Jarrett v Hutchinson

Land and Environment Court (NSW)|2020-05-28

Background to the application

Petina Jarrett ('the applicant') owns a residential property in Bateau Bay. Julie Hutchinson ('the respondent') owns the neighbouring property. Trees on Ms Hutchinson's property include a Coast Banksia (Banksia integrifolia) ('the tree'), which grows next to their common boundary and only a short distance from the dwelling on Ms Jarrett's property.
After negotiating the pruning of a tree on Ms Hutchinson's property in 2018, Ms Jarrett informed Ms Hutchinson that the wrong tree had been cut. She asked that Ms Hutchinson remove the Coast Banksia because it was displacing the boundary fence.
Communications between the parties continued for some time, mostly through a property agent. They were unable to come to a satisfactory outcome, so Ms Jarrett applied to the Court, pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) ('the Trees Act'), seeking orders for the respondent to remove the tree and repair the fence to its original form at her expense.
With COVID-19 restrictions preventing onsite hearings at the time, the parties agree to the matter proceeding via telephone. The hearing took place on 28 May 2020. Both parties were self-represented.

The facts not in dispute

The tree grows on Ms Hutchinson's property - that is, the lower stem is on her side of the fence, from where it enters the ground to the top of the fence, and the parties agree that the fence is approximately on the common boundary. The fence is displaced in the vicinity of the tree and the parties agree that this has been caused by the tree.

Framework of this decision

The tree, which is on land adjoining Ms Jarrett's, has damaged her property, as she shares ownership of the fence. This satisfies jurisdictional tests at ss 7 and 10 of the Trees Act, allowing me to make orders such as those set out at s 9. Before making any such orders, I must consider a range of matters set out at s 12 of the Trees Act.

The applicant's submissions

Ms Jarrett submitted that the tree has displaced the fence by pushing against its base. The problem is partly concealed below ground. The tree does not push against the upper part of the fence. Ms Jarrett submitted that the fence needs replacing. She obtained a quote of $1,100 from Wombat Fencing and Gates for the replacement of approximately ten metres of fence in the vicinity of the tree.
Ms Jarrett obtained advice from a fencing contractor that the fence cannot be repaired without removing the tree. She obtained a quote of $3,300 from Habitat Tree Works for removing the tree to ground level. Ms Jarrett asserted that this would not require a permit because the tree is within three metres of the fence, which is an approved structure. The tree removal quote states the same.
Some time ago Ms Jarrett replaced her hot water system, at the same time moving it away from its position near the tree, due to damage she said was caused by the tree.
Ms Jarrett expressed concern that the tree is already large and with further growth will become more dangerous and cause more damage.
Ms Jarrett explained that she has made all reasonable effort to resolve the situation. After Ms Hutchinson first responded to her requests, another tree was pruned. Ms Jarrett promptly informed Ms Hutchinson that the wrong tree was pruned and that she was concerned about the Banksia against the fence.
Ms Jarrett argued that Ms Hutchinson should pay for tree removal and fence repairs, since Ms Hutchinson's tree has caused the damage. Ms Jarrett's financial situation has been restricted by circumstances arising from COVID-19.

The respondent's submissions

Ms Hutchinson submitted that she first received Ms Jarrett's request via her estate agent in October 2018. She said Ms Jarrett was concerned about debris from another tree blocking her gutters, so Ms Hutchinson arranged for the tree to be pruned. She was frustrated when Ms Jarrett then said she wanted the Banksia removed as well. Ms Hutchinson said that she never had direct contact with Ms Jarrett, and it was not until February 2020 that she realised Ms Jarrett was of the view that the wrong tree had been cut.
Ms Hutchinson saw no need to remove the Banksia. She submitted that the fence has not collapsed but is only misaligned. She thought the fence's condition was to be expected given the usual wear-and-tear of such a fence since she purchased her property in 2003. Ms Hutchinson argued that the fence is not unsafe, it is not about to collapse, and it secures dogs and children in the respective properties.
Ms Hutchinson presented options for: 1. The tree 1. retaining the tree, but pruning any hazardous branches; 2. removing the tree to ground level only; or, 3. removing the tree and grinding its stump. 1. The fence 1. repairing or reconstructing the section of fence adjacent to the tree so that it is straight and vertical, can function as an effective dividing fence, and allows for future growth of the tree; or 2. reconstructing the entire fence if the tree is removed.
Ms Hutchinson expressed a preference for removing the tree, if necessary, and repairing the section of fence adjacent to the tree.
Ms Hutchinson submitted that the costs of any works to the tree and the fence should be shared equally by the parties.
Ms Hutchinson submitted that circumstances arising from COVID-19 have restricted her financial situation.

Findings

The situation is shown clearly enough in photographs provided by Ms Jarrett (Exhibit C) and Ms Hutchinson (Exhibit 1) to satisfy me that the tree has displaced the fence. The section of the fence adjacent to the tree is distinctly out of alignment. Although this satisfies the jurisdictional test at s 10(2)(a) of the Trees Act, the Court is not obliged to make the orders sought by Ms Jarrett. Rather, at s 9, the "…Court may make such orders as it thinks fit to remedy, restrain or prevent damage to property, or to prevent injury to any person, as a consequence of the tree the subject of the application concerned."

Matters to be considered before determining the orders

The relevant matters at s 12 of the Trees Act are outlined below.
The tree grows on Ms Hutchinson's property. The base of the tree is on her side of the boundary fence. The parties do not dispute that the fence marks the boundary. For the purposes of determining ownership, I am satisfied that Ms Hutchinson owns the tree. For the purposes of s 7 of the Trees Act, I am satisfied that the tree is situated on land adjoining the applicant's land.
It seems that the tree is exempt from any requirement for a permit for its removal under the Wyong Development Control Plan 2013 (WDCP 2013), which still applies to this area of Central Coast Council ('Council'). In Chapter 3.6 of the WDCP 2013, exempted works under the DCP include the "…removal of trees or vegetation located within 3 metres of an existing approved structure". The structure may be located on the subject land or adjoining private land. The boundary fence would not require approval for construction, so is not an 'existing approved structure'. However the tree is also within 3 metres of Ms Jarrett's dwelling, which is an approved structure. There is no evidence that the tree is a threatened species, or a habitat tree for threatened fauna species, or part of an endangered ecological community - three conditions when the exemption above would not apply - so it appears that the tree could normally be removed without requiring Council's permission. Approval or permission would not be required under any other Acts.
Pruning to remove any hazardous branches, one of the options presented by Ms Hutchinson, would not damage the tree.
The tree contributes to the landscape value of Ms Hutchinson's property. It contributes to local environmental values and to biodiversity. It contributes to the overall canopy cover of the area.
Ms Jarrett has taken steps to prevent damage. She has moved her hot water system away from the tree. She has asked Ms Hutchison to remove the tree.
There is no suggestion that Ms Hutchinson planted the tree this close to the boundary fence. She undertook other tree works after Ms Jarrett contacted her. She expressed her willingness to remove the tree if necessary. I accept her assertion that the fence's condition is also partly due to its age.
In summary, the tree provides benefits to the environment. It has damaged the fence through no fault of Ms Jarrett. Ms Hutchinson's actions did not directly cause the damage, although she may have prevented the damage by taking action earlier. Action can be taken now to rectify the damage and prevent further damage. There is no evidence that the tree is causing any other damage, or that it is likely to cause damage or injury in the near future. Pruning to remove dead and hazardous branches would minimise the risk of damage to Ms Jarrett's property, or injury to a person. Tree removal is not required for the purposes of preventing damage or injury.
Ms Jarrett's other concern is that debris from the tree falls on her property and blocks her gutters. This leads to a maintenance issue for Ms Jarrett, but as per the principle in Barker v Kyriakides [2007] NSWLEC 292 at [20], this is not a reason to remove the tree.

Cost of the works

Based on the foregoing, I will make orders for the tree to be pruned to remove any deadwood and hazardous branches that may fall onto Ms Jarrett's dwelling, and for the fence to repaired in such a way as to accommodate the tree's future growth. The tree belongs to Ms Hutchinson. As she is responsible for its maintenance, she will pay the cost of the tree works. The fence's condition has been affected by its age, but it only requires repair at present due to the growth of Ms Hutchinson's tree, so she will also pay the cost of the fencing works.
Should Ms Hutchinson prefer to remove the tree to ground level, an option for which she expressed some willingness during her submissions, that is a matter for her. The orders below do not prevent her from taking that action.

Orders

For the reasons given above, the Court orders: 1. Within 60 days of the date of these orders, the respondent is to engage and pay for a suitably qualified arborist (minimum AQF level 3) with all appropriate insurances to prune the tree, removing deadwood >50 mm in diameter and any hazardous branches. These works must be carried out in accordance with AS 4373-2007 Pruning of amenity trees and the Safe Work Australia (2016) Guide to managing risks of tree trimming and removal work. 2. Within 90 days of the date of these orders, the respondent is to engage and pay for a suitably experienced contractor to re-align the fence along the common boundary shared by the applicant and the respondent, within six metres of the tree, so that the fence is on the boundary, vertical and stable, and so that there is clearance of at least 100 mm between the fence and all parts of the tree, using suitable methods that maintain a stable fence that is child- and dog-proof. 3. The respondent is to give the applicant at least two days' notice of the works in (1) and (2). 4. The applicant is to allow all access required by the arborist and the fencing contractor to carry out the works in (1) and (2) 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: 14 August 2020

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