Green v The Owners - Strata Plan No 16846

Framework of this decision

1. The Swamp Mahogany is a tree for the purposes of the Trees Act and is on land adjoining the applicant's. The issues of contention, which I must determine today, are:

• Whether the applicant has made reasonable effort to reach agreement (s 10(1) of the Trees Act); and
• Whether the tree 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 (s 10(2) of the Trees Act).

1. If both of the above questions are answered in the affirmative, before making any orders, I must consider a range of matters at s 12.

Brief outline of the situation

1. This Eucalyptus robusta (Swamp Mahogany) ('the tree') has grown here for some years and is now a mature tree. It is less than one metre from the common boundary shared by the applicant and the respondents. The respondents' multi-dwelling building is set well back from this boundary, with lawn surrounding the tree. In 2012, multiple townhouses were built on the property next to the respondents' land. These townhouses were constructed to the property boundary. Ms Green owns the front townhouse, the boundary wall of which is less than one metre from the tree. The roof of the second storey of her dwelling is less than one metre from the tree's upper stem. Her son's bedroom is in this section of the upper storey, beneath the tree's crown. A small courtyard with a clothesline is several metres to the north.

Has the applicant made reasonable effort to reach agreement?

1. Ms Green provided copies of emails requesting that the respondents take action to remove the tree to prevent damage or injury. Ms Green applied unsuccessfully for mediation through the Community Justice Centre. She also obtained a quote and advice from an arborist. I am satisfied that she has made reasonable effort to reach agreement with the respondents.

The jurisdictional test at s 10(2) of the Trees Act

1. The Court only has jurisdiction in certain circumstances, limited at s 10(2): 10 Matters of which Court must be satisfied before making an order (1) … (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.

The applicant's submissions

1. Ms Green contends that the tree has caused damage, will cause damage, and is likely to cause injury. Her submissions are set out below.
2. The tree's crown extends for some 4 metres above Ms Green's property. Leaves fall onto the roof and into gutters. Gutters get blocked unless cleaned out frequently, an activity which is hazardous on the upper storey. Guttering, especially on the upper storey, has been dislodged from the fascia board by the weight of debris. The maintenance required to maintain the property with the tree so close is onerous.
3. Ms Green said that sap falls onto the roof and onto washing on the clothesline, staining both.
4. Small branches fall onto the car in the parking area in front of her townhouse. Ms Green submitted that larger branches would cause damage.
5. Large branch failures could cause serious injury to anyone in her son's bedroom or in the courtyard.
6. Roots from the tree grow beneath her dwelling and will cause damage. Ms Green relies on the emailed advice from Peter Berecry, AQF level 5 arborist from Port Tree Fella Pty Ltd. By email on 10 September 2018, Mr Berecry wrote: "…As discussed today re Swamp Mahogany. The trees within 1 meter to your residence. The trees roots that hold the tree in the ground Structural Root Zone (SRZ) are growing into your residence. It is advised that the tree be removed as it may cause further damage. Pruning of the trees overhanging limbs to the West over your roof would actually increase the hazard and failure potential. Canopy inbalance would make the remaining limb become windthrown. Pruning to the roofline would not conform to AS4373-2007 Pruning of Amenity trees and PMHC codes. I would not recommend nor undertake this type of pruning. This pruning does not solve the issue that you originally sought my advice for which was the proximity to footings. …"
7. Mr Berecry also provided Ms Green with a quote for removing the tree, adding that council permission was not required because the tree is less than 3 metres from a dwelling.

The respondents' submissions

1. Mr Sardelich, for the respondents, argued that a root barrier should have been installed when the townhouse was constructed this close to the tree. He pointed out that there was no cracking in the concrete strip along the boundary less than one metre from the tree.
2. The respondents' position is that they have no issues with the tree being removed, but Ms Green should pay for it. Mr Sardelich submitted that the tree was already there when the townhouse was constructed close to it and beneath its crown. The problems arising from this are no result of the respondents' actions and it is therefore up to the applicant to pay for the tree's removal as she is the one who wants it removed. Mr Sardelich stated that the respondents would support an application to Port Macquarie Hastings Council to remove the tree on that basis.
3. In 2014, the respondents obtained a quote from Port Tree Fella Pty Ltd for pruning the tree. The quote advised that the tree was protected as it was a Koala food tree. The respondents engaged another arborist soon after to prune the tree.

Findings

1. While the parties seem to agree to tree removal, but disagree as to who should pay for it, I must decide this matter according to the framework of the Trees Act.
2. I am satisfied that the tree has caused damage, as per some, but not all, elements of Ms Green's application and submissions.
3. Debris in roof guttering has contributed to its deterioration at the upper level of Ms Green's dwelling, where guttering has come away from the fascia.
4. Sap has stained her roof. No evidence was adduced as to damage to washing on the clothesline.
5. There is some deadwood in the crown, including in that section above Ms Green's dwelling. This may damage roofing or a vehicle parked on her property when it falls, which it is likely to do in the near future. It may also injure someone in the courtyard. The lowest limb over Ms Green's dwelling is becoming overextended due to overshadowing of other limbs above. This limb is also likely to fail in the near future.
6. I do not accept that large live limbs are likely to fall and cause damage or injury. Live limbs appear structurally sound with well-formed forks. The dieback of smaller limbs at the outer crown, and the presence of epicormic growth in the inner crown, perhaps indicate stress following construction of the townhouse and any impacts this then had on the tree's roots.
7. There is no evidence that roots have damaged Ms Green's property. No investigations have been undertaken in this regard. There is nothing to indicate root growth is likely to damage Ms Green's property in the near future.
8. Having found that the tree has caused some damage to guttering, and is likely to cause damage in the near future through the failure of relatively small limbs, the Court is able to make orders. Before doing so, I consider the matters at s 12 of the Trees Act. Relevant matters include:

• The tree is close to the boundary and the applicant's property.
• The tree was there when the applicant's townhouse was constructed.
• The tree contributes to the landscape value of the respondents' property and to public amenity.
• The tree provides habitat for native fauna including koalas and birds.

Conclusions

1. Based on the above, removal would be disproportionate to the minor damage caused. The risk of damage or injury can be minimised by pruning the tree to remove deadwood and one live limb above the applicant's dwelling.
2. I appreciate that Ms Green finds the tree causes nuisance, but removing the tree or pruning its crown to the boundary would be excessive and disproportionate. Although debris has damaged guttering, I see no reason to deviate here from the principle established in Barker v Kyriakides [2007] NSWLEC 292 at [20]: "For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis. The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree."
3. Ms Green noted that she has gutter guard on some roof guttering above her courtyard, but not on the affected gutters at the front of her dwelling.
4. The orders made below do not prevent the parties applying to Port Macquarie Hastings Council to remove the tree (if permission is required) if they agree on who should pay for that.

Orders

1. As a result of the foregoing, the Court orders: 1. Within 60 days of the date of these orders, the respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances to prune the Swamp Mahogany near their side boundary to: 1. Remove deadwood greater than 25 mm diameter; 2. Remove the lowest limb over the applicant's property (see photo below) back to its branch collar, and reduce the crown above the applicant's property by no more than 10% total crown mass. 1. All pruning works ordered above must be carried out in accordance with AS4373:2007 Pruning of amenity trees and the 2016 Safe Work Australia Guide to managing risks of tree trimming and removal work. 2. The respondents are to give the applicant 7 days' notice of all works ordered above. 3. The applicant is to allow all access required to complete the works ordered above during reasonable hours of the day.

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: 18 October 2019