Jones v Morgan and King

APPLICANT Mr D Bell (solicitor) SOLICITOR LEGAL REPRESENTATIVES: Advantage Lawyers

RESPONDENT Mr G Morgan and Ms J King (litigants in person)

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by Mr Jones of 56 Marine Parade, Nords Wharf against the owners of two trees growing at 54 Marine Parade. The owners of that property are Mr Morgan and Mrs King. The applicant was represented by Mr Bell, solicitor.

2 The applicant is seeking the removal of the trees as he contends that they have both caused damage to his property and could cause injury to persons. Specifically, the damage said to have been caused, to the applicant's property, by falling branches is damage to guttering, the wall of the house, ceramic floor tiles and a vehicle. The applicant contends that roots from one of the trees are damaging a retaining wall and concrete slab and could damage the house. The applicant's concerns about injury arise from his wife being struck by a piece of deadwood as she was hanging out washing and the failure of a large branch from one of the trees onto the respondents' property during a storm in June 2007 (the storm that grounded the ship the 'Pasha Bulker').

3 Under s 10(2) of the Act, the Court must not make an order unless it is satisfied that the trees have caused, are causing, or are likely in the near future to cause, damage to the applicant's property or are a risk of injury to any person. In Yang v Scerri [2007] NSWLEC 592, a rule of thumb, which I consider is appropriate here, puts the near future as being a period of 12 months from the date of the determination. Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of whether the damage or risk is sufficiently serious to warrant the intervention of the Court, and if so what should be ordered and who should pay. These tests must be applied to each tree.

4 Tree 1 is a mature Eucalyptus robusta (Swamp Mahogany), Tree 2 is a mature Eucalyptus tereticornis (Forest Red Gum). The trees are highly likely to be remnants of the original forest. According to the respondents, the trees have been on the property since their family purchased it in the 1930s. Both trees are growing in an open grassed yard on the eastern or road side of the dwelling at 52 Marine Parade. The western side of dwellings on this side of Marine Parade have lake-side frontages.

5 Both trees have been the subject of inspections and or reports by arborists. Mr Kingdom was engaged by the applicant to inspect and report on the trees in November 2006 and again in December 2009. Mr Khemananta, Tree Management Officer from Lake Macquarie City Council, inspected the trees in 2005 and again in 2007 and recorded his findings on both occasions. Mr Herron, an arborist engaged by the respondents to carry out works on the trees, gave verbal advice to the respondents in 2006, 2007 and 2009. The written reports were tendered in evidence.

6 I inspected both trees from the ground and used binoculars to view the upper portions of the canopy. I looked specifically at issues raised in Mr Kingdom's reports as these form the basis of many of the applicant's contentions.

7 Tree 1 is the most easterly of the two trees and is approximately 3m to the north of the masonry dividing/retaining wall between the parties' properties. It is in average to good health with approximately 5% dead wood. The tree has been lopped many years ago at about 4m and than again at about 8m. The main trunk bifurcates at about 4m and each stem further divides. The southern bifurcation, that closest to the applicant's property, has an old wound, described by Mr Kingdom as a lightning strike. The cause is unknown but the wound extends down the stem for several metres and there is evidence of termite tracking on the dead timber. The adjoining secondary stem to the north is dead. There is some detached dead wood caught in the canopy.

8 The majority of the canopy of the tree arises from the northern bifurcation and overhangs the respondents' property. About 5% of the tree overhangs the applicant's property. One branch overhangs the north-eastern corner of the house and another section overhangs a lawn area containing a clothesline.

9 In his 2006 report, Mr Kingdom states: There has been recent work carried out on this tree where bracket fungus fruiting bodies have been removed from deadwood and it is clear and obvious that there is continuing bracket fungus activity in this tree. 10 I saw no evidence of fruiting bodies of decay fungi ('the bracket fungus") and no evidence of significant decay. If the fruiting bodies were on dead wood, this is normal. I did see where an arboreal termite nest had been removed from a section of the northern bifurcation. Mr Kingdom's report also describes the raised root-plate and suggests that the tree may be prone to whole tree failure. In my opinion, the mounding is suggestive of the distribution of structural roots. There were no signs consistent with the likelihood of whole tree failure. 11 The applicant tendered photographs of branches, allegedly from tree 1, on a car, the lawn, the roof and on the paved access to the house. Another photograph shows a small dent in a section of the guttering on the north-eastern part of the roof. Most of the branches are dead however, others have leaves attached. The car in the photograph has since been sold so there was no opportunity to inspect any damage. I was shown a chip in a ceramic tile (chip dimensions about 12mm x 6mm) as well as some loosened grout, all said to have been caused by a branch falling from Tree 1. It is also alleged that a branch damaged a section of the north-eastern portion of the wall of the house, however, this has been repaired and is not pressed by the applicant.

12 I was shown a fine crack between a tiled section of concrete slab and the part of the slab on which an air-conditioning unit was located. Adjacent to this is a fine crack between the block retaining wall and the tiled pathway. The applicant contends that roots from tree 2 have lifted the retaining wall and the cracks are a result of this. It was noted that the retaining wall was not cracked and the rise in relation to the tiles was about 10mm adjacent to one tile in the very far north-eastern corner of the paved pathway.

13 The applicant was unable to show me any roots but my attention was drawn to Mr Kingdom's 2009 report where he states that this damage can be attributed to tree 2. Nowhere in Mr Kingdom's report does he state how he determined this, there is no indication that any excavation occurred, as such, this is Mr Kingdom's unsubstantiated opinion and is of little value

14 Tree 2 is a mature Forest Red Gum in average to good health and has less than 5% dead wood in its canopy. In both Mr Kingdom's reports he is adamant that this tree should be removed. This appears to be on the basis of overhanging branches, the alleged damage to paving and the structure of the tree.

15 In his 2006 report he states that 50% of the canopy was overhanging the applicant's house. At the on-site hearing, I estimated the overhang to be about 30%. Mr Kingdom refers to inclusions between branches. On my view, this is not correct, but if there are, they are not obvious and very minor and do not pose a high risk of failure.

16 During the storm that grounded the Pasha Bulker, a large branch from Tree 1 failed onto the respondents' property. A photograph of this was tendered by the applicant. Apart from that branch, there are no signs in the tree that anything other than dead wood has fallen from the tree. 17 Mr Kowaleczko, a neighbour from 50 Marine Parade, produced an averdavit outlining his concerns that the trees may fail onto his property or cause injury to any tenant occupying the respondents' property. This material was allowed, through Mr Bell, despite being after the date given in the Court's directions for the filing of such material. Whilst it supports the application to remove the trees, it is afforded little weight. Mr Kowaleczko is entitled to make his own application under the Act. 18 Apart from s 10(2), the Court must also consider a number of matters under s 12 of the Act. The relevant clauses in this case are: (a) The trees are wholly located on the respondents' property. (d) The trees do make a contribution to biodiversity and to the local ecosystem as they are remnants and their flowering habits attract a number of birds. (e) The trees contribute to the scenic value of the land on which they are growing and to the locality, although beauty is clearly in the eye of the beholder as Mr Bell, in final submissions, stated that the trees are an eyesore. He considers the proximity of a reserve some three houses to the south to outweigh the scenic value of the trees subject to this application. (f) The trees have intrinsic value to public amenity as they can readily be seen from the surrounding area and are part of the landscape character. (h)&(i) Actions by the parties. After receiving requests from the applicant in 2005, the respondents undertook some pruning of the tree, including the removal of a branch from tree2 overhanging the applicant's property in order to facilitate building works on that property. After receiving more requests from the applicant, the respondents sought permission from Lake Macquarie City Council to prune the trees. The trees were inspected by Mr Khemananta, council's tree management officer on 1 December 2005. His assessment (tendered by the respondents) shows the trees to be healthy and stable and pruning of some dead wood and thinning was permitted. This work was carried out in 2006. After ongoing complaints from Mr Jones, in 2007, the respondents sought permission from council to remove the trees. This was refused by council on the grounds that the trees appeared to be sound and healthy. The applicant has set up another clothesline on the western/lakeside area of their property but state that this is not always convenient. (j) Other matters. It was suggested by one of the respondents that some of the fallout of small live branches from the tree could be due to cockatoo damage. This is possible and the damage to the bases of some of the branches in the photographs, particularly the branches on the car, are consistent with cockatoo damage but this cannot be confirmed. 19 Returning to s 10(2) and the two trees. There is some evidence that tree 1 has caused some damage to the gutter of the house, to a tile and a dead branch did hit Mrs Jones. The alleged damage to the wall and the car could not be determined. The tree contains some dead wood that could fall and cause injury to persons, including anyone on the respondents' property. That said, three of the tests under s 10(2) have been satisfied with respect to tree 1 and thus the jurisdiction is enlivened and the Court may make an order. The main risk arises from the falling of dead wood, and given the limited overhang, even from a previously lopped tree, there is no basis on which the Court should order the removal of the tree. 20 With respect to tree 2, the connection between the small cracks in the concrete pavement and the roots of tree 2 is not proven on the balance of probability. It is not clear that this tree has caused any damage to the applicant's property however, the presence of dead wood and the potential target area is such that the tree, through the falling of that dead wood, could, in the near future, cause damage to property or be a risk of injury to persons, including those on the respondents' property. Therefore, the jurisdiction is enlivened with respect to this tree. As for tree 1, there is no evidence to order the removal o f tree 2. 21 The Orders of the Court are: 1. The application to remove the trees is refused. 2. The respondents are to engage and pay for an AQF level 3 arborist to remove all dead wood down to 30mm in diameter and all detached branches, from both trees. 3. This work is to be carried out in accordance with AS4373:2007 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry . 4. The applicants are to provide all reasonable access, if required, for the safe and efficient carrying out of these orders. 5. The respondents are to give the applicants and any tenants at least 3 working days notice of these works. 6. This work is to be completed within 40 days of the date of these orders. 7. The removal of dead wood is to be carried out every 2 years within 14 days either side of the anniversary of the first pruning. Orders 2, 3, 4 and 5 apply.

J Fakes Commissioner of the Court

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