Hooper v Zhang

The onsite hearing

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.

Jurisdictional requirements

1. With respect to s 7, an owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land.
2. The Court's ability to make orders is limited, at s 10 of the Trees Act. 10 Matters of which Court must be satisfied before making an order (1) The Court must not make an order under this Part unless it is satisfied: (a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, and (b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 8. (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.
3. If the jurisdictional tests at s 10 of the Trees Act are satisfied, the Court can make orders such as those at s 9 to remedy, restrain or prevent damage to property, or to prevent injury to a person, as a consequence of the tree. Before determining the nature of any orders, the Court must consider a range of matters set out at s 12 of the Trees Act.
4. Ms Hooper provided evidence of ongoing communication including clear requests for tree removal with the Respondent's property agent, Mr Huong, which is sufficient to satisfy s 10(1)(a) of the Trees Act. The Applicant also provided at least 21 days' notice of the application, so as to engage s 10(1)(b) of the Trees Act.
5. Therefore, the principal jurisdictional tests in this matter are at s 10(2) of the Trees Act.

Damage to rear yard office

1. The Applicant claimed that dead sticks and heavy plates of bark had been falling into her back yard in the area under the tree's canopy between the common boundary and the tree, and that larger branches are likely to break and fall onto the cabin. Mr Dunlop, basing his risk assessment over a 24 month period, determined a High risk of such branch breakage onto the cabin, and a Moderate risk of root plate failure resulting in the whole tree falling onto the Applicant's land, including the cabin.
2. With the arboricultural expertise I bring to the Court, I am not satisfied, however, that such events and consequent damage is likely in the "near future", which, in a guidance decision published in Yang v Scerri [2007] NSWLEC 592, as a rule of thumb, is deemed to be a period of 12 months from the date of the determination.
3. While major branch failure is possible and I don't have the benefit of an aerial inspection of the canopy to clarify my opinion, the larger wood of this species is strong, durable and relatively resistant to decay and I would not expect it to deteriorate sufficiently to "probably" break from the tree over the next 12 months. I am certainly not satisfied that root plate failure is likely in the near future.

Risk of Injury

1. Ms Hooper also claimed that the tree presents a genuine risk of injury to her family and to the Respondent's tenants.
2. 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]).
3. 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.
4. 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.
5. 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.
6. 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.
7. 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:

Discretionary matters -Section 12

• The tree is situated on the Respondent's land close to the common boundary (s 12(a)).
• As the tree is located in an area classified by the NSW government as a CEEC, the Respondent requested and was granted a Threatened Species Licence (a class of biodiversity conservation licence) under Pt 2 of the Biodiversity Conservation Act 2016. Notwithstanding that the species was wrongly identified as a Eucalyptus acmenoides, a condition of the licence was "Replacement planting of one White Mahogany (Eucalyptus acmenoides) in a suitable location on the property to maintain canopy cover and biodiversity values". The Respondent is required to satisfy this condition by replanting an advanced Eucalyptus paniculata (Grey Gum) (s 12(b1)).
• As it is dead and absent of foliage, the tree contributes little to protection from the sun, or from wind. Though it is visible from neighbouring houses, and previously provided intrinsic value to public amenity, such benefit has reduced along with its declining condition, and decreased canopy cover (s 12, subss (b3), (e), (f)).
• This was a very significant tree, with historical value (s 12(c)).
• When a large tree presents a genuine risk of injury, this must be prioritised in assessing the tree. I am not satisfied that root plate failure is likely, even in the medium term, provided the canopy is removed and the residual trunk is thus no longer prone to wind impact. This option allows the trunk to continue to provide habitat for fauna, and hence make local ecosystem and biodiversity contributions (s 12(d)).

Conclusion

1. I have examined the tree and the site and have reached the following conclusions: 1. This large, dead tree has a recent history of branch failure, and shedding of heavy plates of thick bark, such that I am satisfied that the tree presents a genuine risk of injury to the Applicant's family and the Respondent's tenants. In the absence of intervention with the tree, this risk is likely to increase. 2. Consequently, s 10(2) of the Trees Act is satisfied, and orders shall be made for relatively urgent tree removal down to a maximum trunk height of 6 m. I am satisfied that the trunk's residual risk is low, and acceptable. 3. The Threatened Species Licence procured by the Respondent as required for the tree's removal stipulated a condition of replanting. The Respondent shall satisfy this condition by replanting an advanced Eucalyptus paniculata (Grey Gum) in a suitable location on the property to maintain canopy cover and biodiversity values. 4. It is customary for the Respondent to pay where orders are made under the Trees Act, and there is no reason to vary that here, given that the Respondent owes both Ms Hooper and his tenants a duty of care to not expose them to risk of injury. Regardless of whether Mr Zhang has the tree removed to ground level or to a trunk height of 6 m, the Respondent shall be responsible for the full cost of the tree removal works.

Orders

1. The Court orders that: 1. Within 40 days of the date of these orders, the Respondent, at his expense, shall employ AQF level 3 qualified arborists, who hold all appropriate insurances, to remove the large dead Ironbark tree from the north-eastern corner of his property. 2. All branches of the tree shall be removed, and the trunks shall be reduced to a maximum height of six (6) metres above ground level. All refuse from the tree shall be removed from the site. 3. The tree removal works shall be completed in accordance with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016. 4. The Respondent shall provide the Applicant with at least 72 hours written notice of the date and approximate start time of the tree removal works. 5. Should it be required, the Applicant shall provide all reasonable access to the Respondent's contracted arborists to complete the works and remove refuse. 6. The tree removal works shall be undertaken during reasonable working hours.

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: 23 February 2023