Callaghan v Beverley

The on-site hearing

1. All parties attended the on-site hearing. Ms Beverley and Mr Callaghan were accompanied by their partners, while Council was represented by Mr Ede, Solicitor; Mr Michael Taylor, (TMO); and Mr Varley. Though Mr Home was not required to attend, both he and Mr Varley, in their reports, acknowledged and agreed to be bound by the Expert Witness Code of Conduct, contained in Schedule 7 of the Uniform Civil Procedures Rules 2005. Applicant
2. Mr Callaghan seeks orders to remove the tree and this is supported by Ms Beverley.
3. The basis of this claim relates to damage to Mr Callaghan's vehicle caused by an overhanging branch breaking and falling about three years ago, plus debris continuously falling from the tree. He also claims that the tree is likely to cause damage 'to cars' in future, and particularly, that it represents a serious risk of injury. With respect to injury, the Callaghan's advise that their daughter is so fearful that she is scared to sleep in her bedroom, (under tree branches), and that the associated anxiety causes or exacerbates eczema. First Respondent
4. The first respondent, Ms Beverley, seeks removal because of mess, shade, and damage by the tree's roots to her garage, as well as fear of injury from branches over the roof, particularly when the tree moves in storms. She advised that the tree was constantly dropping dead branches, ranging from about 25 mm to 50mm in diameter. Second Respondent
5. The second respondent, Council, resists removal of the tree, consistent with their refusal of previous applications and appeal, on the basis that the tree is fundamentally sound, and is not a significant risk.
6. Council notes the tree as a large, mature example of a local indigenous species, which under the Kiama Development Control Plan 2012, (Kiama DCP), identifies trees of special significance, which should be prioritised for protection wherever possible.
7. Mr Ede references this in Council's submission, as follows; "Under Part 2 of State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 ("SEPP Vegetation"), a person must not clear vegetation in any non-rural area to which Part 3 applies without the authority conferred by a permit granted by the Council under that Part. Part 3 of the SEPP allows Council to prepare a development control plan and make declarations in any manner, including by reference to any of the following: the species of vegetation; the size of vegetation; the location of vegetation (including by reference to any vegetation in an area shown on a map or in any specified zone); and the presence of vegetation in an ecological community or in the habitat of a threatened species. Appendix 4 to Chapter 3 - Preservation and Management of Trees of the Kiama Development Control Plan 2012 ("Kiama DCP") identifies trees of special significance. Among the trees identified as having special significance is the Ficus obliqua. The relevant provision of the Kiama DCP provides as follows: Indigenous Fig Trees Ficus macrophylla, Ficus obliqua, Ficus rubiginosa, Ficus superba The Kiama region mature and historic Fig species are a reminder of the area's once dominant sub-tropical rainforest. As development of the area occurred, many of these trees were lost and so the need to conserve the remaining mature historic trees for future generations is most important. Design Criteria No structures shall compromise the health and integrity of the roots and canopy of the tree or trees. Wherever possible access ways should be located beyond the dripline. In locations where access can only be located or partly within the dripline segmented pavers approved by Council shall be used. Alternatively, a suspended structure will be provided which allows vehicular and pedestrian access without impacting upon the tree root system and which allows aeration and water penetration."
8. The tree is in good condition, particularly considering its maturity and recent harsh climatic conditions. It contains a low level of deadwood.

Jurisdictional requirements

1. With respect to s 7, an owner of land may 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 to which this Act applies that is situated on adjoining land.
2. The Court is obliged to consider a number of matters pursuant to s 10 of the Act.
3. As required by s 10(1), I am satisfied that there has been an attempt by the applicant to reach agreement with the owner of the land on which the tree is situated, given this unusual situation where the applicant and the first respondent are in agreeance.
4. The next major test that is posed, by s 10(2) of the Act, is that the Court must be satisfied that the tree concerned has caused, is causing or is likely, in the near future, to cause damage to the applicant's property or is likely to cause injury to any person.
5. Council contends that the jurisdictional threshold tests posed, by s 10(2) of the Act, have not been satisfied and, as such, the Court does not have power to make the orders sought in the application.
6. However, if the Court was minded to make orders, the Council submits that the tree can be appropriately pruned in order to mitigate any concerns raised by the applicant and the first respondent.
7. Mr Ede is correct in noting that any order to remedy, restrain or prevent damage to property pursuant to s 7 of the Act, applies only to property located on the applicant's land, and that evidence relating to damage to the first respondent's property is entirely irrelevant for the purpose of these proceedings.
8. He further contends that there is no evidence of damage that has been occasioned to property on the applicant's property, nor any evidence indicating that there is a likely risk of damage to the applicant's property in the near future.

Damage - past and present

1. Mr Ede refers to Smith v Zhang [2011] NSWLEC 29, where at [38] Craig J discusses the obligation created by s 10 for the Court to be satisfied of the causal nexus between any tree the subject of an application and the damage claimed by an applicant. He says in part: "...That will require an assessment of the totality of the evidence adduced before me. When considering that evidence, it will, nonetheless, require "a preponderance of probability" that the causal nexus exists. Anything less would not be tantamount to the satisfaction required by the section…"
2. Further, at [62] Craig J states: "something more than a theoretical possibility is required in order to engage the power under [the Trees Act] in order to remedy, restrain or prevent damage as a consequence of a tree..."
3. With respect to claimed vehicle damage, Mr Callaghan provided no evidence such as copies of paid invoices for repairs, or photographs which illustrated the damage incident. When I made reference to the vehicle damage near the conclusion of the hearing, I was offered the opportunity to view the vehicle, but even had I viewed it, the presence of such damage in isolation, in the absence of aforementioned evidence, does not satisfy these requirements in terms of causal nexus between this damage and the tree.
4. Both Mr Callaghan and Ms Beverley noted a general annoyance or discomfort associated with the dropping of leaves, fruit, twigs and other material naturally shed from the tree.
5. In this regard, in Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Preston CJ at paragraphs [168] to [173] discusses 'damage' in general and noted at [171] that: "However, annoyance or discomfort to the occupier of the adjoining land occasioned by nuisances of the third kind is not "damage to property on the land" within s 7 of the Trees (Disputes Between Neighbours) Act 2006. Hence, leaves, fruits, seeds, twigs, bark or flowers of trees blown onto a neighbour's land might cause annoyance or discomfort to a neighbour, but unless they also cause damage to property on the neighbour's land they will not be actionable under s 7."
6. The Court has published a Tree Dispute Principle in Barker v Kryiakides [2007] NSWLEC 292 which states that: "For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis. The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree."
7. There are many examples of the application of this Principle. To date it has been adopted consistently and there have been no examples where the Court has been satisfied to the extent required by s 10(2) that any orders should be made for any intervention with a tree on this basis, and so it is with this matter.

Risk of injury

1. In regards to injury, the Court must consider the risk posed by a tree in the foreseeable future based on the characteristics of the tree/s, the history of any failures, any other relevant evidence, and the circumstances of the site apparent at the time of the hearing (McPherson v Lake [2017] NSWLEC 1081 at [101]).

Arborist's evidence - characteristics of the tree

1. Mr Home raised concerns about the tree's stability, and declining health, under the assumption that the tree caused damage to the garage, and the assumption that major roots would be pruned adjacent to the garage in response. No conclusive evidence of the causal link between the Fig and garage damage has been provided, and even if such a nexus exists, the Design criteria in the Kiama DCP stipulates construction based options to resolve this problem, rather than root pruning.
2. Therefore, it is imperative that the tree's health and structural prognosis be based on the current situation, absent of the impact of speculative intervention, particularly when damage to Ms Beverley's property does not fall under the Act's jurisdiction.
3. Mr Home ranks the tree's health at five out of five, while Mr Varley noted "normal vitality". Mr Varley attributes the tree with a Safe Useful Life Expectancy (SULE) rating of B1, which covers "Trees that could be made suitable for retention in the long term by remedial tree care."
4. Mr Home investigated the nature and depth of cavities associated with large old pruning wounds on the trunk, and concluded, largely on the basis of the presence or absence of water in cavities, relative to their location, that a column of decay was present in the trunk "from the centre of the tree (Zone 4) to the base of the tree (Zone 3) and which will increase with time."
5. As noted by Mr Varley, Mr Home didn't, however, conduct any investigation to quantify and clarify the relative thickness and strength of the residual walls of the trunk, nor the decay pattern. Such information is readily obtainable through the use of a Resistograph device, or Sonic tomography, and any conclusions formed in the absence of such evidence, is again based on unreasonable assumptions, given that many sound trees have extensive areas of internal decay with little reduction in strength.
6. Further, Mr Home's assertion that the trunk "decay will increase in time", gives no consideration to the chemical barriers healthy trees normally produce internally to limit the spread of decay, and his conclusion, "that the tree will inevitably need to be removed in the next ten years", based on the assumed root pruning, is also unreasonable.
7. Mr Home's report summary, at 1.3, notes that "major pruning works need to be carried out in the tree which will involve the removal of rubbing and crossing branches and possibly crown thinning. Mr Home has identified a junction of two large twisted branches near the centre of the canopy as exhibiting included bark, which is often a weakness. Based on the arboricultural expertise I bring to the Court, I see no indications of an included junction; rather, normal reaction wood development to be expected with such branch form, which is relatively common for many fig species. I saw no structural problem with this junction.
8. Mr Home's recommendation of extensive pruning of rubbing and crossing branches apparently lacks an appreciation of the nuanced management required for pruning mature trees. While such pruning is strongly recommended for juvenile and semi-mature trees, with most mature trees, as Mr Varley notes, it is only the non-static outer branch sections, beyond the points of contact, that justify consideration for pruning.
9. There is no obvious evidence that suggests the tree's stability in the ground is compromised, nor any major wounds or reported history of branch failures, which may indicate that major limb loss was likely.
10. Mr Callaghan referenced Council's risk matrix and tree assessment criteria in his submission, and notes at [2] that "one of the factors identified as increasing the risk of failure in the Tree Assessment Matrix is increased exposure to wind." The tree's response to altered wind patterns over the last six years, in the absence of the neighbouring Fig, is an important consideration, and I concur with Mr Varley, that branches display appropriate strengthening reaction wood development, or growth striations, throughout areas exhibiting load.
11. Mr Callaghan provided a General Practitioner Doctor's certificate detailing the exacerbation of his daughter's eczema as a result of fear of the branches overhanging her bedroom. This is not admissible, however, as it fails to satisfy the requirements of what is expected of an expert report (Makita (Australia) Pty Ltd v Sprowles (2001) NSWLR 705; [2001] NSWCA 305 at [85]). Notwithstanding this, I was persuaded by Mr Callaghan's contention that the house roof frame was of light construction, and in this light, I reinspected the canopy near and over the roof line.
12. The body of the canopy extending towards the south-west just overhangs the applicant's house roofline, with one branch extending by about 2.5 metres further, over Mr Callaghan's daughter's bedroom. This over-extension renders this branch more vulnerable to wind load than consistently shorter branches in the body of the canopy. Though the likelihood of breakage is low, the branch is sufficiently high and heavy, that should it break, and land on the relatively weak roof, the consequences may be serious. Therefore, I conclude that this branch represents a moderate risk of injury, and thus the jurisdiction of the Act is invoked. Pruning will be ordered to reduce the length of this branch.
13. At [3] of his submission, Mr Callaghan states that "neither of the Arborists reports or council officers can guarantee the structural integrity of the tree and therefore the safety of the residents…..", and he provided many news articles detailing incidents of deaths and injuries caused by Fig tree failure, to support his case.
14. This evidence is not relevant to this tree, as noted in Owners Corporation Strata plan 56927 v Horner [2012,] NSWLEC 1146 at [26]: "The use of examples of tree failures elsewhere has very little relevance to the facts and circumstances of this matter."
15. As with most areas of life, it is not possible to eliminate all risk. The onus is on the applicant to prove their case; there is no requirement on either the arborists, or Council to provide such a guarantee.
16. While it is understandable that the 2014 failure of the adjacent Fig has coloured Mr Callaghan's and Ms Beverley's view of the safety of this fig tree, and perhaps lead them to believe that catastrophic failure is entirely unpredictable, this is not a reasonable conclusion. Each tree must be assessed on its individual merits, and there is no evidence arising from the inspections of Council, either of the consultant arborists, nor myself, which justifies such a conclusion.

Damage - in the near future

1. In a guidance decision published in Yang v Scerri [2007] NSWLEC 592, as a rule of thumb, with respect to damage, the 'near future' is deemed to be a period of 12 months from the date of the determination.
2. In this respect, the branches overhanging the applicant's front yard display appropriate strengthening reaction wood development, or growth striations, throughout areas exhibiting load. This suggests that the branches are gaining strength, as and where required, in response to gravity, and altered wind conditions from the south-west, in absence of the failed Fig.
3. Though my conclusion is thus that damage in the near future is unlikely, the location, and significance of the tree leads me to order Council to develop and implement a limited management plan, covering annual risk assessment, and necessary, appropriate pruning, over the next five years.
4. Given that s 10(2)(b) is satisfied in that a branch presents a risk of injury, the discretionary matters in s 12 must be addressed.

Discretionary matters - s 12

1. In making an order, the Court considers relevant matters in s 12 of the Act.

• The tree is located on the first respondent's land (s 12(a)).
• Pruning or removal of the tree requires consent from Council under the Environmental Planning and Assessment Act 1979. Appendix 4 to Chapter 3 - Preservation and Management of Trees of the Kiama DCP identifies trees of special significance, and this tree clearly justifies this categorisation.
• Any removal of live foliage reduces the photosynthetic capacity, and thus the health of a tree. This tree is mature and old, sensitive to impacts which alter its growing capacity, and therefore any pruning must be prudent and minimal. In May 2018, Mr Callaghan gained Council permission for removal of deadwood, and minor crown lifting to branches overhanging garage and neighbouring garage to allow one metre clearance. Mr Varley noted that some dynamic outer sections of rubbing and crossing branches may also be prone to breakage, and justify removal. This pruning is relatively minor, and reasonable, and should be the initial focus of Council's subsequent pruning specifications (s 12(b2)).
• The tree contributes to protection from the sun, and from wind, to landscaping, to the amenity of both the applicant's and first respondents' property, and to the immediate locality. The tree has historical significance, and is visible from neighbouring houses, and thus has intrinsic value to public amenity (s 12(b3)(c)(e)(f)).
• Being a species indigenous to this area, the tree's flowers and fruit, trunks and branches could be expected to provide food and or shelter for local fauna, and thus would contribute significantly to the local ecosystem and biodiversity (s 12(d)).
• Given the size of the tree, and the likely vast spread of its root system, even though the land is fairly flat, the tree is likely to be providing benefit to soil stability, and, particularly, to absorbing water and reducing run off (s 12(g)).
• With respect to anything, other than the tree, that has contributed, or is contributing, to any such damage, or likelihood of damage, including any act or omission by the applicant (s 12(i)), one must consider that the tree was there first.
• The Court has published a Tree Dispute Principle which says, in summary, that the fact that the tree was there first should not impact on whether or not some order should be made about the tree but, subject to a range of matters discussed in the Principle, the prior existence of the tree may be a relevant matter to be considered when deciding who should meet the cost of carrying out any orders which the Court might make (Black v Johnson (No 2) [2007] NSWLEC 513).

Conclusions

1. The applicant has provided evidence such that I am satisfied that a branch, over-extended above his house, represents a sufficient risk of injury to engage the jurisdiction of the Act.
2. This is a significant historic tree, the likes of which are rapidly becoming scarcer. The tree provides many environmental services such as shade, privacy, contribution to local amenity, and it makes a major ecological contribution to biodiversity, in terms of habitat and as a food source.
3. Regrettably, the applicant and first respondents are reluctant stewards of this tree, and are fearful about its presence.
4. In this situation, where the tree provides high value to the community, but is viewed as a liability by Mr Callaghan and Ms Beverley, it is reasonable that Council shall share responsibility for its monitoring and management.
5. The cost of the initial pruning shall be shared by the applicant and first respondent, as flows from the fact that 'the tree was there first'.

Orders 1. Within 60 days of these orders, the respondents shall contract an arborist, with all appropriate insurances, to reduction prune one branch of the Fig, which extends over the applicants' roof in a south - westerly direction, back to an appropriate junction within the canopy, such that the pruning complies with AS4573:2007 (Pruning of Amenity Trees) 2. Council shall develop a level 2 inspection strategy (based on ISA Tree Risk Assessment Qualification format) and a pruning strategy for the Fig tree (particularly in regard to branches overhanging the adjacent nature strip), and implement it for a period of five year from the date of these orders. This strategy shall entail inspections completed annually, plus after major storms, and they shall be undertaken at Council's expense. Any tree pruning recommended from these inspections shall be subject to standard Council application requirements, and fees, and any such works are to be completed at the applicants' and or respondents' expense. 3. All pruning shall comply with AS4573:2007 (Pruning of Amenity trees). 4. All pruning and inspections shall be completed by arborists with a minimum Arboriculture qualification of AQF level 3. 5. All tree works shall comply with the Safe Work Australia 'Guide to Managing Risks of Tree Trimming and Removal Work, 2016. 6. The cost burden for the pruning in Order 1 shall be shared equally between the parties. Upon completion of this work, the respondent shall supply the applicant with a copy of the paid invoice, and the applicant shall reimburse the respondent for 50% of this cost, within 21 days. 7. The applicant shall provide access for completion of this pruning upon receipt of at least 48 hours written notice of the date and approximate starting time of the works.

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. Decision last updated: 01 April 2020