Chan v McDonald [2018] NSWLEC 1692 | Case summary

Land and Environment Court (NSW)|2018-09-19

Background

A large Blackbutt (Eucalyptus pilularis) grows on private property in the northern Sydney suburb of Pymble. Such trees are common in the area, contributing to both the local ecological community and the landscape character of this residential area.
Over the many years since the tree began growing here, preceding the current occupants of the surrounding dwellings, it has grown to a substantial size, its broad canopy reaching almost 30 metres above the dwellings and its stem now some 1.2 metres in diameter.
The tree appears to straddle a common boundary. To the southwest, Colin McDonald ('the respondent') has most recently lived at his property for some years, although it has been in his family much longer and he lived here when he was first born. To the northeast, Chiu Joseph and Tsun Ying Chan ('the applicants') have owned their property since 2009. They developed their property in 2017, building a new dwelling and adding a smaller granny flat close to, and beneath the canopy of, the Blackbutt ('the tree').
Periodically, branches have fallen from the tree. One such branch recently broke tiles on the roof of the Chans' granny flat. The Chans and Mr McDonald could not agree on who should be responsible for carrying out works to the tree. Mr Chan applied to the Court, pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) ('the Trees Act'), seeking orders for the tree to be inspected and pruned at Mr McDonald's expense, and for $330 compensation for repairs to their roof.
The hearing took place onsite, allowing observations of the tree and its surroundings. Bringing my own arboricultural expertise and experience to the matter, I visually inspected the tree from the ground.

The tree's location relative to the common boundary

The fence between the two properties is not in a straight line and is deflected to go around the tree. The parts of the fence that approach it on each side are at different angles. It could not be assumed that the fence accurately indicated the location of the common boundary. Importantly, the tree's location relative to the boundary was therefore unclear. This information is required for two reasons: firstly, to determine if, for the purposes of this application, the tree falls within the jurisdiction of the Trees Act; and secondly, to determine who owns the tree.

Further directions made at the onsite hearing

For the reasons above, I gave the following directions at the onsite hearing: 1. Tsun Ying (Cherie) Chan is joined as the second applicant. 2. By 10 October 2018 (21 days from the date of these directions) the applicants are to engage and pay for a registered surveyor to accurately survey the base of the Eucalyptus pilularis at ground level and to produce a survey plan showing the base of the tree in relation to the location of the common boundary, and the percentage of the stem's area at ground level on each property. To show the level of detail required, the applicants are to provide the surveyor with a copy of Awad v Hardie (No 2) [2010] NSWLEC 1258 (attached to these directions) prior to undertaking the survey. 3. By 17 October (28 days from the date of these directions) the applicants are to send to the respondent by registered post, and file with the Court, a copy of the survey plan. 4. By 31 October (42 days from the date of these directions) the applicants are to send to the respondent by registered post, and file with the Court, any further evidence or submissions on which they intend to rely. 5. By 31 October (42 days from the date of these directions) the respondent is to send to the applicants by registered post, and file with the Court, any further evidence or submissions on which he intends to rely. 6. If the Court receives further evidence or submissions from either party the matter will be set down for a further hearing in Court; otherwise a decision and any orders will be handed down in due course.
The survey might show that the tree is principally on the respondent's land, in which case the Court could make orders, so the hearing continued onsite and submissions were heard from both parties.

The tree must be principally on adjoining land

An application can only be made for a tree that is on land adjoining the applicant's (s 7 of the Trees Act). For the purposes of the Trees Act, the tree is situated on adjoining land if it is wholly or principally on that land (s 4(3)). For boundary trees, the Court has previously found (for instance, Dive v Lin & anor [2017] NSWLEC 1348 at [7], [8], [9]) that, to be principally situated on land, more than 50% of the area of the tree's stem, where it enters the ground, must be on that property.
If there is doubt about the tree's location relative to a boundary, the Court has directed a party to undertake a survey to accurately show the base of the stem and the property boundary, such as in Awad v Hardie [2010] NSWLEC 1213 and Awad v Hardie (No 2) [2010] NSWLEC 1258. Following the directions made above, the Chans filed with the Court a survey plan, a copy of which is included below (redacted to remove addresses).
Mr McDonald subsequently contacted the Court to request that the applicants provide any further information that accompanied the survey, such as a report. Further directions were made for the Chans to serve and file any further information. Mr Chan subsequently explained that there was no further information. The survey shows the shape of buttress roots at a sufficient level of detail that I am satisfied that it accurately shows the location and shape of the tree's stem at, or sufficiently close to, ground level.
The survey plan shows 61.5% of the stem's area at ground level is on Mr McDonald's property. As the tree is principally situated on the respondent's land, the Chans can make this application for orders regarding the tree.

Who owns the tree?

Tree ownership is most commonly determined by the location of the main part of the stem where it enters the ground. Despite the occasional exception to this, I see no reason to do otherwise here. For many trees, the stem's base is entirely located within a single property and its ownership is clear. In such cases, the tree's branches and roots belong to the tree's owner, even if they spread onto a neighbouring property.
When a tree's stem base straddles a property boundary, it is often known as a 'boundary tree'. Preston CJ discussed ownership of boundary trees in Robson v Leischke [2008] NSWLEC 152 at [150]-[154]. If it is known that the boundary tree was earlier located entirely on one property, but now straddles the boundary due to its stem growth, or to landslip, the tree remains the property of its original owner. If, on the other hand, the tree appears to have always straddled the boundary, or its point of origin is unknown, its ownership is shared by the owners of both properties.
Despite the proportion of the Blackbutt's stem on each property, the centre of its stem is close to the boundary. Buttress roots, which have developed during maturity, appear to account for some of the additional stem area on the respondent's land. It is not possible to establish if the tree grew at first on one property. Consequently, I find it is a boundary tree with ownership shared by the Chans and Mr McDonald.
Although the Trees Act establishes which property owner may make an application regarding a boundary tree such as this, it does not affect the shared ownership, and resulting property rights, under common law.

The applicants' submissions

In the applicants' eyes, the tree is Mr McDonald's responsibility. They want it inspected at regular intervals, and pruned as necessary, at his expense. They also want to be reimbursed $300 for replacing roof tiles broken by a falling branch.

The respondent's submissions

Mr McDonald argues that the Chans chose to locate their granny flat close to the tree and beneath its crown. He says it is closer than recommended by an arborist at the time of their development application, and it is unclear if they followed arboricultural advice provided at that time. He also argues the dwelling was constructed illegally.
Mr McDonald is of the view that the tree is on the boundary and each party should be responsible for any pruning they require, and for any property damage they suffer as a result of falling branches.
Mr McDonald seems to take a pretty relaxed attitude to the tree, accepting its size, condition and, to some reasonable extent, any risk it poses. The Chans have a higher level of concern, perhaps resulting from the location of their granny flat beneath the tree's canopy, a result of their own choices when they developed their site. The impetus for pruning the tree comes from them.

What works are required?

The Blackbutt appears to have average vigour for the species and to be free of major structural defects. Of course, structural defects high in the crown may be obscured from the ground, but would be apparent during a visual inspection done by an arborist doing any pruning work.
It is likely that dead branches, and possibly other branches, especially any overextended limbs lower in the crown, will fall from the tree in the near future. However, pruning can sufficiently minimise this risk.
The Chans chose to add a second dwelling to their property, beneath the tree. To some extent, then, the risk of damage that results from this situation was apparent at the time and was of their choosing. In my mind, if pruning is carried out, the residual level of risk will be reasonable.

Who should pay for the works?

As co-owners of the tree, both parties will share equally the cost of carrying out pruning works.

Ongoing works should not require Court orders

Mr McDonald suggested further pruning should be undertaken every three years with costs shared between himself and the Chans. The suggestion is reasonable, but because this is what would normally be required in a situation such as this, there should be no need for the Court to order this. The parties are now aware of the tree's shared ownership and can carry out future works in a manner on which they agree.

Compensation

As the Chans are part owners of the tree, I see no reason for Mr McDonald to bear the cost of recent repairs to their roof. The Chans chose to locate a second dwelling beneath the crown of this large tree. In Black v Johnson (No 2) [2007] NSWLEC 513 the Court established a principle at [15] explaining that the presence of a tree at the time a structure was built might be a relevant consideration when determining who should undertake works or how the costs of works might best be apportioned. The Chans had some flexibility in determining the layout of buildings when they developed the land, but chose to locate a granny flat beneath the tree. It is reasonable to expect them to pay for damage to their own property as a result of limbs falling from a tree of which they share ownership.

Orders

As a result of the foregoing the orders of the Court are: 1. Within 14 days of the date of these orders the applicants are to obtain, and provide copies to the respondent, three quotes from suitably qualified arborists (minimum AQF level 3) with all appropriate insurances to carry out the following pruning works on the Blackbutt in accordance with the guidelines of the WorkCover NSW Code of Practice for the Amenity Tree Industry and AS4373 Pruning of amenity trees: 1. remove all deadwood greater than 50 mm diameter; 2. reduce long limbs that extend farthest from the stem, pruning to suitable lateral branches, removing no more than 15% of live crown mass; and 3. remove any limbs with major defects that appear likely to lead to failure within the near future. 1. Within 60 days of the date of these orders the applicants are to engage the contractor with the cheapest quote, or another if the applicants and the respondent agree on an alternative, to carry out the pruning works in (1). 2. The applicants are to give the respondent two days' notice of the pruning works. 3. Both parties are to allow any access necessary for these works during reasonable hours of the day. 4. Within 14 days of receiving a copy of the paid and receipted invoice for the completed works, the respondent is to pay the applicants 50% of the quoted amount.

D Galwey Acting Commissioner of the Court

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: 03 January 2019

(2008) 159 LGERA 280

Chan v McDonald

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