Hepworth v Trzebiatowski

Reasonable effort to reach agreement

1. Ms Hepworth wrote to the Respondents asking them to remove overhanging branches. I am satisfied that her effort to resolve the issue was reasonable.

Are the trees likely to cause damage or injury?

1. In her original application, Ms Hepworth raised the issue of brush turkeys roosting in the overhanging branches of Tree 1 and their faeces falling into her pool and onto the surrounding paving. In Willis v Johnson [2021] NSWLEC 1513 the Court explained that Pt 2 of the Trees Act did not include the jurisdiction to make orders to remedy this problem.

Tree 1

1. The land here is steep. The trees grow near the top of a rocky outcrop close to the common boundary of these two properties. The Respondents' land is higher than the Applicant's land, so that the trees are almost 10 metres above the level pool area on Ms Hepworth's property. Due to overshadowing from another tree, Tree 1 has grown so that it leans principally to the east. Part of its crown overhangs the boundary, with branches extending approximately 2-3 metres over Ms Hepworth's property, being her pool and poolside paving.
2. Ms Hepworth submitted that branches have fallen from the tree. She provided a photograph of a branch that had fallen from this tree during a strong wind, landing on a fence by her dwelling some 10 metres away. She is concerned that more branches will fall. Ms Bennett pointed out branch stubs remaining from several branch failures. Ms Bennett stated that branches are most likely to fall during winds, so that even though most of the tree's crown is above the Respondent's property, it could not be predicted where branches would fall.
3. Ms Hepworth is concerned that the tree would cause damage during a fire. The Respondents' property is within a bushfire zone. Ms Bennett wrote of the risk of embers falling from the tree during a bushfire and concluded that the tree posed such a high risk that it should be removed.
4. Ms Bennett identified defects in the tree including a wound at its base and signs of reactive growth indicating stresses on the stem.
5. Ms Bennett concluded that the tree is likely to fail completely due to a combination of its leaning habit, with most of its crown weight well out to the east, and its origins in the rocky outcrop, where development of a well-structured root plate might be limited.
6. Ms Hepworth referred to the Respondents' proposed development of their as yet undeveloped bushland property. The Respondents propose to locate their dwelling close to the tree, within its structural root zone. She submitted that this would further compromise the tree's stability.
7. Ms Hepworth submitted that Ms Bennett's report should be preferred over the Respondents' 2019 tree report obtained to assist with developing their property. Ms Bennett assessed this tree for its risk potential, whereas the Respondents' arborist had only assessed trees for their retention ratings relating to potential site development.
8. Mr Trzebiatowski pointed out that only a small portion of the tree's crown overhangs Ms Hepworth's property. He submitted that the tree is stable, being a locally native tree that has grown here and adapted to its growing environment.
9. Mr Trzebiatowski submitted that his proposed dwelling would have only piers within the tree's root zone, not a strip footing, avoiding any significant damage to tree roots.
10. Mr Trzebiatowski submitted that evidence in his arborist's tree report should be preferred because it was an unbiased opinion given only for the purposes of assisting the design of his development. In that report (Urban Arbor, 20 March 2019) Tree 1 ('Tree 31' in that report) was noted to lean to the east but was allocated good structure and a long useful life expectancy.

Findings

1. Firstly, I address the tree's structure. The landscape here is not unusual in the area. Numerous trees grow out of rocky outcrops, many of them growing out at an angle due to overshadowing or other environmental conditions. No evidence has been adduced here to demonstrate that, as a result of these conditions, this tree is likely to fail within the near future, being a period I regard as the next 12 months as per the Court's principle in Yang v Scerri [2007] NSWLEC 592.
2. The tree's crown structure is typical for the species. No major defects were observed. I accept Ms Bennett's comments that the crown is exposed to winds; but bringing my own arboricultural expertise I do not accept that failure of large branches is likely in the near future. It is not known if the branch that fell on the fence near Ms Hepworth's dwelling had structural defects that contributed to its failure.
3. During the onsite view I inspected the base of the stem where Ms Bennett identified wounding. I determined that any damage to the tree's structure was minor only and did not increase the tree's likelihood of failure.
4. I find it is likely that deadwood and branches at the outer crown are likely to fail in the near future. Those above or close to Ms Hepworth's property are likely to fall into her pool or onto the poolside paving, where property damage or injury are likely to result. This risk cam be mitigated through relatively minor pruning. Given the situation, this will require a climbing arborist rather than an elevated work platform.
5. Turning to the risk of bushfire, the Respondent gave evidence that he is required to follow the recommendations of a bushfire expert's report. While Ms Bennett referred to the risk of embers from the tree causing property damage, as a fellow arborist I do not regard this as an area within our expertise. Ms Bennett thought the tree should be removed on this basis. Embers following a bushfire will come from numerous trees on this outcrop, so this reasoning should not be used to remove only one tree. I'm not satisfied that removing only one tree would significantly reduce the risk of damage from embers.
6. Plans for the Respondents' dwelling have not been approved. Impacts on Tree 1 would typically be considered by Council when determining the Development Application. I cannot reasonably consider the impacts of a proposal that might yet not be approved or built.

Tree 2

1. The Black Tea-tree is in poor health and declining. It also grows atop the rocky outcrop and leans out slightly above Ms Hepworth's property. Ms Bennett reported that as the crown declines, the tree's roots are also declining. If it falls, Tree 2 will fall into Ms Hepworth's property, into or beside her pool, where property damage or injury is likely. Due to the tree's poor condition, I accept that this is likely in the near future. The tree should be removed.

Other matters

1. I have considered the matters at s 12 of the Trees Act. Pruning Tree 1 and removing Tree 2 would not adversely affect local environmental values, nor the amenity of either property. I informed Mr Trzebiatowski that Council permission will not be required for tree works ordered by the Court (s 6(3) of the Trees Act).

Orders

1. As a result of the above, the Court orders: 1. The application is granted to the extent of the orders below. 2. 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 carry out the following works: 1. prune Tree 1 (Grey Gum) to remove all deadwood greater than 40 mm in diameter above both the Applicant's and Respondents' properties within 3 metres of the common boundary line and to reduce the crown where it extends over the Applicant's property by up to 15% total crown mass; 2. remove Tree 2 (Black Tea-tree) to no more than 500 mm above ground level. 1. All works are to be done in accordance with the guidelines of the Safe Work Australia 2016 'Guide to managing risks of tree trimming and removal work'. Pruning works are to be in accordance with AS4373 'Pruning of amenity trees'. 2. The Respondents are to give the Applicant 7 days' notice of the works ordered above. 3. The Applicant is to allow any access required to complete the works ordered above during reasonable hours of the day. 4. The exhibits are returned other than exhibit A.

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: 21 February 2022