Cramer & anor v Howard & anor [2015] NSWLEC 1123 | Case summary

Cramer & anor v Howard & anor [2015] NSWLEC 1123 | Case summary | Zoe

The key jurisdictional test in applications made under Part 2 is satisfaction of s 10(2). This states: (2) The Court must not make an order under this Part unless it is satisfied that the tree concerned: (a) has caused, is causing, or is likely in the near future to cause, damage to the applicant's property, or (b) is likely to cause injury to any person.
This must be applied to each of the trees that are the subject of the application.
In a guidance decision published in Yang v Scerri [2007] NSWLEC 592, as a rule of thumb, the 'near future' is deemed to be a period of 12 months from the date of the determination. In regards to injury, the Court considers the risk posed by a tree in the foreseeable future based on the characteristics of the tree/s, any relevant evidence, any history of previous failures and the circumstances of the site apparent at the time of the hearing.
The hearing commenced on site with an inspection of the trees from the applicants' property and then proceeded with an inspection from the respondents' property.
The applicants' property is to the east and downslope of the respondents' property. The three trees in question are growing on the steep sandstone escarpment into which the parties' properties have been set and which is typical of the dissected landscape of this locality. The trees are growing between and within the sandstone shelves and fissures.
The canopies of all of the trees in question, but particularly Trees 1 and 2, partly overhang the applicants' property including their dwelling and pool.
Apart from the three trees that are the subject of the application, there is a large mature Blackbutt at the rear of the applicants' property which is also growing on the escarpment and which partly overhangs their dwelling. There is another younger and smaller Blackbutt growing near the front of their dwelling, not too far from the pool. Apart from the Angophoras and Blackbutts, of which there are many on the surrounding properties, there are many other forest trees and large shrubs in the immediate vicinity.
The first applicant pointed out what he contends is the failure of a retaining wall on which the respondents' driveway is constructed. As described in the 2008 judgment, the concrete slab that forms the driveway has been constructed above the Blackbutt and over part of its root system. It is also above the Angophoras. The exposed edge is visible from the applicant's property and is partially retained. When inspected from the respondents' property, the slab appeared to be in good order with no obvious cracking or displacement.
The applicants are most concerned about whole tree failure. They maintain that over the 15 years they have lived there, the trees have grown much further over their property. The Blackbutt and the Angophoras grow on a slight lean towards their dwelling.
As stated above, the first applicant, who says he is a civil engineer, contends that the retaining wall beneath the driveway slab is failing and this is putting pressure on the Blackbutt and thus increasing the risk of failure. The applicants provided no written independent advice or evidence from a structural engineer.
In regards to the concrete driveway and the retaining wall on which it sits, these structures are on the respondents' land and are therefore beyond the scope of the Trees Act. Section 7 of the Act states: An owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land [an applicant's land], or to prevent injury to any person, as a consequence of a tree [emphasis added] to which this Act applies that is situated on adjoining land.
Also present at the hearing was Mr Kyle Hill, the consulting arborist who first inspected the respondents' trees and who subsequently carried out the orders arising from the 2008 judgment. He has also inspected the trees on a number of other occasions.
The applicants disputed whether Mr Hill should be permitted to provide evidence. Standard tree direction #15 considers 'witnesses required for cross-examination'. It states: If a party or the local council requires any expert or any other witness for cross-examination, notice is to be given at least 5 working days before the final hearing.
Cross-examination is the opportunity of one party to question an expert witness (or any other witness) who has testified or provided evidence for the other party. In this case, the applicants did not avail themselves of this direction however, that does not prevent the respondents from having Mr Hill at the hearing. Indeed, the applicants in their evidence in reply (pursuant to standard direction #9 and filed on 8 April) (Exhibit 1) stated that "Mr Hill will be available to assist the Court and give expert advice." Therefore I am satisfied that the applicants had notice of Mr Hill's attendance.
While I consider that the respondents were not required to give the applicants notice, I granted leave for Mr Hill to give expert evidence and thus assist the Court, especially given his on-going inspections of the trees. I also disclosed that I have known Mr Hill on a professional basis for many years. Exhibit 2 is Mr Hill's signed acknowledgment that he has read and agreed to be bound by the Expert Witness code of Conduct in in Schedule 7 of the Uniform Civil Procedure Rules 2005.
On Mr Hill's oral evidence and as expressed in the brief reports included in Exhibit 1, the trees have been inspected from the ground and or from within the trees at the time of the initial pruning in October 2008, then again in April 2011, May 2012 and most recently in April 2014. The reports indicate minor dead wood, especially at the tips, no noted structural changes, no 'live branch' failure wounds, and no failure incidents reported to him since the previous inspection. That is, Mr Hill observed no discernible changes apart from the normal phasing out and decline of the ends of branches.
When asked, Mr Hill stated that he had not observed any changes at the base of the trees apart from the accumulation of bark.
The applicants questioned Mr Hill's statement prepared in accordance with the 2008 orders on the stability of the trees and the site and the limitations and adequacy of his investigations. They are also concerned that he described the Blackbutt as being mature to over mature in 2008 and that 7 years later, it must be over-mature and therefore dangerous.
The relevant order from the 2008 judgment is 'C' which states: C. The Howards shall obtain a written statement from Mr Hill clarifying his opinion on the stability of the site and the Blackbutt and Angophora trees in the ground including on what else if anything should be investigated in this regard. This statement shall be at the Howards' cost, and a copy given to Ludewig and Cramer by 31 October 2008.
In that report, Mr Hill states that he is confident that there are no obvious indicators of any instability of the Blackbutt or the Angophora and his gives the reasons for that opinion. He also states that he is an arborist and not a structural/ hydraulic engineer or agronomist/ soil scientist, or a geotechnical engineer and that his opinions are based solely on his expertise and inspections. In effect, he was not prepared to comment on areas outside his expertise. In regards to what else should be investigated, he recommends that the two trees in question be assessed every two years. In my view, Mr Hill did what the Court directed him to do. The Court as constituted in 2008 concerned itself with the trees the subject of the application. While occasionally orders may be made for reports from a structural engineer, those orders relate to structures wholly on an applicant's property or on a common boundary between the parties' properties. As stated previously, the retaining wall and driveway are on the respondents' property.
With respect to the maturity of the Blackbutt, with the arboricultural expertise I bring to the Court I would disagree slightly and possibly pedantically with Mr Hill's assessment of it being mature to over-mature. However, in saying that, Mr Hill stated that he used a scale with a limited number of categories. In using a forestry-based 'scale' I would place the tree at mature-to late mature and not anywhere near the over-mature category which would be indicative of the period of the decline of the major limbs. In my opinion, the tree is a healthy specimen with no obvious structural defects with a long useful life expectancy. My reading of Mr Hill's comments in the various reports he has prepared since 2008 indicates to me that there is nothing abnormal with the Blackbutt or the Angophoras given the forest/ bushland environment in which they are growing.
Turning to the specific elements of the claim. I am satisfied on the photographic evidence provided in the application claim form that a branch, probably form either Tree 1 or Tree 2 being the closest overhanging trees, fell during a storm onto the applicants' skylight and punctured it. I was informed by the applicants at the hearing that photograph 18 on p 24 of the claim form is the branch that fell. While no counter evidence was adduced to refute this, the branch in the photograph is not of the dimensions claimed on p 4 of the claim form - it is significantly smaller in diameter. However, in this respect, an in considering the finding in Hinde, I agree that the circumstances have changed since the Court first determined the matter and the fresh application can be considered.
While I observed very little dead wood in any of the three trees in question, a consequence of their regular maintenance, I am also satisfied that because the phasing out of branches is a normal and expected process as trees grow that dead wood will continue to form and therefore could fall onto the applicants' property and potentially cause damage or injury within the next 12 months.
Therefore, s 10(2) is satisfied and the Court's power under s 9 of the Act to consider what if any orders should be made is engaged.
Apart from the dead wood, the applicants raise concerns about 'summer branch drop', otherwise known as 'sudden limb failure'. They state in their claim form that the species in question are prone to this phenomenon and that given the unpredictable nature of this type of failure, a precautionary approach should be taken.
Craig J in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 considers the level of satisfaction required by s 10(2). At [62] His Honour states in part "something more than a theoretical possibility is required in order to engage the power under [the Trees] Act…".
While there is a hypothetical possibility of this phenomenon, there have been no reported failures of this kind from any of the three trees. Mr Hill stated that he has not seen signs of such a failure. With the assistance of binoculars I saw nothing on the day of the hearing that is indicative of such a failure. Orders of the Court must be based on fact; a 'just in case' approach would be antipathetic to that notion and would condemn most trees.
In regards to compensation for a portion of their roof, the applicants included letters from two roofing contractors/assessors. In a letter to the applicants from NG & SL McLister - Roof Tiling & Roof Damage Assessing, dated 28/1/15 the author states (in exhibit A): I attended the above job address and inspected the roof and found a klip lock roof which has been severely damaged by leaf debris sitting on it for a number of years. The owner informed me that this part of the roof is the newest part of the house. The aging and the rusting of the metal has been far accelerated by the leaf debris sitting on the roof and box gutter. I can tell by the staining of the metal which is a dark black colour that the debris has been affecting this area for a very long time. The other parts of the roof are showing signs of surface rust, but at this stage there isn't evidence of staining occurring. I also noticed there was a build-up of leaf material in the box gutters. This roof has nearly reached its life span therefore it should be considered to be replaced in the near future. If a new roof was to be installed the leaves need to be cleaned off the roof at least once a month to prevent the same damage occurring to the new roof. I believe water has entered through rust holes in box gutter and pan rust holes in pan of roof sheets. There was no sign of damage to the roof sheeting from impact of hail.
In a letter from another contractor dated 15/03/15 regarding an inspection on 6 February 2015 (in Exhibit B), the author, the Managing Director of Complete Contracting, writes: Dr Ludewig advised that during and following the hailstorm in December 2014 water had entered the bedroom through a light fitting in the ceiling, that subsequently small pin holes were observed in the roof sheeting over the bedroom section, and that the dome of the skylight in the central section of the roof had been damaged. The roof comprises a flat clip lock roof with box gutters. Surface rust was observed across the roof area, in particular in the master bedroom area under the tree canapé [sic]. A tarpaulin had been placed over the broken skylight and the adjacent roof area, and a second tarpaulin had bee4n placed over the roof in the master bedroom area. Small pin holes were observed in the roof sheeting in this area. The outer layer of the transparent dome in the central skylight had holes through which water had entered the void between the outer and inner layer. I conclude that: • Increased rusting of the roof sheeting and gutters under the tree canapé [sic] was caused by sticks, leaves, sap, and seeds dropping from the trees, overshadowing and high moisture for extended periods; • The small pinholes are likely to have been caused by hail stones breaking through the roof sheeting which may have been weakened to some degree by surface rust; • Water has entered the bedroom through these pinholes; and • The damage to the skylight is likely to be the result of the hail stones impact. • I recommend that the skylight dome and the roofing in the master bedroom section be replaced.
Although the second contractor considers the hole in the skylight to have been caused by hail, as stated above I am satisfied on the photographic evidence that a falling branch caused the hole. However, during the hearing, the second applicant, Dr Ludewig stated that the branch was dislodged from the tree by the hail.
There is some dispute about whether or not the applicants notified the respondents of the damage to the skylight at the time it happened. I am prepared to accept that there was a communication problem. Notwithstanding the respondents' efforts in maintaining their trees I consider a contribution of $250.00; that is 50% of the insurance excess, is reasonable in the circumstances.
Although the applicants state in their claim form that they have to clean the roof every two to four weeks, this does not seem consistent with the observations made by the first roofing specialist.
While the accumulation of debris may have contributed to the deterioration of the roof, the Court has a long standing Tree Dispute Principle published in Barker v Kyriakides [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 may 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 the removal of or intervention with an urban tree.
There are many examples of the application of this Principle. To date it has been adopted consistently and there have been no examples where an applicant has convinced the Court of exceptional circumstances. In Hendry & anor v Olsson & anor [2010] NSWLEC 1302 at [11] to [14] the Principle was extended to include the cleaning of mould and slime. In my view this particular element applies to the applicants' claim in regards to the cleaning of the tiles around their pool.
Consistent with this Principle, no orders will be made for any intervention with any of the respondents' trees on the basis of leaf drop. This also applies to their claim for compensation for a pool pump and part of the roof. The applicants purchased a property in a bushland setting. It is common knowledge that trees grow and therefore it could be reasonably expected that the status of the surrounding tree cover when they purchased their dwelling in 2000 would not remain static. As mentioned previously, apart from the respondents' trees there are other trees growing on the applicants' land, including trees close to the pool. On the day of the hearing I observed the pool to have many leaves in it. In windy conditions, leaves may travel a considerable distance. In such a leafy area, and given the flat roof and box gutters on the applicants' dwelling, more regular clearing of those elements may be necessary. I note the recommendation of the first contractor that the roof and gutters be cleared on a monthly basis. The current measures for maintaining the pool may also be inadequate given the environment in which the pool is located.
In considering the applicants' claims in regards to risk of injury, the issues of branch drop and whole tree failure have been discussed. I accept Mr Hill's assessment that there is nothing to indicate the instability of any of the respondents' trees. Interestingly, only days prior to the on-site hearing, Sydney experienced gale force winds and heavy rainfall associated with an east coast low pressure system. Nothing was mentioned on-site that would indicate any change in any of the trees resulting from that major storm event.
In regards to the trees failing as a result of a bushfire, he applicants refer to their house as being in" a High Bushfire Risk Area as per the 10/50 Clearing Code of Practice legislation and, for this reason the recently reduced 10/50 ruling was introduced to reduce the risk to properties from falling or burnt out trees by removing subject trees."
The applicants are referring to s 100Q of the Rural Fires Act 1997 and the 10/50 Vegetation Clearing Code of Practice. This is a permissive code allowing property owners to remove trees on their land in certain situations and without permission from the local council. It has no relevance in these proceedings brought under the Trees Act. I also note the two letters from the Rural Fire Service written to the respondents in regards to bush fire hazard complaints presumably made by the applicants. In both letters, dated 8 February 2013 and 10 November 2010 the Issuing Officer states: In response to this complain an officer of the Service has inspected the area of concern and has determined that the land does not present a significant bush fire threat at this point in time.
The issue of bushfires has been considered in Freeman v Dillon [2012] NSWLEC 1057 at [86] which states: 86 Despite this concern and the evidence, I am not satisfied that general bushfire risk posed by trees is within the jurisdiction of the Court under the Trees Act. A tree in itself does not start a fire...a person lights a fire, lightning strike, sparks from machinery etc may start a fire. However, if a bushfire damaged the trees and caused part or all of the tree to fail and cause damage to an applicant's property or injury to any person, then this may engage a consideration of s 12(h)(i) and s12 (i)(i), that is "anything, other than the tree, that has contributed, or is contributing, to any such damage/ injury or likelihood of damage/ injury". As discussed by Preston CJ in Robson at [210] [see Robson v Leischke [2008] NSWLEC 152] this: " would also allow consideration of extraordinary natural events, acts of God, and their contribution to the damage or the likelihood of damage to property or the likelihood of injury to any person". As no injury or damage has occurred as a result of a bushfire affected tree, this element of the application is dismissed.
Consistent with this finding, no orders will be made for any intervention with the trees on the basis of potential failure as a consequence of a fire.
Finally turning to the applicants' last claim in regards to injury they state that dampness in the main bedroom is due to permanent over-shadowing and dropping of sap. They contend that there is a causal link between dampness and mould in homes and respiratory infections like bronchitis and allergic rhinitis, which affects both applicants to the extent that they have to use anti-histamines on a regular basis.
It would appear from the opinions of the roofing experts that the dampness is a consequence primarily of an aged and leaking roof exacerbated by a long-term accumulation of leaf litter. The allergic conditions appear to be a response to mould and not directly to any element of the trees in question. In Tuft v Piddington [2008] NSWLEC 1249, the Court held that, for the purposes of the Act, 'injury' encompasses allergic reactions; in Tuft, the injury was an asthmatic reaction to pollen. In Robson v Leischke [2008] NSWLEC 152, Preston CJ at [176] states in part "The Trees (Disputes Between Neighbours) Act 2006 requires a nexus between the tree the subject of the application and either the damage to property or likely injury to any person…". In the matter before me, the applicants' respiratory problems may be a possible indirect consequence of leaf litter build-up that is within the applicants' ability to manage. Therefore no orders will be made for any intervention with any of the trees on this basis.
As s 10(2) is satisfied for one element of the claim, before determining what orders should be made, the Court must consider the discretionary matters in s 12 of the Act. Relevant in this matter:

Although the boundary between the parties' properties is difficult to discern in the vicinity of the trees and there is no boundary fence, there is no contest that the trees are located on the respondents' property. They were well established but obviously smaller when the applicants purchased their property about 15 years ago (s 12(a));
Removal of dead wood will have no detrimental impact on the health or condition of the trees as long as it is carried out in accordance with the Australian Standard for the Pruning of Amenity Trees. Heavy pruning such as removal of all branches overhanging the applicants' dwelling, would in my opinion, and mentioned in oral evidence by Mr Hill, cause considerable stress on the trees by removing a substantial portion of healthy canopy (s 12(b3));
The trees are a remnant of the original forest community and as such will make a contribution to the local ecosystem and to biodiversity (s 12(d));
The applicants maintain that the observation made in the 2008 judgment that the trees were part of the bushland character of the area no longer holds given the impact of the 10/50 code on the immediate locality and St Ives in general. While the applicants have seen first -hand the impacts of this Code, the impression I have is that there are many trees in the immediate vicinity of the parties' properties, including both sides of the small street in which they live, and that the character of the area is still dominated by bushland and remnant forest trees. Thus these trees contribute to both the natural landscape and scenic value of the land on which they are situated and to public amenity (s 12 (b3)(e)(f));
While no technical evidence was adduced, it is not unreasonable to assume that the roots of the trees play a role in stabilising the escarpment. The applicants assert that roots should not be a founding material for a structure such as a car port or driveway; that is not the focus of question 29 in the application claim form which deals with natural features of the land or locality (s 12(g));
Most relevant are s 12(h) and s 12(i) - anything other than the tree that is or could contribute to damage or injury and actions of the parties. In my view the respondents fulfilled the 2008 orders of the Court. They have since followed the advice of their arborist, independent of any Court order for on-going maintenance of the trees, to undertake regular inspections and removal of dead wood. The contribution of the age of the roof, the apparent lack of sufficiently regular removal of leaf litter, the presence of other trees, and the impact of the hail storm have been discussed elsewhere in this judgment.

Having considered the evidence and with the benefit of the site inspection, I am not persuaded by the applicants' submission on p 16 of the claim form that "In the face of overwhelming argument and evidence that the trees are unsafe and pose a high risk…". I accept Mr Hill's evidence that there have been no abnormal changes in the health, structure or stability of the trees over the years he has inspected them. Again, with the arboricultural expertise I bring to the Court, I concur with Mr Hill that I observed nothing that would lead me to conclude that the trees pose the risk asserted by the applicants.
However, for the reasons I gave in paragraphs [34], [35] and [43] I consider that some orders should be made. I intend to formalise the routine maintenance and inspection of the trees, including the removal of dead wood, and to order part compensation for the insurance excess. On the evidence before me, there is no justification for the removal of any of the trees or for radical pruning of their branches.
Therefore, the Orders of the Court are: 1. The application to remove trees 1 and 2 is refused. 2. Within 12 months of the date of these orders, the respondents are to engage and pay for an AQF level 3 arborist under the supervision of an AQF level 5 arborist to undertake a visual inspection of the three trees the subject of this application from the ground and from within the trees and to remove all deadwood in excess of 40 mm in diameter at its base from each of those three trees. Should any other work be deemed necessary the respondents are to comply with any relevant controls such as Ku-ring-gai Council's Tree Preservation Order. 3. All work in (2) is to be carried out in accordance with AS4373: 2007 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry or equivalent. 4. The applicants are to provide all necessary access to their property on reasonable notice for the purpose of quoting and or for the safe and efficient carrying out of the works in (2). 5. Orders (2)-(4) are to be repeated within a period of 24 months from the date of the carrying out of order (2) for each of the three trees until their removal. 6. The respondents are to reimburse the applicants the sum of $250.00 for 50% of the excess on their insurance policy arising from the claim for the skylight within 21 days of the receipt of a tax invoice from the builder for that excess. 7. The claim for compensation for the pool filter and the roof is dismissed.

Cramer & anor v Howard & anor

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