Ghazal v Vella

Mr C Xuereb (Solicitor for the Respondent) Charles R Xuereb & Co File Number(s): 20112 of 2011

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1This is an application pursuant to s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Blacktown against the owners of a Bunya Pine growing on an adjoining property. 2The applicant is seeking the pruning of the tree or the removal of cones as he contends that cones falling from the tree could cause injury to any person or to his pet dog. The applicant likes the tree and is not seeking its removal. 3The tree is an Araucaria bidwillii (Bunya Pine) growing approximately midway along the respondents' backyard on the western boundary close to the dividing fence between the parties' properties. The tree is healthy with no obvious structural defects. 4The applicant states that when he and his wife purchased their property in 1986 the tree was not there. Photographs viewed at the hearing and taken in the late 1980s show that even if it had been present at that time it was very small. 5The applicant stated that the cones first started falling in the summer of 2003/2004 and that each summer since then cones have fallen from the tree. In 2011, 4 cones fell from the tree from the beginning of summer until the end of February. The cones were shown in evidence. 6The tree overhangs the applicant's property by about 2.5-3m. Beneath the tree are a vine-covered pergola and a landscaped area with fruit trees. Concrete paths surround the landscaped area. There is an outdoor sink under the tree and nearby is a large shed, the door of which opens onto the concrete apron near the tree. 7The applicant contends that he and his extended family spend a great deal of time outside and that he and his wife, being retired, spend most days outside working in various parts of the garden. He is concerned that as the large cones fall without warning someone could be injured. 8The respondents were represented by their solicitor Mr Xuereb. On their behalf he contends that whilst the tree does produce fruit it is for a limited amount of time and that the risk of actual harm is low. 9This assertion is based on a report prepared for the respondents by Mr Mark Hartley, consulting arborist, The Arborist Network. This report is exhibit 2. Mr Hartley did not attend the on-site hearing. 10In his report, Mr Hartley states that the cones can weigh up to 10kg and that he is informed by his clients that the tree has been dropping 10-12 cones per year. He estimates the tree to be between 40 and 45 years old however the photographs viewed on site would suggest that the tree is in the vicinity of 25 years old. 11Mr Hartley discusses the risk of harm posed by falling cones. He estimates that given the proportion of the canopy that overhangs the applicant's property that about 25% of cones produced by the tree have been falling onto the applicant's property. However he says there is no evidence of any significant damage that has been caused by these falling cones. 12As the application is made on the basis of injury to persons (although injury to a pet is more properly described as damage to property - see Robson v Leischke [2008] NSWLEC 152 at [167]) it is more relevant to consider Mr Hartley's report with respect to risk of harm to a person. He states in his report that he has " been unable to find any record of a fatality or serious injury to a person as a result of a falling cone. An unconfirmed report of an impact with a person was provided on the QTRA discussion forum. " He gives no indication of what records were searched however, based on not finding data on Bunya cones he refers to information sourced from fatalities from falling coconuts including incidents of coconuts dropped by monkeys onto their handlers. However the references he gives are not in the conventional form and therefore it is impossible to determine the veracity of this information or even if this is peer-reviewed material; in any event I fail to see the relevance of this material to the matter before the Court. 13Mr Hartley uses the QTRA method of calculating risk of harm. He describes this in a footnote as " QTRA stands for Quantified Tree Risk Assessment and is a widely used pier [sic] reviewed system for the quantification of the risk of harm for trees. No other such system exists." I am familiar with this system which was devised in the UK and is used by some licensed practitioners in Australia. It is a method that essentially takes an 'occupancy of target area' approach using a purpose-made 'calculator' to determine the probability of injury as a result of an element of a tree failing. The report includes an appendix with an extract from the QTRA Training Manual 2007 regarding an overall summary of the system. 14Mr Hartley calculates that there is a 1 in 10,000 chance per annum of someone in the applicant's backyard being hit by a cone but the risk of death, using the calculator, is 1 in 2,649,000. He then goes on to cite mortality figures for stairs, falling from a bed or from cars, again citing an incomplete reference. Based on a value of a human life that he says is $1,520,000 (source not cited) he calculates in this instance an annualised cost of harm of about 60 cents. 15I quote the two last paragraphs in his recommendations: Spending hundreds of dollars each year pruning the tree in order to avoid an annualized harm of 60 cents would be shear folly. It would be like demanding that motel rooms not contain beds because people may fall from them and die...technically correct but unreasonably burdensome. In this instance the most appropriate option would be to retain the tree and accept that there is a miniscule risk of ham [sic] . If additional reduction in the levels of risk was sought then avoiding the area under the tree during fruit drop or wearing a bicycle helmet in this area during fruit drop would be the next most cost effective options. 16Under s 10(2) of the Act, the Court must not make an order unless it is satisfied that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant's property or is likely to cause injury to any person. 17In this matter I am satisfied that large mature cones have fallen from the tree onto the applicant's property over several months each summer since 2003/2004. This is a time of the year when the days are longer and there is clear evidence that the applicant and his extended family actively and frequently use their back garden. 18Notwithstanding the variability of fruiting that can occur with this species, in all likelihood this tree will continue to fruit over its potentially long life. Despite Mr Hartley's assessment on likely usage of the site, I observed an intensively used backyard and the evidence of that use was uncontested although part of the immediate target area may be less frequently used than other parts of the yard. While the QTRA method may provide a useful focus on target areas and likely occupancy rates it relies on very many assumptions. Although Mr Hartley states in his report that he has read and agreed to be bound by the Expert Witness Code of Conduct in Schedule 7 of the Uniform Civil Procedure Rules 2005 the report fails on a number of accounts with respect to complying with clause 5 of that Schedule, particularly with respect to accurately citing references upon which many of his assumptions are based. 19On the basis of this report, the respondents' position is that they should do nothing to manage the risk posed by falling cones. 20The facts remain in this matter that the risk from falling cones is foreseeable, however I consider it unreasonable to place the burden of responsibility for managing that risk onto the applicant. I consider it flippant and unhelpful to suggest that people wear bicycle helmets in their own backyard during the summer. I reject the respondents' position that nothing needs to be done to the tree. 21The Court has heard three other matters under the Trees Act that involve Bunya Pines. In Newman v Eizenberg [2009] NSWLEC 1203 the Court ordered the removal of the tree however in Adamski v Betty [2007] NSWLEC 200 and Langtip v Granstrom [2008] NSWLEC 44 de-coning of the tree was ordered. Mr Xuereb contends that in these cases the tree was closer to the dwelling and therefore, I assume, that de-coning was more appropriate in terms of avoiding damage to property. 22In this matter I see no reason to order the removal of the tree as it is a healthy specimen of good form and aesthetic value. The period of fruit production and subsequent fruit drop is predictable with this species and therefore a risk management option exists. Consistent with the orders made in Adamski v Betty and Langtip v Granstrom I propose to order the annual inspection of the tree and should any fruit be seen, it is to be removed before it reaches a size that could injure someone. As the fruit can be quite difficult to see from the ground it may require a climbing inspection. As the fruit from higher in the tree can drop and bounce off lower branches to points some distance from the tree, orders will also be made for the removal of fruit beyond the parts of the tree that immediately overhang the applicant's property. It is reasonable that the cost of carrying out these orders is borne by the respondents as owners of the tree. To facilitate the inspection from the ground, the applicant will be required all reasonable access provided reasonable notice is given. 23Therefore as a result of the forgoing, the Orders of the Court are: (1)The application is upheld. (2)Between 1 November and 20 December each year, the tree shall be thoroughly inspected for the presence of fruit by an arborist with a minimum AQF level 3 qualification and appropriate insurance. (3)The first inspection is to commence in 2011 and then annually within the time period specified in order 1. (4)Any fruit 100mm or more in diameter in any dimension is to be removed from all parts of the tree that overhang the applicant's property to a distance within the fence line into the respondent's property of 2m. The de-coning is to occur at the same time as the inspection. (5)The cost of the inspection and any de-coning is to be borne by the respondents. (6)The applicant is to provide all reasonable access for the inspection and any resulting de-coning to be done safely and efficiently. (7)The respondents are to give the applicant at least 2 working days notice of the inspection. J Fakes Commissioner of the Court 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: 16 May 2011