Land and Environment Court New South Wales

• Medium Neutral Citation: Page v Lang [2012] NSWLEC 1205
• Hearing dates: 13 July 2012
• Decision date: 13 July 2012
• Jurisdiction: Class 2
• Before: Galwey AC

Decision

(1)The application is upheld in part.

See para 25 of Judgment.

• Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS): damage to property; risk of damage; risk of injury; pruning ordered; compensation ordered.
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Robson v Leischke [2008] NSWLEC 152
• Category: Principal judgment
• Parties: David Page (Applicant); Fay Marion Lang (Respondent)
• Representation: Mrs Page (Wife and agent) (Applicant); Mr Lang (Husband and agent) (Respondent)
• File Number(s): 20382 of 2012

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1 ACTING COMMISSIONER: The landscape of suburban Warrawee is dominated by large trees. Mr Page says his property has been damaged by limbs falling from one such tree that grows on an adjoining property, resulting in some expense to himself. He is also concerned that other limbs may fall from the tree, posing a risk of further damage and of injury. Under the Trees (Disputes Between Neighbours) Act 2006 he has applied for orders for compensation and for the tree to be pruned and maintained. He also seeks orders for an annual termite inspection.

2 Mrs Lang has obtained a permit from Ku-Ring-Gai Council for tree pruning works but wants Mr Page to pay half of the cost of those works.

3 The issues to be determined are:

• Does the Court have jurisdiction to make orders?
• What amount of compensation, if any, would be appropriate to remedy any loss incurred by Mr Page?
• What works are required, if any, to prevent the tree causing damage to Mr Page's property, or causing injury, and how should those works be carried out?
• How should the cost of any tree works be apportioned?

Onsite hearing

4 The onsite hearing allowed observation of the tree from both properties and of the areas of Mr Page's property he says are at risk from the tree. The Pages have lived at their property for 15 years and the Langs have lived at theirs for 10 years.

5 The tree, a mature Eucalypt near the rear boundary, has grown here for many years and was already a large tree before either party purchased their property. It is approximately 25 m tall and is in good health. Its stem forks into two near its base. It has some overextended limbs, typical amounts of deadwood, but generally good structure. Due to the aspect, and possibly the presence of a nearby tree that has now been removed, its crown is biased to the north so that it predominantly overhangs the Pages' tennis court in the rear garden of their property. Fences around the tennis court are in good condition, having been repaired after limbs fell and caused damage. Small square patches on the tennis court surface indicate where it has been repaired.

6 Two branch stubs at around 8 and 10 m height on the stem remain from the branch failures in 2011 and 2006 respectively. The limbs were approximately 20 cm and 25 cm in diameter, respectively, at their points of failure. The 2011 failure occurred just beyond a small decayed branch. Termite mud can be seen in the end of the remaining branch stub.

7 Two splits pointed out by the applicant, one in the stem and another in a large limb, appear to be growth splits that are in the bark only.

8 Mr Page has kept approximately 13 dead branches he says have fallen from the tree onto the tennis court. These branches are 1-2 m long and up to 50 mm in diameter.

9 Mr Page supplied documents detailing the costs of clean-up and repair works on his property, and the extent of his own liability as to those costs. He also provided copies of correspondence between the parties.

10 Mrs Lang provided a copy of the permit from Ku-Ring-Gai Council for tree pruning, a copy of a quotation for tree pruning works and a copy of a report from a pest control company.

Timeline

11 The following timeline indicates key events.

• April 2006: discussion about the tree at a social event.
• 30/10/2006: branch fell onto Mr Page's property resulting in damage. His insurer met the cost of repairs apart from the $100 excess.
• 10/11/2011: another branch fell onto Mr Page's property resulting in damage. His insurer met the cost of repairs apart from the excess of $500.
• 13/11/2011: applicant wrote to respondent requesting that the tree be pruned and notifying of intention to apply to the Court if the tree is not pruned.
• 8/12/2011: Ku-Ring-Gai Council issued a permit for pruning.
• 16/2/2012: respondent wrote to applicant requesting that he pay half of the cost of pruning works and suggesting works be done from within the applicant's property.
• 4/4/2012: application filed with the Land and Environment Court.

Submissions

12 Mr Page submits that the tree poses a risk of causing further damage to his property, being his tennis court, garden plantings, fences and dwelling. He also says the tree poses a risk of injury to people on the tennis court or in the garden or dwelling. He does not see why he should be out of pocket for damage caused by his neighbour's tree when that damage occurred after discussions about the tree. Mr Page says that removal of another tree on the respondent's land some time ago may have increased the risk of limbs failing in the subject tree.

13 Mrs Lang submits that she has the tree inspected annually for termites. She is willing to have the tree pruned but argues that, as Mr Page will benefit most from the pruning through the reduction of risk to his property, Mr Page should bear the cost. The respondent submits that Council's tree officer suggested to her that the applicant should pay as the applicant will benefit most from pruning. This seems beyond the role of the council officer and is not something I am going to take into consideration here. Out of her generosity, she says, she has offered to pay half.

14 Regarding compensation, Mrs Lang says that Mr Page chose to lower his insurance premiums by including an excess, when he could also have chosen to have no excess by paying higher premiums. In her view, he has taken the risk and should bear the cost of the insurance excess.

15 The respondent supplied to the Court extensive weather records from the Bureau of Meteorology showing rainfall and wind speed data for the area. She submits that this demonstrates that limbs did not fall from the tree during recent periods of high rainfall and winds, and that this demonstrates limbs are unlikely to fall in future. She also points out that the permit from Council is only a permit and is not a report that says the tree is dangerous. Neither party has obtained a report on the tree from an arborist.

16 There is some disagreement between the parties about whether or not Mrs Lang suggested that Mr Page should seek some of the cost of pruning works from another neighbour, the Logans. I see no relevance of that issue in determining any orders.

17 The parties also disagree about the nature of a discussion regarding the tree in April 2006. The discussion took place at a social event. Mr Page submits that he raised concerns about the risk posed by the tree. Mrs Lang submits that Mr Page was only concerned about leaves falling onto the tennis court.

Does the Court have jurisdiction to make orders?

18 The tree grows on land adjoining the applicant's. The applicant has made a reasonable effort to reach agreement with the tree's owner. The tree has caused damage to the applicant's property. Deadwood and overextended limbs are likely to fall, so the tree poses a risk of further damage or of injury. Of these matters I am satisfied and therefore, according to s 10 of the Act, the Court's jurisdiction is enlivened and I can make such orders set out in s 9 as I see fit to remedy, restrain or prevent damage to the applicant's property, or to prevent injury, as a consequence of the tree.

Matters to be considered

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

S 12(a). The tree is on the respondent's land close to the boundary. It is some distance from dwellings. Falling limbs are unlikely to affect dwellings; total tree failure would be likely to damage a dwelling.

S 12(b). Interference with the trees would require consent from Ku-Ring-Gai Council under the Environmental Planning and Assessment Act 1979. Consent for pruning has been obtained by the respondent.

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

S 12(b2). From external observation from the ground only, the tree's structure appears to be generally sound, although deadwood and overextended limbs are likely to fail in the near future. These appear to be the main risks. In my view the risks can be dealt with by pruning. Such pruning would not be excessive and could be done in accordance with AS 4373 Pruning of Amenity Trees.

S 12(b3). The tree contributes to the landscaping of the land on which it is situated. It provides protection from the sun and contributes to the property's amenity.

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

S 12(d). The tree is part of the local ecosystem and contributes to local biodiversity and habitat values.

S 12(e). The tree contributes to the natural landscape and scenic value of the land.

S 12(f). The tree can be seen from public land and has some value to public amenity.

S 12(g). Removal of the tree would be 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 tree causing damage or injury.

(ii) The applicant has notified the respondent. The respondent has obtained a permit for tree pruning works but has not undertaken those works.

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

Termites

20 Under this Act the Court does not have jurisdiction over termites, as explained in Robson v Leischke [2008] NSWLEC 152. However, their possible impacts on a tree's structure is relevant. It may be appropriate to order ongoing termite inspections for this reason, i.e. to prevent damage or injury. I note that Mr Lang says they intend to continue with their current routine of annual inspections anyway.

What amount of compensation, if any, would be appropriate to remedy any loss incurred by Mr Page?

21 There is no evidence that Mr Page had notified Mrs Lang of any concerns regarding risk prior to the first limb failure event. The content of the informal conversation at an earlier social event is unclear. Mrs Lang had not had the tree inspected by an arborist and was unaware that the tree may pose a higher risk than any other tree. This is similar to Robson v Leischke [2008] NSWLEC 152, in which Preston CJ, at (224), refers to the principle that the liability shall lie where it falls. There are no circumstances here that would lead me to take a different approach; therefore there will be no orders for compensation arising from the earlier limb failure.

22 Mrs Lang may not have been aware of the risk in the first event but was then essentially on notice, if not directly from Mr Lang then from the incident itself. On this basis she should pay compensation of $500 for the second limb failure.

What works are required, if any, to prevent the tree causing damage to Mr Page's property or causing injury, and how should those works be carried out?

23 There is a risk of further limb failure. Pruning can deal with the risk. Overextended limbs and deadwood can be removed without damaging the tree. Mr Page says is willing to provide all necessary access for these works to be carried out in an efficient manner.

How should the cost of any tree works be apportioned?

24 The tree belongs to the respondent. Others may share the benefits of the tree, and Mr Page may be exposed to most of the risk posed by the tree. Nevertheless it is the Court's position that, unless unusual circumstances would suggest otherwise, the tree's owner will be responsible for its maintenance.

Orders

25 Considering the foregoing, the orders of the Court are:

(1) The application is upheld in part.

(2) The respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF Level 3), with all appropriate insurances, to prune the gum tree to remove the two low overextended limbs over the applicant's property, to remove all deadwood greater than 25 mm in diameter over the applicant's property, and to reduce the remaining live crown above the applicant's property by 10-15% by reducing the longest limbs back to suitable lateral branches. At the time of these works the arborist is to carry out an aerial inspection of the tree to identify any hazardous limbs and remove or prune those limbs as necessary.

(3) All works in order (2) are to conform to AS4373 Pruning of Amenity Trees and to the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(4) During the works in (2) the applicant's property is to be protected by any means necessary to prevent any damage.

(5) The works in order (2) are to be completed within 30 days of the date of these orders.

(6) The respondent is to provide the applicant with 5 working days notice of the works in order (2).

(7) The applicant is to provide all access required for the works in order (2) to be completed efficiently, during reasonable hours, under his supervision if he wishes.

(8) Every two years within 30 days of the anniversary of the date of these orders the works in (2) are to be repeated, and orders 3, 4, 6 & 7 are to apply to those works.

(9) The respondent is to have the tree inspected annually for termites by a suitably qualified pest control contractor.

(10) The respondents are to pay the applicant $500 within 14 days of the date of these orders.

__________________________

D Galwey

Acting Commissioner of the Court

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Decision last updated: 30 July 2012