Davis v Newnan

Land and Environment Court (NSW)|2021-06-24

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 Part 2 of the Trees (Disputes between Neighbours) Act 2006 (the Trees Act) by Mr Stephen Davis, relating to a Eucalyptus nicholii (Narrow Leafed Peppermint) (the tree) located in the adjacent neighbouring property.

Background

Mr Davis (the applicant), and Ms Newnan and Ms Newnan (the respondents), share a side boundary between their properties in Thornleigh. The applicant's property is located on the western side of the respondents', and both properties face the same street, to the south.
Both the applicant and the respondents have lived at their properties for many years. In 2015, the applicant contracted an arborist to prune the tree, so as to remove branches overhanging the common boundary, to minimise the likelihood of damage to the applicant's property.

The applicant's case

Mr Davis proposes the following orders: 1. That the respondents takes all actions and steps necessary to facilitate the removal of the tree, a Eucalyptus nicholii, the subject of the proceedings, within 48 hours of these Orders being made, and be liable for the costs of doing so. 2. That the respondents authorise Arbor Pride and its employees to enter their land for the purposes of removing the tree. 3. That the Court waive the requirement to give notice in accordance with section 8(3) of the Trees Act due to the urgent circumstances of this matter.

The respondents' case

The respondents seek that the tree be retained, and resist the applicant's request for its removal. Ms Newnan does not appear to share the applicant's concerns about the tree's alleged deteriorating condition, and was unhappy about the nature of negotiations conducted by Mr Davis and his wife, prior to them lodging an application with the Court. A major factor informing the respondents' inaction is a lack of available financial resources to cover the considerable cost.

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 Trees Act.
In his application, Mr Davis notes asking the respondent verbally, on multiple occasions, to remove the tree, and that the respondents repeatedly refused. On January 29, 2021, the applicant obtained a letter from an arborist, which detailed a large crack in the trunk, on the opposite side to the lean. The arborist claimed that the tree therefore posed a significant risk of collapse onto the respondents' dwelling, and recommended that the tree be removed.
On the same day, the applicant wrote a letter to the respondents, detailing the arborist's opinion and advice, and pleading for them to remove the tree. The letter noted that the trunk crack had precipitated and extended over recent months, and that this prompted him to seek arborist advice. The applicant further advised that he had received a quote from the arborist for tree removal, and offered to contribute 30% of the quoted cost, so as to expedite the removal. The applicant added that he would contact Hornsby Shire Council (Council) the following Monday to seek permission for tree removal. No response was received from the respondents.
The applicant engaged legal representation to assist in their pursuit of tree removal. On 26 February, 2021, a letter from Navado Lawyers and Solicitors was sent to the respondents. This summarised the situation with respect to the significant risk the tree represented, and advised that Council had granted permission for removal, without need for an application.
Correspondence from Council's Tree Management Officer, provided on 2 February, 2021, after he reviewed photographs supplied by Mr Davis, and the arborist's comments, noted that "the evidence supplied is sufficient to suggest imminent risk to life and/or substantial damage to property". Such a determination, sight unseen, is a relatively rare occurrence.
The applicant notes making two attempts to contact a Community Justice Centre (CJC) with a view to organising mediation of the dispute with the respondents, as recommended by the Court. He said these attempts at contact went unanswered, and he did not pursue this avenue further.
In Robson v Leischke (2008) 72 NSWLR 98; 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 Trees Act than in many other jurisdictions, regardless of the fact that the applicant failed to persist with his attempt to organise mediation through a CJC, I am satisfied that there has been a reasonable effort by the applicant 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 Davis claims that the tree, should it collapse, is likely to cause damage to the respondents' dwelling, and, should it twist towards his property, also to his dwelling.
Under s 7 of the Trees Act, an owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land. This applies only to damage to the applicant's property. Though I am satisfied that the tree is highly likely to damage the respondents' dwelling, contrary to the arborist's opinion, I am not satisfied that the tree is likely to twist towards the applicant's property, and cause damage. Thus, in respect to damage, the jurisdiction of the Trees Act is not engaged.

Risk of Injury

Mr Davis also claims that the tree presents a genuine risk of injury, including to his family from exposure to asbestos, should the tree damage the respondents' fibro dwelling.
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]).
While assessment of damage under the Trees Act relates only to the applicant's property, consideration of injury can relate to other areas surrounding the tree. In Robson, at para [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 applicant's land. Additionally, orders have been made for the removal or pruning of trees on the basis they may cause injury to persons on the respondents' land, as in Reuben v Lace [2010] NSWLEC 1024.
This species of Eucalyptus is relatively short-lived, with very few specimens reaching 50 years of age. In this context, this tree may be considered to be over mature. Eucalyptus nicholii is also very prone to development of internal fungal decay, in trunks, major branches, and roots, and extensive decay is clearly visible around the large trunk crack.
Given the gravitational load on this tree, as a result of its pronounced lean towards the respondents' dwelling, and the significant trunk weakness which is likely to be increasing relatively quickly, I am satisfied that catastrophic failure of the tree is probable, in the near future. As a large part of the canopy is likely to impact the respondents' dwelling, I am satisfied that a genuine risk of injury exists, particularly for the respondents. Therefore, s 10(2)(b) is engaged.
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 Trees Act.

Discretionary matters -Section 12

The tree is situated principally on the respondent's land (s 12(a)).
As it is rapidly senescing, and has very sparse foliage, the tree contributes little to protection from the sun, or from wind. Though it is visible from neighbouring houses, and previously provided intrinsic value to public amenity, such benefit has reduced along with its declining condition, and decreased canopy cover (s 12(b3), and (f)).
Ms Newnan noted the role the tree played in providing habitat for fauna, specifically possums. Hence, it contributes to the local ecosystem and biodiversity (s 12(d)).

Conclusion

I have examined the tree and the site and have reached the following conclusions: 1. This tree exhibits distinctive trunk cracks, associated with structural deterioration, resulting from extensive fungal decay. As such, the tree is prone to catastrophic trunk failure, in the near future. 2. Section 10(2)(b) of the Trees Act is satisfied, as the tree is likely to cause injury to persons, specifically the respondents. 3. Being over-mature, the tree now provides little benefit, notwithstanding that possums use it for habitat. In a situation such as this, where a tree constitutes considerable risk of injury, any benefits must be viewed as secondary to mitigation of this risk. 4. Though the respondents were previously informed about deterioration in the structure of the tree's trunk, being lay persons, and with the tree being the focus of an ongoing dispute, it is not unreasonable that they failed to grasp the gravity of the situation. 5. With the facts of the situation clarified at the hearing, however, regardless of the respondents' alleged lack of financial resources to cover the cost, urgent intervention will be ordered. Ideally this will be organised by the respondents, but should they not act promptly, it is reasonable that the applicant is empowered to do so.

Orders

The Court orders that: 1. The application is granted. 2. Within 21 days of the date of these Orders, the respondents shall, at their expense, remove the Eucalyptus nicholii from their front yard to a maximum height of 30cm above the ground level, and remove all refuse. 3. The works in Order 2 shall be completed by minimum AQF level 3 qualified arborists with all appropriate insurances, and shall be undertaken with the use of Elevated Work Platform (Cherry Picker) or a crane. The tree shall not be climbed. 4. The works in Order 2 shall be completed in compliance with Safework Australia WHS guidelines for tree trimming and removal. Any fauna found nesting in the tree shall be relocated prior to the works proceeding. 5. Should the respondents not remove the tree within 21 days, the applicant shall remove the tree, in accordance with Orders 2, 3 and 4, as soon as practicable after the 21 days have elapsed, and subject to minimum 48 hours written notice of date and approximate start time provided to the respondents. 6. Should Order 5 be enacted, whereby the applicant organises the tree removal, the respondents shall allow all reasonable access for the contractors to complete the works. 7. Should Order 5 be enacted, the respondents shall reimburse the applicant for the cost of the works, based on receipt of a paid invoice from the applicant, with a maximum price of $9394.00, and within 60 days of completion of the works. 8. All works shall be undertaken during reasonable working hours.

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: 23 September 2021

At a glance

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Judgment (12 paragraphs)

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Cases Cited (5)