Dooley & anor v Nevell

The second tree, T2, is a camphor laurel a little distance to the north and located some 3 or 4 m in from the boundary.

The third tree, T3, is a eucalypt which has had a number of significant branches pruned, in the past, at the time the applicants built their current house - replacing an earlier dwelling that they had occupied on their property.

The fourth tree, T4, is a eucalypt some further distance to the north which also has had a major branch removed from it and which has a dead extension to that branch presently contained in its form.

The fifth tree, T5, is the final eucalypt which had one of its co-dominant trunks removed in order not to interfere with the eaves of the roof of the respondent's house at the time of the house's construction.

The final tree, T6, is a melaleuca located some 2 or 3 m in from the boundary with the applicants' property and at a point a little to the north of T5.

All six trees are have not yet reached full maturity. They range in height from 12 m or so to 20 to 25 m.

The applicants have raised six substantive issues that we are required to consider against the provisions of the Act: o The first is the depositing, primarily by the eucalypts (but also by the other two trees), of leaves, bark, small twigs and the like on their property - both in the walkway down the side and onto their roof. o The second is that the roots of the various trees may interfere with the services to or the structural integrity of their house at some future time. o The third is that several of the eucalypts maybe harbouring termites which make cause future damage to their property. o The fourth is that of branches of a larger than twig size falling from any of the trees and damaging their roof or being a risk to persons walking along walkway between their house and the boundary. o The fifth is whether or not there is any instability, structurally, in any of trees occasioned by both the comparative height of the water table (which is only a metre also below ground leve and any water pooling under the respondent's house. o The final issue is whether there is likely to be any major branch failure and thus a risk of injury to any person on the applicants' property.

Leaves and bark 12. With respect to the first of those issues, Mr Dooley asked us to set aside the normal course taken by the Court (of applying the principle enunciated in Barker v Kyriakides [2007] NSWLEC 292) that, in the ordinary course of events in urban environments, those who have the aesthetic and environmental benefits of having trees in that environment also have a responsibility to undertake appropriate levels of maintenance from leaves, small branches, bark and the like falling on their property or into their gutters.

13. Mr Dooley asked us to find that, in these circumstances, the degree of deposition of tree material is out of the ordinary and is unreasonable. We are unable to do so.

14. We are standing to consider the matter in a substantially treed environment. It is clear that the trees have been a significant presence in the locality (both at the time Mr Dooley and Ms Shepherd purchased their original property and at the time they rebuilt).

15. We are satisfied from our inspection that the leaf, bark and twig material is not so out of the ordinary to warrant setting aside the principle. We thus consider that the broad principle applied in Barker v Kyriakides should apply.

16. As a consequence, we are satisfied that there is nothing extraordinary in this case that would warrant us departing from the broad principle previously enunciated.

Roots 17. With respect to tree roots, the applicants have, in the comparatively recent past, constructed a new house in substitution for their earlier dwelling. That house is constructed with a brick curtain perimeter support wall on a reinforced concrete footing and the internal supports are by galvanised beams on concrete pads. There is no sign of any current damage to the house caused by tree roots from any of the trees on the adjacent property and there is nothing that would cause us to conclude that such damage is likely in the near future - that being the test required to be applied by section 10(2)(a) of the Act.

Termites 18. Concerning the possibility of termite damage, we indicated to Mr Dooley and Ms Shepherd during the courses the hearing that we might wish to use this occasion to make a jurisdictional finding concerning termite risk and the like arising out of the matters that they raise in this case. We consider that it is appropriate to do so. Tree dispute jurisdictional finding - Animals, birds and insects 19. In Immarrata v Mourikis [2007] NSWLEC 601, Bly C and Fakes AC considered an application seeking removal of a number of trees. Amongst the reasons given by the applicant for seeking removal was that the flowering of the trees attracted bees which were a "bee sting risk" which would satisfy the test in s 10(2)(b) of the Act and thus invoke the Court's jurisdiction. Although the Commissioners dismissed the application for other reasons, they remarked: Finally, even if we had a been persuaded that there is a bee sting problem we are doubtful that we would be able to make orders in these circumstances, requiring the removal of the trees because the Act relevantly only applies where the tree concerned, as distinct from the bees, is likely to cause injury to any person.

20. There are four tests posed by s 10(2) of the Act which must be considered by the Court before it can grant an application under the Act. These tests require that any property damage or injury to a person must be caused by a tree which is the subject of the application.

21. The effect of these tests is that past, present or near future damage or risk of injury caused by failure of or intrusion by any or all of the elements of a tree (whether the tree is a living tree or a dead tree) permits the Court to consider whether orders should be made under the Act.

22. However, the fact that a tree may attract and provide habitat, whether temporary or permanent, to an animal, bird or insect does not mean that any damage caused by such an animal, bird or insect is, in any way, caused by the tree which provides that habitat.

23. The consequence of this is that the Court does not have the power under the Act to make orders in response to property damage or risk of injury to persons where that property damage or risk of injury has or would arise from a tree attracting or hosting an animal, bird or insect.

Larger branches 24. With respect to falling branches, we have the undisputed evidence of a broken tile. We have seen a fallen branch on the roof and we have the oral evidence of the applicants that the damaged tile was broken by a falling branch and that that break has occasioned damage to the ceiling of the garage. We are satisfied, from our inspection of the applicants' roof from the respondent's in northern balcony, that there is no reasonably possible alternative cause of the broken tile. We are satisfied that the cause was by a branch falling from one of the respondent's trees - likely to be one of the eucalypts T3, T4 or, more probably, T5.

25. We have carefully examined the state of the canopy of the various trees. We are satisfied that there is a deal of deadwood contained in the canopy, the falling of which onto the tiles of the applicants' property (if it were to occur) is likely to result in the future damage. We are satisfied that there has been past damage and therefore the jurisdiction of the Court is enlivened (s 10(2)(a) - first test) and we are satisfied that there is a risk from that deadwood that such damage will occur again in the near future (s 10(2)(a) - third test).

26. We consider that the appropriate response to this is to require the removal of deadwood from T3, T4 and T5 with that deadwood being removed at its trunk junction. This removal is to be of all deadwood greater than 40 mm in diameter at the trunk junction. We are satisfied that such deadwood should be removed in the comparatively near future and there is no significant disagreement between the parties about the amount of time that should be allowed for any work that we propose to order. We are satisfied that the time proposed (the end of February 2008) would be an appropriate time within which this should be required.

27. We have considered the question of whether the fact that the applicants replaced their colour bond metal roof with a tile roof when they reconstructed their house should lead to us requiring them to pay for the work rather than the respondent doing so. We are satisfied, however, that prudent and ordinary tree maintenance by the respondent would have required the removal of that deadwood in the ordinary course of property maintenance and we are therefore not satisfied that we should order the applicants to pay for it.

Water impact on tree stability 28. With respect to the question of water pooling and the height of the water table, we are satisfied, on a proper arboricultural basis, that there is no realistic likelihood of this causing structural instability in any of the trees and therefore does not provide any basis for ordering the removal of or interference with any of the trees.

Major branches 29. As to the major branches, we have carefully considered the structural stability of all of the trees. We are satisfied that the only possible area, from that inspection, that warrants concern is the dead trunk element to T4 commencing at about 5 m above the ground. We are satisfied that the likelihood of failure of that trunk element and the dead extension above it is such that it satisfies the third test under s 10(2)(a) of the Act - that it is likely within the next 6 to 12 months that that trunk would fail at and at least the dead element of it would fall on the applicants' property. We propose to order that that dead element be pruned back to the collar of the main trunk below and the orders of the Court will incorporate a marked photograph to require this.

30. We are satisfied, in addition, for the reasons we enunciated earlier, this should be paid for by the respondent.

31. We propose to order that: o all of the work, which we have described, should be completed by the end of February 2008. o it should be undertaken by an arborist with AQF level 3 or above qualifications with appropriate insurances; and o the pruning is to be undertaken in accordance with the Australian Standard 7373 of 2007.

32. The applicants are to be required to give access to the person engaged by the respondent to carry out this work. Such access is to be on reasonable notice, at a reasonable hour of the day and the applicants are permitted supervise that access. We propose to order that, because the problem is likely to be an ongoing one, there should be a deadwood removal exercise of the nature proposed above should be conducted at at least five yearly intervals from the date of the orders in this matter.

Conclusion 33. Finally we would note that the orders that we propose do not in any way impact on the common law rights that the applicants will retain to prune any of the trees to the boundary at their expense if they wish to do so. It necessarily follows that, from the foregoing, we are satisfied there is no basis to order the complete removal of any of trees. The orders of the Court will reflect the specific matters we have outlined above.

Tim Moore Peter Thyer Commissioner of the Court Acting Commissioner of the Court

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