Cummins v Lyndon

Land and Environment Court (NSW)|2020-10-06

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

COMMISSIONER: This is an application, pursuant to s 7 of Pt 2 of the Trees (Disputes between Neighbours) Act 2006 (the Act) by Jeff and Sue Cummins, relating to a Corymbia maculata (Spotted Gum) (the tree) located in the adjacent neighbouring property.

Background

Mr and Mrs Cummins (the applicants) and Ms Lyndon (the respondent), share a side boundary between their properties in Depot Beach. The applicants' property is located on the western side of the respondent's, and both properties face the same street, to the north.

The applicants' case

Mr and Mrs Cummins propose the following orders: "(1) That the spotted gum be trimmed and maintained so that the risk to our lives, and to the cars parked in the driveway is minimised. (2) That the limbs from the spotted gum which are protruding over the electricity service line are lopped to remove this overhang."

The respondent's case

Ms Lyndon seeks that the tree be retained, and resists the applicants' request for heavy pruning of the tree. She claims that the tree is in reasonable condition, and is aggrieved that the applicants made no personal representations to her requesting pruning of the tree, either in person or in writing, prior to lodging an application with the Court. Ms Lyndon also claims to not have been informed about, or aware of, the previous damage to the applicants' electricity wires, nor to have seen any evidence substantiating the applicants' claim of dead branches having dropped on cars in their driveway.

Jurisdictional requirements

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.
The next consideration of particular importance is s 10 which states: (1) The Court must not make an order under this Part unless it is satisfied: (a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, and (b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 8. (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.
If the Court's jurisdiction is engaged, s 9 enables the Court to make any such orders it thinks fit to remedy, restrain or prevent damage to property, or to prevent injury to any person. In order to determine, what, if any, orders should be made, the Court must consider the matters in s 12 of the Act.
The conflict between these neighbours has a long history, and I am told that the parties have not communicated since 2016. This tree is but one issue of dispute that has occurred between them.
Mr and Mrs Cummins acknowledged that they made no request to Ms Lyndon regarding pruning of the tree, either in person or in writing, prior to lodging an application with the Court. They justified this decision on the nature of past interactions, and because a previous attempt to seek a mediated settlement of another issue through the Community Justice Network had been unsuccessful.
While this may not reasonably explain why a letter could not initially be placed in the neighbours' letterbox, I am prepared to accept that this was motivated by the history of past conflict, and an attempt to avoid further conflict, rather than an attempt to inflame the situation by resorting to a Court application in the absence of prior notice.
In Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (Robson), at [194] - [195], Preston CJ notes: "194 The Trees (Disputes Between Neighbours) Act 2006 does not specify any particular time at which the applicant must make a reasonable effort to reach agreement with the tree landowner, other than fixing the end point by requiring that the Court cannot make an order under the Act unless it is satisfied that the applicant has made a reasonable effort to reach agreement with the tree landowner. Hence, although it would be preferable for an applicant to make a reasonable effort to reach agreement with the tree landowner before making application to the Court, so as to avoid court action, there is no requirement to do so and a reasonable effort to reach agreement can be made after making the application at any time up until the Court determines the application. 195 The language in s 10(1)(a) of the Trees (Disputes Between Neighbours) Act 2006 that the applicant has made "a reasonable effort to reach agreement" is less demanding than the language used in provisions of other statutory enactments which require parties to make reasonable attempts to reach agreement in relation to matters claimed in the court originating process."
Given this context where "a reasonable effort to reach agreement" is less demanding under the Act than in many other jurisdictions, and the history informing this dispute, I am satisfied that there has been an attempt by the applicants to reach agreement with the owners of the land on which the tree is situated, as required by s 10(1)(a).

Damage related to the tree

Mr and Mrs Cummins submitted that about 18 months ago, during the night, a live branch broke from the tree and fell onto their electricity service wire, breaking the wire. Though the respondent was not aware of this incident, the point of branch breakage is still evident on the tree. I therefore accept the applicants' claim on face value, and I am satisfied that the tree "has caused damage to the applicants' property", and thus s 10(2)(a) is engaged.
The applicants note that "the remaining wood on the same branch has two large splits, and further deadwood occurring continually", and that "the splits are now covered with seeping sap with peeling bark attached".
These "two large splits" were not apparent from my inspection of this branch, from the ground, nor from the photographs supplied with the application. Based on the arboricultural expertise which I bring to the Court, I observed that strengthening response growth around the wound where the branch broke has been active and fairly rapid. Where the peeling bark is attached, about 300mm above the original wound, some superficial wounding is visible. This is most likely related to a normal cycle of surface borer activity, and the "seeping sap" or kino, is a reflection of a healthy, normal response to such wounding.
I am not satisfied that this live branch is likely to cause damage to the applicants' property in the near future, but the dead branches overhanging the applicants' driveway do meet this threshold, where, as a rule of thumb, the 'near future' is deemed to be a period of 12 months from the date of the determination (Yang v Scerri [2007] NSWLEC 592).
There is no obvious relationship between deadwood present on the tree and weakness in the live canopy. It is normal for branches to die and fall from trees, and the rate and extent of deadwood accumulation normally increases during drought conditions, as experienced over recent years. Though Ms Lyndon submitted that the tree had been pruned on various occasions whilst she has occupied her property, it is some years since this has occurred.
The applicants raised concerns that the tree may fail near ground level, and also note that "when the branch falls, the tree will be top heavy, unbalanced and leaning towards our home".
Corymbia maculata are generally a long-lived species, they are normally well anchored in the soil, and are not particularly prone to fungal decay. They are endemic to this area, with many growing in the bushland across the road from the parties. This attests to their suitability in the soils common to this area.
Tree roots generally grow laterally away from the trunk base, in response to the environmental forces exerted upon them, in a loosely radial pattern. They often spread well beyond the tree's canopy, and are usually found fairly close to the surface, as they need to access oxygen for respiration. Stability in the soil is a product of the cumulative shear resistance of this broad spreading web of roots.
In some rare situations, lean is a problem, but this is most common where the angle of the lean is extreme, and/or when there is insufficient soil volume to anchor the tree. This is not the situation here.
Certainly, a tree may be a hazard, and thus increasingly prone to windthrow, when it becomes unstable in the soil, and its vertical trunk starts to lean, or a leaning tree increasingly leans (i.e. partial windthrow). In such situations, there are normally signs such as soil heaving and lifting, or cracks in the soil, which an arborist may interpret.
From my inspection around the tree base and surrounding soil, no such characteristics were observed. In this situation, there are no indications that the structural integrity of the tree's root system or root/trunk junction is compromised, nor that the tree is unstable in the ground. The trunk appears sound and strong.
The applicants also referenced a tree in the respondent's property, or perhaps her east side neighbours', that had failed near ground level some decades previously, to substantiate their case. This occurrence had its own circumstances and rationale, which has no bearing on the strength, structural stability or performance of this tree. It is entirely irrelevant.
Leaning trunks or major branches do not normally reflect a structural problem. When healthy trees and branches grow on a lean, perhaps to gain more sunlight or in response to prevailing winds, they produce extra growth, as and where needed, in both roots and branches, to optimise strength.
Though some people do not like a lack of symmetry, tree canopies need not appear to be symmetrical or balanced to function with optimum strength, and notwithstanding the deadwood, the branch attachments and structure of this canopy do not raise concerns.
The applicants' proposed pruning of the canopy spread, particularly the sector which is extending over, and adjacent to their property, including height reduction. They note the opinion of "a retired arborist who stated that the tree needs to be trimmed for safety".
The suggested heavy pruning would render the tree under stress, very likely resulting in rapid development of poorly attached epicormic growth, and thus an otherwise stable canopy becoming far less safe for both parties. It would also contravene AS4373:2007 Pruning of amenity trees.
Therefore, while no orders will be made for intervention with the live canopy, deadwood overhanging the applicants' property does represent a likely cause of damage in the near future, particularly to stationary objects on and near the driveway, and orders will be made for its removal.

Risk of Injury

Mr and Mrs Cummins claim that the tree presents a genuine risk of injury. 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 [10]).
As noted with respect to damage, trees react to their environment throughout their life, and develop strength where and as they need it, in response to the various demands placed on their structure by winds and gravity, provided they are sufficiently healthy and vigorous to do so, and where this is not compromised by age or species considerations. This tree is mature, but not over mature, it is relatively healthy, and is a species that is normally resistant to development of fungal decay.
There are no obvious characteristics of the live canopy of this tree that cause concern with respect to risk of injury. There are no apparent signs of structural weakness in the trunk, nor issues with structural stability. There are no obvious faults at branch junctions, and no reports of near misses. No formal risk assessment has been provided to support the applicants' claim.
With respect to the site, the applicants noted that their property was subject to quite strong wind gusts as "we live on a cliff top", but both properties are, in fact, located across the road from the coastal waterfront, with considerable protective tree cover nearby.
The failure of the branch onto the electricity wires does not provide a history of branch breakage from which one can reasonably generalise. A small proportion of individual trees display a tendency to readily shed live branches, which often commences from a young age. Where there are structures and/ or people nearby, such trees are often deemed a high risk, and appropriately removed.
Trees of this nature display wounds from previous branch failures. This tree does not exhibit any such pattern of wounding, and the failed live branch, which damaged the wires, appears to be an isolated event in the recent history of the tree.
While assessment of damage under the Act relates only to the applicants' property, consideration of injury can relate to other areas surrounding the tree.
In Robson, at [175], Preston CJ said, "the applicant's concern about likely injury can be but does not necessarily have to be injury to a person who would be on the applicants land. Hence, an application can be made when an applicant is concerned that a tree on adjoining land is likely to cause injury to persons on public land in the vicinity." Ashworth v Joyce [2007] NSWLEC 357 concerns dead trees adjacent to a public reserve. Additionally, orders have been made for the removal or pruning of trees on the basis they may cause injury to persons on the respondent's land, as in Reuben v Lace [2010] NSWLEC 1024, and thus the front nature strip is covered by the jurisdiction of the Act.
Deadwood in the tree protrudes over parts of the nature strip in front of the respondent's property. Some of it is quite long and large. While the occupation rate of pedestrian traffic in this area would normally be low, due to its coastal location, where a marked increase in traffic may be expected during holiday periods, I am satisfied that the risk of injury from this deadwood is sufficient for orders to be made for its removal.

Discretionary matters -Section 12

With s 10 satisfied, in order to determine, what, if any, orders should be made, the Court must consider the matters in s 12 of the Act.

The tree is situated principally on the respondent's land (subs 12(a)).
Any removal of live foliage reduces the photosynthetic capacity, and thus the health of a tree. This tree is mature and sensitive to impacts which alter its growing capacity, and therefore any pruning decision must be informed by a sound rationale.
Though deadwood in the tree likely provides habitat for fauna, its removal does not negatively impact tree health, and is justified in terms of likely future damage, and risk of injury.
In recognition of the applicants' apprehension and fear of the tree, the specification shall require pruning of dead branches greater than 10mm in diameter at the branch collar, rather than the more common 20 mm minimum. This should result in little additional cost for the works (subs 12(b2)).
The tree contributes to protection from the sun, and from wind, to landscaping, to the amenity of the respondents' property, and to the immediate locality. The tree is visible from neighbouring houses, and thus has intrinsic value to public amenity (subss 12(b3), (e) and (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 to the local ecosystem and biodiversity (subs 12(d)).
Given the size of the tree, and the likely considerable 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 (subs 12(g)).

Conclusion

I have examined the tree and the site and have reached the following conclusions: 1. The tree appears to be stable in the soil. The trunk, branch attachments, and live crown appear sound and strong. The shape of the canopy raises no concern. 2. The tree is holding a moderate level of deadwood, some of which is of a size and location to be likely to cause damage to property on the applicants' adjacent driveway. This satisfies s 10(2) of the Act, as does the prior damage to electricity wires caused by a branch breaking from the tree. 3. Similar deadwood overhangs the respondent's nature strip, some of which appears brittle, and unpredictable. Currently the occupation rate of pedestrians below the tree is low, and the risk of injury is similarly low. During holiday periods, however, when the population and pedestrian traffic increases, the level of risk will likely rise sufficiently to justify intervention with the tree, particularly as the pruning required to mitigate the risk is minor, and easy to execute. 4. Section 12 considerations exhibit a mature tree, endemic to the area, which provides many environmental services and ecosystem benefits. Pruning of the live canopy is neither preferable, nor required to mitigate the likelihood of damage to the applicants' property, and risk of injury to pedestrians. This can be achieved by the pruning of deadwood, at negligible cost to tree health.

Orders

The Court orders that: 1. Within 60 days of the date of these orders, the respondent, at her expense, shall prune the Spotted Gum tree in the front yard, to remove all dead branches greater than 10mm in diameter at the branch collar, which are growing towards or over the common side boundary, or, towards or over the front property boundary. 2. All pruning shall be completed by an AQF level 3 arborist, with all appropriate insurances, and shall comply with AS4373:2007 Pruning of amenity trees. 3. All works shall comply with Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work 2016. 4. The works are to be completed during normal work hours. Should access be required into the applicants' property to undertake these works, such right to access shall be granted, upon receipt of 48 hours' written notice.

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: 30 October 2020

At a glance

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Judgment (12 paragraphs)

Parties

Cases Cited (6)