and works to their roof.

3 The respondents enjoy the benefits of the trees and do not want to remove them. They would like to retain both trees and are willing to undertake annual inspections and pruning as necessary.

Evidence

4 The hearing took place onsite, allowing viewing of the trees and properties. The Court declined the applicants' invitation to walk across the roof to inspect tile damage due to safety concerns for all parties - there were no scaffolding or safety barriers present. Damage could be assessed sufficiently through viewing from the respondents' deck and through photographs supplied by the applicants.

5 The trees are both Blackbutts (Eucalyptus pilularis). Tree T1 is closer to the front boundary and is located on the side boundary; perhaps 80% on the respondents' land and 20% on the applicants', but evidently is principally located on the respondents' land.

6 Tree T2 is entirely on the respondents' land. It is further from the street, down the slope, and has a deck built around it. The trees are healthy and well structured with small amounts of deadwood and some overextended limbs present in their crowns.

7 The applicants supplied many photos showing broken tiles, damage to the roof and repairs to the roof. They have kept about 20 branches, 2 to 3 metres in length and up to 50 mm in diameter, they say have fallen from the trees. The respondents, while suggesting limbs may have also fallen from more distant trees, concede that some limbs from their trees have caused damage.

8 The applicants' evidence includes details and photographs of damage to their roof, information on concrete tiles and sarking, Bureau of Meteorology records of wind speed and direction, an arborist report obtained by the respondents and copies of a Council tree permit, correspondence and other documents. The respondents' evidence includes a clear and thorough expert witness statement from Mr Gary Leonard, ecologist and botanist, of Ecobiological.

Jurisdiction to make orders

9 I am satisfied that limbs from the respondents' trees have damaged the applicants' roof. Therefore, according to s 10(2)(a) of the Act I can proceed to make orders.

Submissions

10 The applicants asked me to consider that:

• the species of tree is too large for their location and that the trees will grow larger;
• there are many other trees in the area;
• the trees are of a very common species;
• only removal can prevent damage;
• only removal can prevent the risk of injury;
• they are especially concerned for the wellbeing of their grandchildren;
• the direction of the prevailing winds results in most debris from the trees falling onto their property;
• most branches that fall onto their roof are dead;
• the fallen debris is a fire risk;
• their roofing material is suitable for the environment;
• the trees are the respondents' responsibility;
• pruning of the trees has been inadequate in dealing with the risk; and
• living beneath the trees makes them anxious.

11 The respondents submit that:

• debris from the trees also falls on their land;
• the trees provide significant habitat contribution;
• the trees form part of a habitat corridor and link, a view supported by the evidence of Mr Gary Leonard, ecologist;
• annual inspection and pruning would deal with any risks posed by the trees, a view supported by the evidence of Mr Leonard.

Matters to be considered

12 Before making any orders the Court must consider a range of matters listed under s 12 of the Act. My own consideration of these matters is set out below.

S 12(a). Tree T1 is on the boundary; T2 is close to the boundary. Both trees are principally on the respondents' land. Both trees are close to and overhang the applicants' and respondents' dwellings.

S 12(b). Interference with the trees would require consent from Wollongong City Council under the Environmental Planning and Assessment Act 1979. Such consent has previously been obtained by the respondents.

S 12(b1). Interference with the trees would not require approval under the Native Vegetation Act 2003.

S 12(b2). Regarding the impacts of pruning, both trees are healthy and generally well structured. The largest risk perhaps arises from T1 and the major limb that could fail onto the respondents' property. There is some minor deadwood present up to 50 mm in diameter and there are some long slender limbs present in both canopies. These appear to be the main risks. In my view the risks can be dealt with by pruning, regardless of the prevailing wind direction. Such pruning would not be excessive and could be done in accordance with AS 4373 Pruning of Amenity Trees.

S 12(b3). The trees contribute to the landscaping of the land on which they are situated. They provide protection from the sun and contribute to the property's amenity.

S 12(c). No evidence was provided that the trees have any historical, cultural, social or scientific value.

S 12(d). The trees are part of the local ecosystem and contribute to local biodiversity and habitat values.

S 12(e). The trees are part of a broader landscape of bushland and contribute significantly to the natural landscape and scenic value of the land.

S 12(f). The trees are easily viewed from public land and have value to public amenity.

S 12(g). Removal of the trees is unlikely to have any impact on soil stability or the water table.

S 12(h) and 12(i).

(i) There are no other relevant factors contributing to past damage or to the likelihood of the trees causing damage or injury.

(ii) Both trees were pruned in 2008 and 2011. Pruning has been undertaken by both the applicants and the respondents.

S 12(j). There are no other matters that I consider relevant.

13 On the balance of these matters, I consider that tree removal would be a disproportionate response; pruning of the trees is required; and it would be appropriate to award compensation for damage to the applicants' roof.

Compensation

14 The compensation sought by the applicants is:

• $759, being a quotation for tiles and repairs of the roof; and
• $550 for sarking.

15 Because damage has occurred as a result of the respondents' trees, it seems reasonable for the respondents to pay the applicants $759, the sum quoted for repairs. The quote does not appear excessive. Sarking is a preventative measure, in that it may prevent water damage to internal parts of the dwelling. Regular pruning would minimise the need for such sarking. The applicants can still undertake the installation of sarking if they wish but this would be at their expense.

Cost of tree works

16 Regarding any apportionment of the cost of works to the trees, the applicants may be part owners of one tree but it is the respondents who wish to retain the trees and it is they who would bear the cost of doing so.

Conclusions

17 Considering the foregoing, I find that the trees do not need to be removed. Regular pruning, done at the respondents' expense, can minimise the risk of future damage and injury.

18 Therefore the orders of the court are:

(1) The application to remove the trees is dismissed.

(2) The respondents are to pay the applicants $759 within 14 days of the date of these orders.

(3) The respondents are to engage and pay for a suitably qualified arborist (minimum AQF level 3) with all appropriate insurances to prune both trees to remove deadwood greater than 20 mm in diameter and to reduce slender limbs that are over the applicants' property by up to 20%, with no more than a 10% reduction of total crown mass. At the same time the arborist is to carry out an inspection of both canopies to identify any hazardous limbs, which are to be pruned or removed as necessary. These works are to be done in accordance with AS4373 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry.

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

(5) The applicants are to provide all necessary access for the works in (3), on reasonable notice, during reasonable hours of the day.

(6) Each year, beginning 2013, within 30 days of the anniversary of the date of these orders, the works in (3) are to be repeated.

(7) Each year the applicants are to provide all necessary access, on reasonable notice, during reasonable hours of the day, for the works in (6).

(8) The exhibits are retained.

D Galwey

Acting Commissioner of the Court

Decision last updated: 12 July 2012