This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
COMMISSIONER: Mrs Jessup (the applicant), and Mr Watson (the respondent), share a side boundary between their properties in Roseville Chase. The applicant's property is located on the north-eastern side of the respondent's land, and both properties face the same street, to the south-east.
The context for this application is unusual. The tree is a mature and long- established Angophora costata (Sydney Red Gum) (the tree) located in the side yard of the adjacent neighbouring property, close to the common boundary. It has been pruned repeatedly and excessively over past decades and is consequently exhibiting stress, manifest most obviously as a sparse foliage cover. This pruning had progressively removed all except one branch that had previously been growing towards or above the applicant's land.
During a storm on the night of Sunday, 3 July 2022, this remaining protruding branch was lifted and twisted such that it folded back towards the respondent's property and lodged into the canopy of the tree, above the respondent's land. The branch remained attached to the tree.
Mrs Jessup called out arborists, whom, she claimed, advised that the branch should be removed within 24 hours, so she contracted them to complete the work accordingly. The arborists attended on 7 July 2022 to undertake the works. Upon being advised that the arborists needed to access the tree from the respondent's land, the applicant directed the to knock on Mr Watson's door to gain his permission to access the tree. When the arborists received no answer to their repeated knocking, Mrs Jessup directed them arborists to proceed with the work from the respondent's land, regardless of not having Mr Watson's permission to do so.
In a letter to Mrs Jessup dated 8 July 2022, Mr Watson noted that, having been woken by the sound of a chainsaw, he opened his front door and found "three workmen on my property, up and around a mature and healthy Angophora costata growing on my property and cutting away branches". He asked the arborists to cease work and leave his property.
Having been advised by the arborists that Mrs Jessup had instructed them to work from and in the respondent's property, Mr Watson noted in his letter his incredulity "that you have a). not sought to engage, explain or seek access in advance, and b). act without permission". Mr Watson added that he had reported the matter to Ku-ring-gai Council (Council) and had requested they inspect the tree and provide advice. Mr Watson refused to respond to the applicant's request to remove the damaged branch or to allow access to his property, until such advice was gained.
In her application at question 32, with respect to the applicant making a reasonable effort to reach agreement, Mrs Jessup advised that Mr Watson refused to speak to her, and would communicate with her only in writing after a previous incident. Mrs Jessup acknowledged that when Mr Watson had allowed a small tree being removed from his land to fall onto the applicant's property, and he accessed the applicant's land without permission to remove the tree, a heated discussion ensued which soured the neighbours' relationship.
Council requires a tree owner's signature before processing applications seeking tree pruning or removal of trees on private property. Mrs Jessop provided a completed application form for pruning to Mr Watson, but in light of the circumstances described above, Mr Watson did not reply.
As a consequence, Mrs Jessup lodged an application, pursuant to s 7 of Part 2 of the Trees (Disputes between Neighbours) Act 2006 (the Trees Act) seeking removal of the damaged branch, at the respondent's expense.
[2]
The onsite hearing
Both parties attended the final hearing. Mrs Jessup was represented by her solicitor, Mr Jessup, while Mr Watson was self-represented. The tree was inspected from the respondent's land initially, then from various locations on the applicant's property, which cumulatively provided a clear view of the configuration of the branch in the canopy of the tree.
[3]
The applicant's case
Mrs Jessup proposes the following orders:
1. That in order to prevent injury to persons on the applicant's property and/or to prevent damage to the applicant's property, the respondent remove the broken branch in the tree on his property adjoining the applicant's property that is caught precariously in the canopy of the tree and is about to fall within 7 days.
2. That the respondent pays the applicant's costs.
3. At question 14 of her application, Mrs Jessup also seeks compensation of $540, being the arborists' initial call out fee incurred on 7 July 2022.
[4]
The respondent's case
Mr Watson acknowledged that the damaged branch needed to be removed, but, given that the branch was still intact in the tree more than three months after breaking, he submitted that the applicant had engaged the arborists to complete the work with undue haste and he disputed that such urgency was required. Considering "how the situation had played out", specifically the extent and nature of unauthorised access, Mr Watson questioned why he should pay any of the branch removal cost.
[5]
Jurisdictional requirements
With respect to s 7 of the Trees Act, 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.
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.
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.
Mrs Jessup outlined interactions with the respondent and the circumstances that led to a breakdown in face-to-face communication. Nonetheless, written communication to Mr Watson, and an attempt to organise mediation through a Community Justice Centre, which both parties confirmed, is sufficient to satisfy s 10(1)(a), "to make a reasonable effort to reach agreement with the owner of the land on which the tree is situated".
In Robson v Leischke (2008) 72 NSWLR 98; NSWLEC 152 (Robson), Preston CJ provides extensive commentary on this requirement. At [194 - 195], his Honour states:
"194 The Trees (Disputes Between Neighbours) Act 2006 does not specify any particular time at which the applicant must make a reasonable effort to reach agreement with the tree landowner, other than fixing the end point by requiring that the Court cannot make an order under the Act unless it is satisfied that the applicant has made a reasonable effort to reach agreement with the tree landowner. Hence, although it would be preferable for an applicant to make a reasonable effort to reach agreement with the tree landowner before making application to the Court, so as to avoid court action, there is no requirement to do so and a reasonable effort to reach agreement can be made after making the application at any time up until the Court determines the application.
195 The language in s 10(1)(a) of the Trees (Disputes Between Neighbours) Act 2006 that the applicant has made "a reasonable effort to reach agreement" is less demanding than the language used in provisions of other statutory enactments which require parties to make reasonable attempts to reach agreement in relation to matters claimed in the court originating process."
Therefore, the principal jurisdictional tests in this matter are at s 10(2) of the Trees Act.
[6]
Damage related to the tree
The applicant submitted that complete failure of the branch was imminent, and it was likely to fall on her house and cause extensive damage. I am not satisfied, however, that such damage is likely in the near future, where, in a guidance decision published in Yang v Scerri [2007] NSWLEC 592, as a rule of thumb, the 'near future' is deemed to be a period of 12 months from the date of the determination.
The branch appears to be lodged in the tree's canopy, with one of its live, sound secondary branches growing and hooking under another live, sound branch within the canopy which would provide stability. It is barely overhanging the applicant's property, if at all. It rests above the respondent's property, and, under the Trees Act, any claim relating to damage only applies to damage to the applicant's land. Even if the branch had not been lodged securely, given its protection from wind tight within the canopy, the likelihood of the branch folding back over towards the applicant's property was remote.
Having said this, it is understandable and prudent for the applicant to have sought urgent arboricultural advice when the branch broke, and for the arborists to be more conservative in their advice during a period of sustained stormy weather. Had they been more diligent in their inspection, however, and recognised the entanglement of the branch in the canopy, perhaps the applicant's response to the situation would have involved less chaos.
[7]
Risk of Injury
Mrs Jessop also claimed that the tree presents a genuine risk of injury to her family and to the respondent.
Regarding injury, the Court must consider 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]).
In Robson, at [175], discussing the jurisdiction of the Trees Act regarding injury, His Honour said,
"In contrast to the requirement that damage caused by a tree be to the applicant's property (s 7 and s10(2)(a)), likely injury can be to "any person" (s 7 and s 10(2)(b)). That phrase is ample enough to include the applicant but the person need not be the applicant. Moreover, there is no locational requirement that the person who is likely to be injured be on the applicant's land. Persons who might be likely to be injured could be on the applicant's land but, also, could be on the adjoining land on which the tree is situated or on other land in proximity (including public roads, pathways or reserves) that might be impacted by the tree, or part of it, failing."
Therefore, with respect to injury, the jurisdiction of the Trees Act does extend beyond the applicant's property, may include neighbouring land (i.e. "on other land in proximity"), and is not necessarily limited temporally.
The damage location, where the branch has twisted over but still appears fairly well attached, displays extensive wood decay fungi which will likely, over time, further break down wood tissue, leading to separation of the branch from the tree. When this occurs, the branch would become less predictable. Injury is more likely on the respondent's land than in the applicant's property, but orders have been made for the removal or pruning of trees on the basis they may cause injury to persons on the respondent's land, as in Reuben v Lace [2010] NSWLEC 1024. In this context, I am satisfied that the tree presents sufficient genuine risk of injury to contemplate orders.
As a consequence, s 10(2)(b) is met, and the jurisdiction 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.
[8]
Discretionary matters -Section 12
The tree is situated on the respondent's land close to the common boundary (s 12(a)).
Interference with the tree would, in the absence of s 6 of the Trees Act, require consent for pruning under Council's tree management controls, which are founded under the Environmental Planning and Assessment Act 1979.
The applicant had proposed pruning of the damaged branch, deadwooding, and reduction (or thinning) of the canopy density. Any removal of live foliage has a negative impact on trees as the trees' energy is produced by leaves. The removal of the damaged branch is necessary, but, particularly when trees are old and mature, as in this case, and the tree has likely been stressed over recent decades by the cumulative impact of excessive pruning orchestrated by the applicant and the prior owner of the respondent's property, all unnecessary pruning should be avoided. Certainly, there is no good reason to justify thinning the foliage, and, in the bushland setting that the tree is located, even deadwooding should be questioned as the retention of dead branches may enhance local biodiversity.
The tree contributes to the respondent's privacy, to the natural landscape and the scenic value of the land on which it is situated, plus protection from the sun and wind. (s 12(b3),(e)).
Being indigenous to the region, and a key species within the local ecological community, the tree likely provides food and habitat for fauna, and hence makes significant contributions to the local ecosystem and biodiversity (s 12(d)).
Being long established, the tree's root system is likely to assist in stabilising soil (s 12(g)).
Section 12(i) of the Trees Act considers anything, other than the tree, that has contributed, or is contributing, to any damage or likelihood of damage, including any act or omission by the applicant and the impact of any trees owned by the applicant. The fact that 'the tree was there first' is one such consideration.
Whilst, in the absence of historical records or evidence derived from core sampling a tree's trunk, it is often difficult to determine a tree's age, based on the arboricultural expertise that I bring to the Court, I consider it probable that the tree was growing in situ prior to the construction of the applicant's dwelling.
In Black v Johnson (No 2) [2007] NSWLEC 513, the Court has published a tree dispute principle which says, in summary, that the fact that the tree was there first should not impact on whether or not some order should be made about the tree but, subject to a range of matters discussed in the principle, the prior existence of the tree may be a relevant matter to be considered when deciding who should meet the cost of carrying out any orders which the Court might make. This principle shall be applied here.
The applicant maintained her claim on the respondent for compensation of $540 to cover the arborist's initial call out cost for the work stopped by Mr Watson. "Failure to give the tree owner an adequate opportunity to respond to the damage" is another consideration under the umbrella of s 12(i) of the Trees Act. When this occurs, as in this case, this failure can be taken into account by the Court when considering whether or not to make orders.
[9]
Conclusion
I have examined the tree and the site and have reached the following conclusions:
1. The broken branch lodged in the canopy of the tree is likely, over time, to dis-attach from the tree and become less stable. I am satisfied it thus represents a genuine risk of injury, particularly to the respondent.
2. As a consequence, s 10(2) of the Trees Act is satisfied, relevant discretionary elements under s 12 have been considered, and orders shall be made for removal of the branch per the applicant's proposed order 1.
3. The normal convention is for the respondent to pay for works required to carry out orders made under the Trees Act, but the fact that 'the tree was there first' provides good reason to vary that here. The cost of the works shall be shared between the parties.
4. The applicant's proposed order 2 has the respondent paying the applicant's costs. With respect to this claim, Commissioners do not have powers to order such costs. Claims for items such as these require lodgement of a Notice of Motion with the Court, which is heard before a registrar, or a judge.
5. The applicant's compensation claim for $540 is refused as Mrs Jessop failed to give Mr Watson an adequate opportunity to respond to the damage. Mrs Jessop's persistence with this claim to the conclusion of the final hearing appeared to reflect a regrettable lack of insight into the gravity of her actions which contributed to the dispute, while the respondent displayed admirable equanimity.
[10]
Orders
The Court orders that:
1. Within 60 days of the date of these orders, the respondent shall employ AQF level 3 arborists (the arborists), with all appropriate insurance, to prune the broken branch currently resting in the canopy of the Angophora costata to the branch collar approximately. 500mm below the point of partial breakage, in accordance with Clause 7.2.4 (Selective Pruning) of AS4373-2007 Pruning of amenity trees.
2. Within 3 days of the completion of the works in order 1 (the works), the respondent shall email the applicant a copy of a paid itemised invoice for the works.
3. Within 3 days of the receipt of said paid invoice, the applicant shall reimburse the respondent a quantum equivalent to 50% of the total of the invoice, by E.F.T. or bank cheque, provided the total cost of the works is less than or equal to $1628.00, being the cost of the works as specified by Forest Tree Service in their quote 2715 dated 5 July 2022 .
4. Should the cost of the works exceed $1628.00, within 3 days of the receipt of the paid invoice, the applicant shall reimburse the respondent $814.00, being 50% of Forest Tree Services Quote 2715, by E.F.T. or bank cheque.
5. All works shall comply with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016.
6. The applicant shall allow access to her property for completion of the works, should it be required by the arborists, upon receipt of at least 48 hours' notice from the respondent, provided to the applicant via email.
7. The works shall be completed during reasonable working hours.
[11]
Amendments
23 December 2022 - Pursuant to rule 36.17 of the UCPR (the slip rule), correction is made to typographical errors at paragraphs [2], [4], [14], [21], [31], [38] and [39].
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Decision last updated: 23 December 2022