Hooper v Zhang

[2022] NSWLEC 1746

Land and Environment Court (NSW)|2022-11-17

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2022-11-17

Source

Original judgment source is linked above.

Judgment (9 paragraphs)

[1]

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

COMMISSIONER: Mr Zhang (the Respondent) owns a large property in St Ives, which he leases to tenants. A large Eucalyptus paniculata (Grey Ironbark) (the tree) is located in the Respondent's rear yard close to an adjacent neighbouring property, owned and occupied by Julie Hooper (the Applicant) and Martin van Rhoon. The tree's canopy encroaches well over the parties' shared side boundary above the Applicant's land.
Ms Hooper provided a report by Mr William Dunlop of Temporal Tree Management Pty Ltd, a consultant arborist with AQF Level 8 qualifications, dated 10 November 2022, which noted that the tree was in "very poor health" with "Signs of extensive dieback and bark delamination observed within the tree's canopy."
Mr Dunlop wrote that he had previously assessed the tree for Ms Hooper in October 2019 and in June 2022, and that the tree's condition and foliage cover had declined rapidly. An aerial photograph in the report sourced from SixMaps in 2022 showed the tree with a dense full canopy of foliage in 2018.
Ms Hooper claimed that the tree began shedding bark and deadwood in March or April 2022 and Mr Dunlop submitted that at his June 2022 inspection, the tree appeared to be dying back rapidly (from the branch tips) and that one of the tree's three central trunks over 500mm in diameter was dead.
As more dead material progressively fell from the tree, Ms Hooper became increasingly concerned about the tree's rapidly deteriorating condition. Consequently, Ms Hooper made an application, pursuant to s 7 of Pt 2 of the Trees (Disputes between Neighbours) Act 2006 (the Trees Act) seeking orders for urgent removal of the tree to remedy likely damage to property, and genuine risk of injury.
Ms Hooper claimed in her application that Ku-ring-gai Council was "in agreement [that] the tree needs removing" but they could not compel the Respondent to remove the tree, and Ms Hooper was concerned about "the delay and the risk to life and property".

[2]

The onsite hearing

The onsite hearing was attended by Ms Hooper, Mr van Rhoon, and Mr Dunlop representing the Applicant, and Mr Zhang with his property agent, Mr Jack Huong.
The tree was dead. It is a large, mature Grey Ironbark standing approximately 22 metres (m) tall, with a diameter at breast height of about 1.5 m, and a canopy spread of about 18 m. The tree forks at a height of about 2.5 m into about four main initially fairly vertical trunks which arch outwards higher in the canopy. At least one main branch scaffold hangs far over the Applicant's land.
Mr Dunlop suggested that the tree was likely a remnant specimen of the indigenous ecological community, classified as Sydney Turpentine - Ironbark Critically Endangered Ecological Community (CEEC). Considering the relatively slow growth rate of this species and the tree's considerable size, I would concur with Mr Dunlop.
The tree's rapid decline was unusual, to say the least. Mr Dunlop, who was unable to access the tree base for his inspections, speculated that either poisoning or the root rot pathogen Armillaria luteobubalina (Armillaria) may be the cause, as the property's prior owner had advised Mr Dunlop at his 2019 inspection that Armillaria had caused plant death on the property in the past.
In her application, Ms Hooper alleged that a Ku-ring-gai Council arborist who inspected the tree advised that, "it was his opinion that the tree had been poisoned and that he could see that the roots had been tampered with". While the upper surface of various primary roots had been damaged and vascular tissue was exposed, the apparent evidence was atypical of 'normal' poisoning. In the absence of Ku-ring-gai Council investigating and conducting root tissue and/ or soil analysis, the cause of tree death thus remains unclear, notwithstanding that I observed no obvious evidence of Armillaria.
In 2021, the Applicant installed an office/cabana in her rear yard about 8 m from the tree. It was constructed using pier and beam techniques, and I am satisfied this construction was likely to have only minor negative impacts on the tree.
Mr Dunlop assessed tree risk with respect to various targets using the internationally accepted Quantified Tree Risk Assessment (QTRA). He attributed a High risk to branches striking the rear yard office, a Moderate risk from deadwood or bark hitting people on the Applicant's deck, a Moderate risk of catastrophic root plate failure causing the tree to fall onto the office, and a Moderate risk of branches falling from the "lateral dead branch in south-western canopy" onto people using the Applicant's back yard.
Mr Zhang made no objection to the removal of the tree but claimed that he was unsure if removal was his financial responsibility. Through his property agent, the Respondent repeatedly attempted to negotiate sharing of the cost of the works with the Applicant.

[5]

Risk of Injury

Ms Hooper also claimed that the tree presents a genuine risk of injury to her family and to the Respondent's tenants.
When considering injury, the Court must assess the risk posed by a tree in the foreseeable future based on the characteristics of the tree/s, the history of any failures, any other relevant evidence, and the circumstances of the site apparent at the time of the hearing (McPherson v Lake [2017] NSWLEC 1081 [at 10]).
The Applicant nominated her back yard and advised that she had moved her office from the back yard into the main dwelling. Mr Dunlop also nominated the back yard under the tree's canopy, and the Applicant's rear deck.
While assessment of damage in the near future under the Trees Act relates only to the next 12 months and only to the Applicant's property, consideration of injury can relate to other areas surrounding the tree and is not restricted temporally.
In Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152, at [175], Preston, CJ said, "the applicant's concern about likely injury can be but does not necessarily have to be injury to a person who would be on the applicant's land". Additionally, orders have been made for the removal or pruning of trees on the basis they may cause injury to persons on the Respondents' land, as in Reuben v Lace [2010] NSWLEC 1024.
Considering that the tree is dead, that many small branches and bark plates have fallen from the tree into both the Applicant's and Respondent's properties, that the propensity for branch shedding is likely to increase over time, and that the consequences of impact by falling branches would likely be very serious, I am satisfied that the tree represents a moderate risk to the Applicant's family and to the Respondent's tenants, and that this risk would increase if the tree remained in situ. As a consequence, s 10(2)(b) of the Trees Act is engaged.
With s 10 satisfied, in order to determine, what, if any, orders should be made, the Court must consider the matters in s 12 of the Trees Act, as follows: