Aubrey v Garside

Yang v Scerri [2007] NSWLEC 592 CASES CITED: Buckingham v Ryder [2007] NSWLEC 458 Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280

APPLICANT Mr T Taouk (Solicitor) SOLICITOR Giles Payne & Co. Solicitors LEGAL REPRESENTATIVES: RESPONDENT Mr P Jessup (Solicitor) SOLICITOR Jessup and Storm

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT 1 ACTING COMMISSIONER: Nine trees and an assortment of shrubs (the trees) grow on the western side of 212 Caringbah Road, Caringbah (the property) near the common boundary with the adjoining property to the west. The property is owned by Mr Garside. The trees are located from near the front, northern boundary to about 40 m south. All but the most southern tree are growing below a rock ledge on the property, in an area that has the appearance of a bush garden with remnant native trees, planted rainforest and damp area trees, and various luxuriant and hardy exotic shrubs. This area is not easily accessed from the upper part of the property where Mr Garside's house is located. The trees and some of the shrubs overhang the adjoining property to the west.

2 Mr and Mrs Aubrey (the Aubreys) are the owners of 214 Caringbah Road, Caringbah, the adjoining property to the west. They live in a quiet cul-de-sac adjacent a bushland park, across the road from Yowie Bay. Theirs is a neat brick and weatherboard home with a spacious covered patio that overlooks the level, well maintained front yard on the northern side of the house. That yard consists of an eastern and western lawn divided by a long, level driveway that is also the pedestrian entry. The eastern lawn contains an attractive group of five Scribbly Gums which have some of their branches interlaced with branches of Mr Garside's trees. The western lawn contains a grand old Sydney Red Gum. Two very large Gum trees grow on the western side of the house, with large branches overhanging the roof. Mr Aubrey is 85 years old. His daughter and her family live in the house next door on the southern side. His grandchildren often play on the lawns and driveway in his front yard.

3 Mr Aubrey has been making complaints to Sutherland Shire Council about vegetation on Mr Garside's property for 23 years since 1986. Documents pertaining to the dispute between the neighbours in relation to trees and/or vegetation along the common boundary were obtained from the Council by Mr Aubrey. Those documents made a pile about 1 cm thick, with some pages containing multiple entries.

4 The Aubreys make their application under the Trees (Disputes Between Neighbours) Act 2006 to rectify and prevent property damage, to prevent injury to people, and seeking compensation for legal costs. They were represented at the hearing by solicitor Mr Tony Taouk of Giles Payne & Co. Mr Aubrey also attended the hearing and was accompanied at times by his wife and their daughter and son in law.

5 The Aubreys seek the following orders: 1. That the trees numbered 2, 4, 5, 6, 7, and 8 … be removed completely. 2. That the trees numbered 1, 3, and 9 … be pruned back to the boundary dividing the properties ….. 3. That the overgrown and dead vegetation (including, but not limited to, the Pencil Pines, Oleander and Monstereo) along the boundary dividing the properties … be removed completely. 4. Costs.

6 The Aubreys' original application sought orders for restoration of lost sunshine, and repeatedly stated the risk of fire hazard from the trees. At the hearing Mr Taouk also sought orders for removal of fallen debris from the trees on the basis of fire hazard. Mr Taouk and Mr Aubrey repeatedly emphasised the longevity of the dispute, claiming that Mr Aubrey deserves a final and permanent solution to his wish that no part of the trees ever overhang his property.

7 The Aubreys provided an arboricultural report prepared by Mr Laurie Dorfer of Urban Tree Management Australia Pty Ltd, dated 30 April 2009. Mr Dorfer also attended the hearing. On reading the report I found that it addressed the relevant issues with suitable detail, and avoided superfluous information and pages. After observing each tree at the hearing, I find Mr Dorfer's report to be accurate and impartial. The report addressed each tree as follows: o Description of the tree including condition and defects, and methods of investigation; o Works recommended to establish an acceptable safe tree; o Additional works requested by the client. I find that format helpful, and recommend it to other arborists when preparing a report in accordance with the Expert Witness Code of Conduct in Schedule 7 of the Uniform Civil Procedure Rules 2005, for matters where an applicant seeks orders for interference with a tree under the Trees (Disputes Between Neighbours) Act 2006 .

8 Mr Garside was represented at the hearing by solicitor Mr Peter Jessep of Jessep & Storm. Mr Garside also attended the hearing. Mr Jessep proposed alternative orders that are largely based on the recommendations of Mr Dorfer's report, summarised as follows: o Trees numbered 4, and 6 be removed entirely; o The other trees generally to have large dead wood - minimum 25 mm diameter and/or greater than 1 m in length removed every 3-5 years approximately; o Selective pruning of trees numbered 2 and 3, and o Reduction of undergrowth along the boundary line to reduce fire hazard; o Each party pay its own costs.

9 When assessing an application under the Trees (Disputes Between Neighbours) Act 2006 the Court must be satisfied that one or more of the four tests in s 10(2) (a) and (b) of the Act are met by each tree before making an order regarding that tree. These tests are: Has the tree caused damage to the applicant's property ? Is the tree now causing damage to the applicant's property ? Is the tree likely in the near future to cause damage to the applicant's property ? Is the tree likely to cause injury to any person?

10 Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of: Is the damage or risk sufficiently serious to warrant the Court intervening? If so, what should the Court order? Who should pay to carry out those orders?

11 Further, before determining an application, the Court is to consider the matters in s 12 of the Act. Trees addressed in the arboricultural report 12 I have adopted the tree numbering used in the Aubreys' application and in Mr Dorfer's report dated 30 April 2009. I find that the trees are as described in Mr Dorfer's report, except for Tree 1 from which the largest dead branch has been removed since his inspection. My findings with regard to each tree are based on my observations of each tree, Mr Dorfer's report, and other information provided by the parties.

13 Tree 1, Scribbly Gum, overhangs the Aubreys' front yard where they do gardening and where their grand children often play. It has dropped dead wood in the past but has not caused damage to the Aubreys' property. I find that the dead wood in the crown of the tree is likely to cause injury, thus meeting the test in s 10(2)(b) of the Act.

14 Tree 2, Coachwood, is close to the common boundary, and the bushy branches overhang a little. The top stem of the tree, about 40 mm thick broke and fell about a year ago. It had been damaged by borers. There is no indication that further failure is likely. I find that this tree does not meet any of the tests in s 10(2)(a) or s 10(2)(b) of the Act.

15 Tree 3, Callistemon, has some bushy branches overhanging the boundary. One small branch has been identified as having included bark, but I find that even if the branch were to fail, it is not likely to damage the Aubreys' property or injure any person. Therefore I find that the tree does not meet any of the tests in s 10(2)(a) or s 10(2)(b) of the Act.

16 Tree 4, is a large dead tree that has lost its scaffold branches. It has deterioration at the base, is likely to have termites, and appears to have advanced decay in the upper, heavy timber. Mr Dorfer considers it may fail in part or full at any time without warning. I find that it is likely to fall onto the Aubreys' property, meeting the test in s 10(2)(b) of the Act.

17 Tree 5, Cheese tree, has some bushy branches overhanging the boundary. It is in good condition with no structural defects. Therefore I find that the tree does not meet any of the tests in s 10(2)(a) or s 10(2)(b) of the Act.

18 Tree 6, Sydney Red Gum. Its two trunks have grown from an old stump. The northern trunk has very poor attachment at the base, and the southern trunk has damage with fungal fruiting bodies at about 5 m above ground. I find that it is likely to fail and fall onto the Aubreys' property, meeting the test in s 10(2)(b) of the Act.

19 Tree 7, Grey Gum. A large live branch broke from this tree in 35 knot winds sometime between 10 and 25 years ago. That branch did not cause damage to the Aubreys' property, and I find on the basis of the arborist's report that damage from live branch failure is not likely in the near future. However, the tree has active termites, and large dead wood overhanging the entry steps into the Aubreys' house. On that basis I find that injury is likely, thus meeting the test in s 10(2)(b) of the Act.

20 Tree 8, Grey Gum. This tree is growing in the soil behind a large rock. The trunk is touching the rock but there is no structural defect identified in the tree. However, there is large dead wood overhanging the Aubreys' roof, and on that basis I find that damage to the roof is likely in the near future, thus meeting the third test in s 10(2)(a) of the Act.

21 Tree 9, Scribbly Gum. This tree has large dead wood overhanging the Aubreys' roof. On that basis I find that damage to the roof is likely in the near future, thus meeting the third test in s 10(2)(a) of the Act. Overgrown and dead vegetation along the boundary 22 I observed the other vegetation brought to my attention at the hearing by Mr Taouk and Mr Aubrey. Their claim is that the vegetation is a fire hazard, vegetation overhanging should be pruned back to the boundary, and fallen tree debris should be removed.

23 Mr Aubrey says that there have been three bushfires in Kareena Park, the bushland reserve across the road to the north, in the past 50 years, the latest fire being in 1993. He accepts that none of those fires have spread to Mr Garside's property or his own, but says that is because of his efforts to hose the area during the latest fire. He claims that Mr Garside did a "cosmetic" clean up of the area in 1994 but has done nothing since.

24 For the vegetation to be likely to cause damage to the Aubreys' property by fire in the near future, that being a period of about 12 months as applied by the Court in Yang v Scerri [2007] NSWLEC 592 and a number of other cases, it would be necessary for there to be a bushfire in nearby bushland within the next 12 months. No specific evidence has been provided that a bushfire is likely in that period, but I note it is 16 years since the last fire, and the frequency of fires in Kareena Park is said to be three in the past 50 years, that possibly being an average of about 16 to 17 years.

25 The vegetation brought to my attention is two Oleander bushes, a small pencil pine that is possibly a Callitris sp., a small fig tree growing on the rock face that is possibly Ficus rubiginosa, various Hibiscus, Malvaviscus and other luxuriant leaved shrubs, and Monstera vine.

26 Monstera is a vine, and taking a similar approach as was held in Buckingham v Ryder [2007] NSWLEC 458, that a vine is not a tree, I find that Monstera is not a tree for the purposes of the Act . If I am wrong in this regard, I understand that Monstera plants have very low flammability and are not likely to cause damage or injury by burning. Therefore the Monstera does not meet any of the tests in s 10(2)(a) or s 10(2)(b) of the Act.

27 I understand that Oleander, Ficus rubiginosa, Hibiscus, Malvaviscus and the other luxuriant leaved shrubs also have very low flammability and are not likely to cause damage or injury by burning. Therefore none of them meet any of the tests in s 10(2)(a) or s 10(2)(b) of the Act.

28 The pencil pine is very small with sparse foliage. The Aubreys have not provided any evidence of its flammability, and it does not seem to have sufficient biomass to present a fire hazard. On that basis I find that it does not meet any of the tests in s 10(2)(a) or s 10(2)(b) of the Act.

29 In relation to the fallen tree debris, the Aubreys ask me to consider that the collective debris from the trees is a serious fire hazard. I note that the Council has inspected the property in response to Mr Aubrey's concerns, and a Council record dated 13 February 2009 notes Rob Taylor of "Fire Control" inspected the site and believes it merits attention, but no orders for work have been made by those bodies which are likely to have specialised fire hazard knowledge. I also note that a letter to Mr Garside from Council dated 15 May 2009 is a notice of intention to give an order, but that order would be to clean up the western side of the premises to ensure that it does not provide a harbourage for vermin, it does not mention fire hazard. On that basis I find that the evidence does not show that the fallen tree debris is a fire hazard, and therefore the debris does not meet any of the tests in s 10(2) of the Act in that regard. As the debris does not meet any of those tests, it is not necessary at this time to decide whether the accumulated debris is a "tree" in accordance with s 3(1) of the Act.

30 No evidence has been provided that any of the "overgrown" trees and shrubs overhanging the boundary have caused damage, are now causing damage, or are likely in the near future to cause damage to the Aubreys' property, or likely to cause injury to any person. Thus none of the tests in s 10(2)(a) or s 10(2)(b) of the Act are met by any of those trees and shrubs. Access to light 31 In response to the Aubreys' request in their original application, that the Court order restoration of lost sunshine to their property. Preston CJ discussed access to light and views in Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 [para 173]. His Honour states: Obstruction of a view from land or of access to light on land by a tree situated on adjoining land does not constitute "damage to property on the land ". Therefore the mere presence of shade from the tree does not meet the tests in s 10(2)(a) of the Act. Further, regarding situations of a tree obstructing a view or access to light, his Honour states: Although the New South Wales Law Reform Commission recommended that the new statutory scheme should address such concerns, the legislature expressly declined to do so, as the second reading speech and Parliamentary Debates plainly state. Costs 32 Commissioners do not have the power to order payment of legal costs, costs of expert reports, application fees to the Court and other expenses (including personal expenses). Where a Commissioner has heard and determined a tree application, any party seeking an order for costs of the proceedings must apply for costs by notice of motion filed within 28 days of the final orders in the proceedings. Considerations 33 Under s 12 (d) of the Act, I note that the Scribbly Gums, Grey Gums and Sydney Red Gum are likely to be remnant trees of the local native vegetation. The Cheese tree and Fig tree are likely to be remnant or self-seeded. The Coachwood and Callistemon are planted trees. Regardless of provenance, all the trees are likely to make an important contribution to the local ecosystem. Many species of birds are likely to use the trees for food and shelter, and other animals are also likely to use the trees as a corridor to Kareena Park.

34 Under s 12 (e) of the Act, I find that the trees contribute to the natural landscape and scenic value of the property and the entry to Kareena Park.

35 Under s 12 (f) of the Act, I find that the trees provide intrinsic value through oxygen production, carbon sequestration, cooling summer shade, and deflection and dispersal of strong winds.

36 Under s 12 (h)(ii) of the Act, I note that since the directions hearing, Mr Garside has had the largest dead branch removed from the Scribbly Gum Tree 1, and has begun a general clean up of the relevant part of his property.

37 Under s 12 (j) of the Act, I note that at the hearing they have reached agreement for some works that I am not able or willing to order. At their request, with consideration of the many years of dispute between the parties, I record their agreement that the following works will be carried out by 30 November 2009: 1. Tree 2, Coachwood. The small branch about 4 cm diameter arising about 3 m above ground on the western side of the tree shall be pruned off at Mr Garside's cost; 2. Tree 3, Callistemon. The small, second order branch about 4 cm diameter arising from a junction with included bark at about 0 . 6 m above the major fork at about 6 m above ground shall be pruned off at Mr Garside's cost; 3. Tree 8, Grey Gum. The parties agree to apply to Council for removal of this tree, and if consent is granted, to remove the tree at the Aubreys' cost. Orders 38 The application is upheld in part, and the Court makes the following Orders by Consent that apply to 212 Caringbah Road, Caringbah, and 214 Caringbah Road, Caringbah: a. Tree 1, Scribbly Gum; Tree 8, Grey Gum; and Tree 9, Scribbly Gum; shall be pruned to remove all dead wood that has diameter greater than 25 mm and/or length greater than 1m. The pruning shall be completed by 30 November 2009. Each tree shall be similarly pruned at periods of not more than 5 years thereafter, for so long as that tree remains. The pruning work shall be done at Mr Garside's cost by an AQF Level 3 arborist who has suitable insurances, and the work shall be done in accordance with the Australian Standard AS 4373-2007 Pruning of Amenity Trees , and the NSW WorkCover Code of Practice for the Amenity Tree Industry (1998) ; b. Tree 4, Dead tree; and Tree 6, Sydney Red Gum; shall be removed by 30 November 2009 at Mr Garside's cost by a contractor who has suitable insurances, and the work shall be done in accordance with the NSW WorkCover Code of Practice for the Amenity Tree Industry (1998); c. The work described in a. and b. above shall take place at reasonable times, and on reasonable notice to the Aubreys, and the Aubreys shall grant access over their property for the work to be done; d. Tree 7, Grey Gum; shall be removed by 30 November 2009 at the Aubreys' cost by a contractor who has suitable insurances, and the work shall be done in accordance with the NSW WorkCover Code of Practice for the Amenity Tree Industry (1998) ; e. The work described in d. above shall take place at reasonable times, and on reasonable notice to Mr Garside, and Mr Garside shall grant access over his property for the work to be done.

      Peter Thyer
      Acting Commissioner of the Court

A copy of the formal orders may be obtained from the Court's registry upon payment of a fee. Details are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/

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