Johnson v Kaushik

Johnson v Kaushik - [2024] NSWLEC 1374 - NSWLEC 2024 case summary — Zoe

[7]

Risk of injury to persons

The applicants claimed the tree presented a genuine risk of injury from overhanging deadwood falling and striking people and from the trip hazards caused by raised roots. They noted discouraging people from congregating under the tree's canopy and from walking near the trip hazards.
The tree appeared to be fairly healthy, and stable in the ground. There were no signs around the tree base, such as soil heaving and lifting, or cracks in the soil, that may alert an arborist to stability issues. The trunk looked sound, and attachments of live branches appeared strong and stable. Nonetheless, the high level of mid-sized deadwood in the canopy overhanging a considerable proportion of the yard would likely result in deadwood shedding sufficiently regularly to present a risk of injury. Though the risk is relatively low, the tree unreasonably impacted the applicants' use of their land, and I am satisfied that s 10(2)(b) is engaged.
Considering trip hazards in the artificial turf, I was unable to view roots as the turf was glued down and Ms Johnson was reticent to lift it. In Stevens v Russell [2016] NSWLEC 1233; at [40], Fakes C notes that "it is a common assumption that the mere presence or proximity of a tree is sufficient to conclude that the tree is the cause of the damage. It is not. It is necessary to find evidence to substantiate the assumption that the tree has caused the damage. In the case of alleged root damage, some excavation is usually required."
Though the applicants assumed the uplift was caused by the tree's roots, no such roots were visible. A causal link between the first examined area of artificial turf uplift and a root from the tree was a reasonable assumption due to the close proximity of the tree to the uplift and the absence of other likely sources. The various other uplift locations, however, were further from the tree and closer to the respondents' other Eucalyptus tree which was larger than the Blue Gum, and the Melaleuca tree. While I was satisfied that the uplift was caused by tree roots, the applicants' failure to expose the roots deprived the Court the opportunity to determine which tree was their source, which thus remained unknown.
Even if all turf uplift was sourced to roots of the tree, and the uplift was deemed a genuine risk of injury which engaged s 10(2)(b), in contemplating orders, the Court must consider a range of elements at s 12 of the Act.
If the applicants allege that the tree concerned is likely to cause injury to any person, s 12 (i) considers: 1. anything, other than the tree, that has contributed, or is contributing, to any such likelihood, including any act or omission by the applicant and the impact of any trees owned by the applicant, and 2. any steps taken by the applicant or the owner of the land on which the tree is situated to prevent any such injury.
The applicants reported no attempts to mitigate the root uplift "to prevent any such injury", yet to do so merely required the applicants to cut or shave relatively small, minor roots. Given that Mr Lees had previously replaced stormwater and sewer pipes, such maintenance would likely have been relatively easy, and it would have been reasonable.
Therefore, even if the roots belonged to the tree, I am not satisfied the areas of raised artificial grass represent sufficient genuine risk of injury to engage the jurisdiction as they are minor, isolated, may easily be highlighted to alert people to their presence, and could be readily removed by the applicants through reasonable maintenance. This element of the applicants' claim is thus dismissed.
As the jurisdictional test in s 10(2) is satisfied by likely future damage, and risk to persons from falling deadwood, s 9 of the Act empowers the Court to make any order it sees fit to remedy, restrain or prevent damage to property or injury to persons. If orders are to be made, the Court must consider other relevant discretionary matters in s 12 of the Act.

[11]

Orders

The Court orders that: 1. The respondents, at their expense, shall employ experienced Australian Qualification Framework (AQF) level 3 arborists, with all appropriate insurances (the arborists), to prune all deadwood larger than 15 mm at the branch collar from the area of the tree's canopy overhanging the applicants' land, and overhanging the respondents' land within 1 m of the common boundary. The arborists shall also selectively prune four live branches, as follows: 1. The two lowest branches arise at a junction about 2.2 m above ground level. When facing the tree from the applicants' land, the branch on the right-hand side which extends over the applicants' back yard shall be removed. 2. The branch on the left-hand side, the larger of the two, shall be retained, but one secondary branch about 45mm at the branch collar, growing towards the dwelling roof from the primary branch, shall be removed. 3. Two branches growing over the dwelling roof which emerge from the primary trunk at a height of about 5-5.3 m, and with collar sizes of about 110 and 65 mm respectively, shall be removed. 1. The works in Order 1 shall be completed within 60 days of the date of these orders. 2. In 2025 and in every subsequent year, during the month that the works in Order 1 were completed, the respondents, at their expense, shall employ arborists who meet the requirements of Order 1, to prune all deadwood larger than 15 mm at the branch collar from the area of the tree's canopy overhanging the applicants' land and overhanging the respondents' land within 1 m of the common boundary. 3. All pruning shall comply with AS4373:2007, Pruning of amenity trees, and the Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016 and shall be completed during reasonable daytime working hours. 4. The applicants shall provide all reasonable access to their property for undertaking the works upon receipt of at least 72 hours' notice from the respondents or the respondents' agent by email, advising the date and approximate start time. Copies of the arborists' qualifications and insurance Certificates of Currency shall be attached to each email.

[14]

The applicants claimed the tree presented a genuine risk of injury from overhanging deadwood falling and striking people and from the trip hazards caused by raised roots. They noted discouraging people from congregating under the tree's canopy and from walking near the trip hazards.
The tree appeared to be fairly healthy, and stable in the ground. There were no signs around the tree base, such as soil heaving and lifting, or cracks in the soil, that may alert an arborist to stability issues. The trunk looked sound, and attachments of live branches appeared strong and stable. Nonetheless, the high level of mid-sized deadwood in the canopy overhanging a considerable proportion of the yard would likely result in deadwood shedding sufficiently regularly to present a risk of injury. Though the risk is relatively low, the tree unreasonably impacted the applicants' use of their land, and I am satisfied that s 10(2)(b) is engaged.
Considering trip hazards in the artificial turf, I was unable to view roots as the turf was glued down and Ms Johnson was reticent to lift it. In Stevens v Russell [2016] NSWLEC 1233; at [40], Fakes C notes that "it is a common assumption that the mere presence or proximity of a tree is sufficient to conclude that the tree is the cause of the damage. It is not. It is necessary to find evidence to substantiate the assumption that the tree has caused the damage. In the case of alleged root damage, some excavation is usually required."
Though the applicants assumed the uplift was caused by the tree's roots, no such roots were visible. A causal link between the first examined area of artificial turf uplift and a root from the tree was a reasonable assumption due to the close proximity of the tree to the uplift and the absence of other likely sources. The various other uplift locations, however, were further from the tree and closer to the respondents' other Eucalyptus tree which was larger than the Blue Gum, and the Melaleuca tree. While I was satisfied that the uplift was caused by tree roots, the applicants' failure to expose the roots deprived the Court the opportunity to determine which tree was their source, which thus remained unknown.
Even if all turf uplift was sourced to roots of the tree, and the uplift was deemed a genuine risk of injury which engaged s 10(2)(b), in contemplating orders, the Court must consider a range of elements at s 12 of the Act.
If the applicants allege that the tree concerned is likely to cause injury to any person, s 12 (i) considers:

[23]

(1) The respondents, at their expense, shall employ experienced Australian Qualification Framework (AQF) level 3 arborists, with all appropriate insurances (the arborists), to prune all deadwood larger than 15 mm at the branch collar from the area of the tree's canopy overhanging the applicants' land, and overhanging the respondents' land within 1 m of the common boundary. The arborists shall also selectively prune four live branches, as follows:

(a) The two lowest branches arise at a junction about 2.2 m above ground level. When facing the tree from the applicants' land, the branch on the right-hand side which extends over the applicants' back yard shall be removed.

(b) The branch on the left-hand side, the larger of the two, shall be retained, but one secondary branch about 45mm at the branch collar, growing towards the dwelling roof from the primary branch, shall be removed.

(c) Two branches growing over the dwelling roof which emerge from the primary trunk at a height of about 5-5.3 m, and with collar sizes of about 110 and 65 mm respectively, shall be removed.

(2) The works in Order 1 shall be completed within 60 days of the date of these orders.

(3) In 2025 and in every subsequent year, during the month that the works in Order 1 were completed, the respondents, at their expense, shall employ arborists who meet the requirements of Order 1, to prune all deadwood larger than 15 mm at the branch collar from the area of the tree's canopy overhanging the applicants' land and overhanging the respondents' land within 1 m of the common boundary.

(4) All pruning shall comply with AS4373:2007, Pruning of amenity trees, and the Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016 and shall be completed during reasonable daytime working hours.

(5) The applicants shall provide all reasonable access to their property for undertaking the works upon receipt of at least 72 hours' notice from the respondents or the respondents' agent by email, advising the date and approximate start time. Copies of the arborists' qualifications and insurance Certificates of Currency shall be attached to each email.

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Judgment (23 paragraphs)

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Legislation Cited (2)

Cases Cited (6)