Day v Merrylees and anor

CASES CITED: Black v Johnson (No 2) [2007] NSWLEC 513

DATES OF HEARING: 20 January and 19 March 2009

APPLICANT In person LEGAL REPRESENTATIVES: RESPONDENTS Mr W Merrylees, son

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 COMMISSIONERS: Mr Day has made an application pursuant to the Trees (Disputes Between Neighbours) Act 2006 seeking an order for the removal of a large Blackbutt tree located on the respondents' property. The tree is located some 1.5 m to 2 m from the boundary between the two properties at the rear of the house on the respondents' property. It is adjacent to the second of two dwellings located on Mr Day's property. The tree is approximately 25 m or so tall.

2 The application was filed in Gosford Local Court on 14 November and was accompanied by a report from Hunter Horticultural Services dated 4 November 2008. That report concluded, on page 6, "The subject tree is in decline and is unlike to recover. As the tree deteriorates, its hazard potential will increase. Given the unknown factors of root and trunk quality, but with some warning signs already visible the large size of the tree and a very close proximity to the neighbouring dwellings, this tree is an unacceptable risk to life and property. The report then made the following recommendation "Based on the findings of the inspection, it is recommended that tree removal should be carried out on the grounds of risk to life and property due to the factors discussed in the body of this report."

3 The matter was set down for a preliminary telephone hearing on 19 January at which it became obvious that the parties had reached agreement on the removal of the tree but could not agree on who should meet all or part of the costs of that removal. As we were to be in the vicinity, conducting hearings on the Central Coast and in the Hunter over the following days, the matter was set down for an on-site hearing on 20 January to deal solely with the issue of apportionment of costs.

4 However, at the on-site hearing on 20 January, our preliminary inspection of the tree caused us to have concerns with the conclusions that were expressed in Hunter Horticultural Services report and whether, in fact, the relevant tests under s 10(2) of the Act and, particularly, consideration of discretionary matters under s 12 of the Act, should cause us to issue an order for removal of the tree as the parties had agreed.

5 We note, as we will return to later, that Wyong Shire Council has given the respondents consent under the council's Tree Preservation Order for the removal of the tree.

6 The Standard Directions were subsequently made for non-compensation tree applications and were forwarded to the parties under cover of a letter from the Acting Registrar on 28 January. A further on-site hearing was scheduled for 19 March.

7 When that hearing commenced, the applicant appeared in person, the respondents appeared through their son, Mr William Merrylees, and a Mr Bury was in attendance as a witness on the behalf of the respondents. Mr Bury is an arborist who has provided a report which was filed with the Court in January.

8 At the commencement of the hearing, Acting Commissioner Thyer disclosed that he had supervised Mr Bury when both were employed by Manly Municipal Council some 20 years ago. The applicant was provided with the opportunity to make any application which he might wish to make asking that Acting Commissioner Thyer recuse himself from further participation in the case. No such application was made.

9 Mr Bury's evidence contained in his report of 15 January 2009 was primarily directed to the question of cost apportionment for removal of the tree; past impacts on the tree; and present amenity issues rather than, to any significant extent, with the present overall health of the tree. To that extent, his was not a traditional arborist report as might be expected in these proceedings.

10 The jurisdiction of the Court is founded in s 10(2) of the Act. There are four questions that we are obliged to ask ourselves pursuant to that provision. They are whether the tree has in the past; is currently; or is likely in the near future to cause damage to the applicant's property or whether the tree is a likely risk of injury to any person.

11 We have uncontradicted evidence of Mr Day that a number of tiles have been broken on the second dwelling on his property as a consequence of dead branches falling from the tree and that such a branch has fallen on a car.

12 The consequence of that the first of the test in s 10(2)(a) is satisfied and we have jurisdiction to deal with the matter. We are required then to consider matters of discretion as to whether it is appropriate to make any orders and, if so after, consideration of the matters contained in s 12 of the Act and of our inspection of the tree: o What orders might be appropriate? o How long should be allowed for them to be carried out? o Who should pay for them? o Who should undertake any work? 13 The first issue to note, when we consider these matters of discretion, is the basis of the application which is a fear of future damage to the property - the dwellings located on Mr Day's property - or to persons visiting or living in them. This is explained as being not merely a concern about the dropping of deadwood but about the concern that, if there were to be a whole tree failure, for example, and the tree were to fall in a south-westerly direction, it would potentially reach the front dwelling located on Mr Day's property.

14 Mr Merrylees says, he informed us in correspondence since the first hearing, that he had commissioned deadwooding to be undertaken of the tree. We were informed, by Mr Merrylees' son, that this deadwooding has taken place in the comparatively recent past. This is confirmed by our observation of the tree and the fact that not merely deadwood but some apparently small live branches have also been removed as part of that process.

15 We have undertaken an assessment of the tree as we are now able to observe it. We make the following observations. First, that there are five remaining elements of deadwood of apparently 30 mm in diameter or greater at their point of attachment remaining on the tree. Two of those appear to be located over Mr Day's property and three of them over the respondents' property. Second, some crown thinning has occurred. Third, there are two areas of peeling bark at the upper portion of the primary leader of the tree. Fourth, there is a large burl on the primary leader below the major crowning area but well above ground level. Fifth, there is a partially healed wound at the base of the tree on its south-western side and finally, there are a variety of other and minor wounds and bark stains (that appear to be insignificant in their impact on the health of the tree).

16 However, our overall conclusions are that: o the tree has a well balanced branch structure; o there are no significant risks associated with any of the branch structures which all appear to be sound; and o there is no likelihood of major branch failure (let alone total tree failure) occurring in the foreseeable future. 17 As we have reached the conclusion that there is no likelihood of any major failure of all or part of the tree, we do not consider that there is any need to undertake an analysis of or any determination about what events impacting on the tree might have taken place in 1994 when Mr Day constructed the second dwelling on the adjacent allotment.

18 As we have earlier noted, Wyong Shire Council has given approval for the tree to be removed. However, we have concluded that there is no factual basis upon which it would be appropriate for us to order that that occur at this time. This conclusion that we have reached does not preclude the parties agreeing to take advantage of the council's permission to remove the tree if they wish to do so on some basis settled between them. Nor does this decision preclude Mr Day making some future application to the Court should the facts and circumstances change from the date of this decision.

19 However, we have concluded that the five deadwood elements that we have referred to should be removed on the basis that they are either likely to cause damage to Mr Day's property in the near future or they are a likely risk of injury to a person (whether that person be under the three deadwood elements over the respondents' property or the two deadwood elements over Mr Day's property.

20 During the course of the hearing, we asked Mr Day to consider the issues that were raised by the tree dispute principle published by the Court in Black v Johnson (No 2) [2007] NSWLEC 513 which deals at the proposition that, when a tree is present at the time a development is undertaken, it is not appropriate in proceedings under the Act to have regard to that in determining whether or not interference with or removal of the tree should be ordered, but it is appropriate to have regard to the siting and nature of a development when considering who might meet the cost of any order that the Court would make.

21 We have carefully considered Mr Day's response to that question and to the fact that an examination of the location of the tree and the location of the development on Mr Day's property cause us to conclude that it would be appropriate to order him to make a contribution to the deadwood removal from the Merrylees' tree because we are not satisfied that an appropriate account was taken of the location of the tree and its potential for dropping deadwood at the time of the design of the structure on Mr Day's property. We consider that the orders that we propose to make appropriately reflect the principle contained in Black. 22 Therefore, the orders of the Court are as follows: 1. All remaining deadwood elements in the tree with a diameter of 25 mm or greater at the point of attachment are to be removed; 2. The removal of the deadwood is to be undertaken within 90 days of the date of these orders; 3. The deadwood is to be removed by an AQF level 3 aborist with appropriate insurances; 4. The removal of the deadwood is to be carried out by the respondents; 5. For the purposes of (1), the applicant is to give access to the applicant's property upon notice and at reasonable notice and at a reasonable hour of the day (whether such access is access to the airspace of the applicant's property or ground access to the applicant's property; and 6. The applicant is to pay 40% of the costs of the deadwood removal ordered in (1) within 28 days of the presentation to him by the respondents of a receipted invoice for the completion of the work ordered. Tim Moore Peter Thyer Senior Commissioner Acting Commissioner of the Court

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