Black v Johnson

We have carefully examined the four trees and we have seen the evidence of a number of broken tiles from the Black's roof and branches which have detached from the trees during the immediately recent storm activity which has taken place in the Newcastle region.

One of these is a branch which has detached from the more south-eastern of the two trunks of the most eastern of the four trees. This is a branch which is approximately 80 to 100 mm in diameter at its former point of attachment to the tree.

This branch has fallen onto the Black's property and has damaged some tiles on their roof.

The tree which caused this damage has co-dominant leaders with a degree of reaction wood and some minor included bark between the two leaders. These features are located at their joining about a metre above the ground.

There is evidence not only of that branch having naturally detached itself from the tree but are also at least two other branches having similarly detached themselves.

We are satisfied, on the basis of the damage to Mr Black's s roof that, with respect to that tree, the first of the provisions of s 10(2)(a) of the Act have been satisfied - that is that that tree has, in the past, caused damage to the Black's property. We are satisfied from our inspection of the tree and the matters noted at (5) and (6) that it is appropriate to order the removal of that tree.

With respect to the other three trees, there is evidence from Mr Black of him having removed a number of branches from those trees. Indeed, Mr Black readily conceded that he had removed branches from them where they were over his property and, in a number of instances, brushing against his roof.

We are unable to see anything on any of the other three trees which would cause us to conclude that any of the branch detachments for which visual evidence remains have been occasioned naturally (rather than by Mr Black's actions). He was unable to point out any such detachment.

We are therefore satisfied that there was no basis pursuant to s 10(2)(a) or (b) of the Act that would cause us to order the removal of or any intervention with any one of those three trees.

That determination, of course, will not preclude Mr Black making some further application at some stage in the future, should circumstances change significantly.

We turn to consider the question of who should undertake and/or pay for the removal of the one tree which we have decided should be removed.

Prior to the hearing, I had requested Mr Long, solicitor for Lake Macquarie City Council, to bring a copy of the development application file for the Black's residence to the hearing so that we could examine the plans for which consent had been given.

I had made that request as I was concerned that the Black's residence had been approved and erected at a time when the four trees were already significantly grown at a location along the common boundary some metre or so to the south of that boundary.

Indeed, this gives rise to some matters of broader principle which need to be considered in the context of this case but can also be put in general terms as follows: Tree Disputes Principle The existence of a tree prior to the construction of a structure which has subsequently been damaged by the tree is not a matter likely to be taken into consideration on the question of whether or not some order should be made for interference with or removal of that tree or other remedial work. On that question, the seriousness of the damage and any attendant risks are the primary matters for consideration.

If interference with or removal of the tree or other work is warranted because of the extent of the damage the tree has caused or risks now posed by the damage, the fact that the tree was already growing in the vicinity at the time the structure was built is a matter which may be relevant and appropriate to take into account on the question of who should undertake any work and/or apportionment of the cost of such work.

However, it will also be relevant to consider whether or not the tree was self-sown or was planted. If it was planted, consideration will need to be given to the appropriateness or otherwise of: * the type of tree planted; and * the suitability of the location in which it has been planted.

Equally, it will be relevant to consider whether the choice of location for the structure was unnecessary or avoidable or, on the other hand, if it would have been an unreasonable constraint on the development potential of the site had the existence of the tree limited that potential.

In the present circumstances, we have considered what the position would be if there were an alternative design to the Black's residence and have done so in light of the above principles.

We have given that consideration because the house has been constructed, on a cut and fill basis, with a retaining wall some 900 mm to 1 m high behind the house and as close as possible as would be reasonably practicable to the rear boundary (immediately beyond which the trees are located).

We have considered what would be the consequences for the tree which we have determined should be removed had there been an alternative design to the Black's residence. We have considered a possible design moving the eastern element of the house forward some 3 or so metres - that being feasible given the nature of the subdivision pattern of this duplex development.

We considered it appropriate to assess the possible impact of such a design on the tree to be removed to see whether it would change the conclusion that that tree needed to be removed.

We are satisfied that had such a redesign had occurred, then the likelihood of their being a need to remove that tree as a consequence of damage to the residence pursuant to the test in s 10(2)(a) of the Act is unlikely to have been satisfied.

However, the failure of that hypothetical test is not the end of the matter.

We have also reached the conclusion that one element of such a movement to the north (which movement would have been possible without a significant detrimental impact on the existing private open space) would have been the creation of a small pleasant private open space in the south-eastern corner which space would have enjoyed early morning sun.

However, we are satisfied that the tree we propose be removed would have been a likely risk of injury to a person (that being the test pursuant to s 10(2)(b) of the Act) for such a courtyard. Given where we saw the previously fallen branch, it would have fallen in such a courtyard and injured any person there at that time.

We are, therefore, satisfied that there is nothing arising out of the design of the Black's house that would cause us to conclude that Mr Black should bear the responsibility for the removal of the tree (despite the general proposition which we have earlier enunciated).

We therefore propose to grant the application to the extent of requiring the removal of the eastern most of the four trees. We propose to require that such removal to be undertaken by an AQF level 3 qualified arborist with appropriate insurances.

Mr Johnson has not taken part in the hearing. However, Mr Johnson was advised by letter sent to him by express post on the 20 July that he did not need to attend the hearing if he did not wish to do so nor was he obliged to permit access by the Court to his property. If he did not wish to take part but wished to provide material on the matters in dispute, he was given an extension of time to do so.

We note that he has not provided any material about the trees in response to the preliminary findings we made. The letter continued to say: If you are not in attendance and/or do not permit access to your property, the Commissioners will make a decision based on the material available to them - including any material provided by you.

You would be given a copy of the decision of the Court and the orders which were proposed. You would then be allowed a period within which to object to the proposed orders - however, you would not have the opportunity to re-argue any findings of fact which the Commissioners make.

Under the circumstances, we indicate that it is our preliminary intention to order that Mr Johnson remove the tree and that such removal take place within 60 days of the date of the orders of the Court. However under the unusual personal circumstances we have been informed of concerning Mr Johnson, we propose to permit him a deal of time to make submissions to us as to why that period of time should be extended for his compliance with that order.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.