Kennedy v Quinn

The Applicant made a reasonable effort

1. The Applicant has contacted the Respondents on several occasions. The Respondents expressed an unwillingness to negotiate around issues regarding 'boundary trees'. There is some friction between the parties. While the nature of their relationship, and circumstances leading to that, might not be relevant to other parts of this decision, I am satisfied that the Applicant reasonably expected that further discussion about the tree was unlikely. The Applicant has therefore made a reasonable effort to reach agreement with the Respondents (s 10(1)(a) of the Trees Act).

The tree is likely to cause injury

1. The tree is approximately 20 metres tall. Its dead crown spreads above both the Applicant's and Respondents' properties. Large dead branches are likely to fall within the near future, a period I regard as 12 months from the present, as per the principle in Yang v Scerri [2007] NSWLEC 592. On the Applicant's property, such branches will fall onto an area that is soon to be a driveway. On the Respondents' property, branches would fall onto the roof of the building close to this section of the boundary.
2. The Court's power to make orders is limited at s 10(2) of the Trees Act: 10 Matters of which Court must be satisfied before making an order (1) … (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. Mr Gowenlock's report does not include a risk assessment, but he allocated the tree a Safe Useful Life Expectancy (SULE) of 4a (dead tree to be removed in under 5 years) and recommended its removal.
4. Ms Mackenzie's report includes a risk assessment applying the International Society of Arboriculture's methodology. Unfortunately, the table of risk categorisation on p 11 of her report is incomplete and contains errors. Nevertheless, she found there was a low risk of the tree causing injury to people on the Applicant's property, even during construction periods. I do not accept her finding that the likelihood of large branch failure within the next 2 years is only 'possible', rather than 'probable'. The latter finding would result in a moderate risk, rather than low risk.
5. The tree has not caused damage to the Applicant's property. Given the existing nature of the Applicant's property beneath the tree's crown, it is unlikely to damage their property in the near future. If, as the Applicant submits, they will soon have construction workers on their property, the part of their property beneath the tree's crown is likely to be the site of frequent activity. With this in mind, I accept the Applicant's submission that falling tree branches are likely to cause injury.
6. Although branches are likely to damage the roof of the Respondents' dwelling, that is not part of the jurisdictional test at s 10(2)(a) of the Trees Act, but could be considered as one of the discretionary matters at s 12(j) if orders are to be made. I note here that the Respondents do not dispute the need for the tree to be removed.

Does the tree need to be removed?

1. As the Applicant submitted, removing this dead tree is now the most practical way to remove the risk. Partial removal, or other risk mitigation measures, would only cost more in the long term. Therefore, I shall order the tree's removal.

Who should pay?

1. The Applicant submitted that the cost of tree removal should be shared equally between the parties, as it overhangs, and creates a risk for, both properties. The Respondents submitted that the Applicant's actions have led to the tree's death and the need for its removal, so they should bear the full cost of this. The Court is required to consider "…anything, other than the tree, that has contributed, or is contributing, to any such likelihood [of injury], including any act or omission by the applicant and the impact of any trees owned by the applicant" (s 12(i)(i) of the Trees Act).
2. Prior to the Kennedys' purchase of their land, the tree, and other trees along this boundary, were healthy, as seen in aerial images. After the Kennedys' contractors removed an adjacent tree (that also appears to have been principally located on the Quinns' land), the tree's crown began declining and it soon died. Ms Mackenzie noted drill holes in the stump of the removed tree. She concluded that it had been poisoned at the time of its removal, and that sufficient quantity of herbicide travelled into the subject tree via grafted roots to kill it. Mr Gowenlock did not comment on the cause of the tree's death. Mr Kennedy submitted that other factors might equally have caused the tree's death: heavy rainfall and the removal of an old building on their land beneath the tree's crown, allowing waterlogging in the tree's root zone; or the effects of materials in the ground beneath the demolished building, which might once have been used as stables. He has provided no evidence to support this.
3. I find Ms Mackenzie's evidence and reasoning more compelling. I find that herbicide applied by the Kennedys' contractors most likely led to the tree's death. If I am wrong on that, I note that the only recent changes around the tree have occurred on the Applicant's land. The Quinns pointed out that no tree protection measures were in place during recent site works. It is possible that tree roots were damaged during works, or that changes generally within the tree's root zone led to its decline. On the other hand, nothing has changed recently on the Quinns' property near the tree.
4. Based on this, I am satisfied that it would be reasonable for the Applicant to pay the cost of removing the tree. In Joaquim v Adamson [2009] NSWLEC 1312 at [112], Moore SC (as his Honour then was) and Fakes AC found: "Because we have concluded that the actions of the applicants have required removal of the dying portion of the Hills Fig tree and, as a necessary consequence, removal of the remaining portion of the Hills Fig tree, the total cost of removal of the Hills Fig tree is to be borne by the applicants after the presentation to the respondents of a receipted account for the completion of the work of removal of this tree…"
5. Other applicants have also been ordered to pay for tree removal after being found to have caused tree death or decline: see Freeman v Dillon [2012] NSWLEC 1057 and Horn v Latter [2007] NSWLEC 744.
6. The Respondents submitted that they would prefer the Applicant to arrange for the works if the cost of the works fall to the Applicant.

Other matters

1. I have considered all other relevant matters at s 12 of the Trees Act and find it appropriate to order the tree's removal at the Applicant's cost.
2. The Respondents raised their concerns that removing the tree's stump so close to their building might affect its footings. They would like a geotechnical assessment of this issue prior to tree removal. Mr Kennedy expressed a view that such an assessment would be prudent. This is therefore included in the orders.

Orders

1. Based on the foregoing, the Court orders: 1. The application is granted to the extent of the following orders. 2. The Applicant is to obtain, at his expense, a report from a qualified geotechnical engineer that: assesses the likely impacts of tree removal on footings of the adjacent building belonging to the Respondents; and makes any recommendations necessary to avoid or minimise any impacts. The Applicant is to provide a copy of the report to the Respondents within 30 days of the date of these orders. 3. The Applicant is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances to remove the tree to ground level. The works are to be done in accordance with the Safe Work Australia (2016) 'Guide to managing risks of tree trimming and removal work'. The tree's stump and roots on the Applicant's land may be ground out. The tree's stump and roots on the Respondents' land are not to be ground out, unless the geotechnical report in (2) advises that this is acceptable. Tree removal is to be completed within 60 days of the date of these orders. Any other recommendations of the geotechnical report in (2) to follow the tree's removal are to be completed within 90 days of the date of these orders. 4. At least 14 days before the tree is removed, the Applicant is to provide the Respondents with a copy of the insurance certificates for the arborist engaged to remove the tree. 5. The Applicant is to give the Respondents at least 7 days notice of the tree removal works. 6. The Respondents are to allow reasonable access for the works during reasonable hours of the day. D Galwey Acting Commissioner of the Court

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: 08 February 2023