Lally v Grubisa

The hearings

1. Though the hearing was organised to initially commence on site on 24 March 2022, Ms Rose, the respondents' Solicitor, advised the Court that she was a COVID - 19 close contact and was required to self-isolate, and would therefore be unable to attend this hearing. As a result, I made directions at a case management conference of 22 March 2022, for me to inspect the site early morning on the 24 March 2022, independent of the parties, after which the hearing was held via Microsoft (MS) Teams. Mr Lally was joined by arborist, Murray Bolan, of Bolan's Tree Service during the later stages of this hearing, while Ms Rose was accompanied by Catriona Mackenzie, consultant arborist, of Urban Forestry Australia.
2. Ms Mackenzie provided a report for the respondents, dated 10 March 2022, within which she acknowledged and agreed to be bound by the Expert Witness Code of Conduct, contained in Sch 7 of the Uniform Civil Procedures Rules 2005. While I was impressed by the non-partisan approach evident in Ms Mackenzie's report, in the absence of visual access to assess the tree's existing root system, and thus the relative impact of various elements potentially contributing to wall and paving damage, she was unable to draw relevant conclusions from her observations.
3. Mr Lally's application included a letter dated 15 January 2022, from Mr Bolan, which I advised could not be considered an arborist report. It included no reference to the Expert Witness Code of Conduct, and most comments or opinions lacked substantiation. Mr Bolan may not have intended for this letter to be presented as evidence in this form, but I readily accepted Ms Rose's submission that any weight assigned to its contents should be significantly discounted. Having said this, I am aware that Mr Bolan is an AQF level 5 qualified arborist with extensive experience.
4. Mr Lally's application also included a letter from Edward Smithers of Welsford Smithers Landscape Contractors, dated 17 January 2022, which included an estimate of $75,000 as the cost of installing new driveway paving and retaining wall. It noted that, in the absence of removal of the tree prior to such works, they would be unable to provide the required seven-year warranty because of the likelihood of subsequent root damage to the new driveway and retaining wall. Though this letter also failed to reference the Expert Witness Code of Conduct, I considered these comments from Mr Smithers to be a reasonable assessment of this situation.
5. It became increasingly clear as proceedings progressed that lack of certainty as to the extent and location of roots, resulted in opinions largely based on speculation, and Ms Mackenzie repeatedly acknowledged this in her report. Based on this lack of exposed evidence of the causes of damage, Ms Rose cited Smith v Zhang [2011] NSWLEC 29 ('Smith'), where at [62], Craig J said "something more than a theoretical possibility is required in order to engage the power under the Trees (Disputes Between Neighbours) Act to make an order to remedy, restrain or prevent damage as a consequence of a tree".
6. Particularly because of the considerable cost estimated for repairs and rectification, and because it is a significant tree in the landscape, I deemed that an additional site inspection was required to facilitate a more informed basis for determining a long-term resolution of this dispute. In anticipation of this site inspection, I encouraged Mr Lally to dismantle relevant areas of the retaining wall and remove pavers from areas of significant surface distortion.
7. Once the retaining wall was partially dismantled and pavers excavated, par [62] of Smith became far less relevant.
8. In concluding at the MS Teams hearing of 24 March 2022, Ms Rose submitted that there were various factors contributing to wall and paving damage, and that the Court would not be satisfied that any one factor had caused these problems. Although I accept this, in Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 ('Robson') at [179]-[180], Preston CJ says that: "[179] Under either phrase describing the necessary nexus, the tree need not be "the" cause of the damage to property or likely injury to any person; it will be sufficient if the tree is "a" cause. Hence, for example, where two trees are growing, one on the applicant's land and one on the neighbour's land and the roots of each of the trees encroach into property on the applicant's land, such as drainage or sewer pipes, and cause damage, each of the trees can be said to have "caused" damage to the applicant's property, or to use the other phrase, damage to the applicant's property can be said to be "a consequence of" each of the trees. The fact that one could say that one tree caused damage is not inconsistent with another tree also having caused damage. [180] The conclusion that there can be contributing causes of the damage to property or likely injury to any person is corroborated by s 12(h) and (i) of the Trees (Disputes Between Neighbours) Act 2006 which requires the Court to consider, before determining an application, whether "anything, other than the tree, has contributed, or is contributing" to any such damage or likelihood of damage or such likelihood of injury to any person."
9. This issue is also addressed at [30] of Smith.
10. The onsite hearing was held on 28 April 2022, with all participants from the hearing of 24 March 2022 assembling on the applicant's driveway.
11. The tree is located in the south-western corner of the respondents' property. It is mature and noted by Ms Mackenzie as about 20 metres tall with a crown spread of 17-19 metres and trunk diameter at breast height (DBH) of 850mm. I estimated DBH as approximately 950mm, though I did not measure it. The tree appears to be in fair to good condition, vigorous and structurally stable.
12. A large proportion of the tree's upper canopy is overhanging the applicant's property and a common driveway, which is shared by residents of neighbouring properties.
13. The retaining wall is about 800mm tall, constructed from a single row of bricks, and noted in Ms Mackenzie's report as W2. It commences to the south of the tree and follows a roughly semi-circular path around the tree such that at any point this curved wall is about four metres from the tree's base. To the north-west of the tree, the wall changes direction and extends northward in a straight line parallel to the common boundary for about 11 metres, forming the front wall of a narrow garden bed.
14. In the respondents' property, behind a second single skin brick wall (W1) at the rear of this garden bed, is a closely planted row of Leyland Cypress trees forming a dense privacy screen, with a height of about six metres. I concur with Ms Mackenzie that W1 is not exhibiting damage as a result of these Cypress trees.
15. Viewed from the applicant's property, W2 is bowed and cracked in various places. With the benefit of selective dismantling where damage to W2 was most pronounced, large roots were clearly visible in close proximity, notwithstanding that there are other factors likely to have also contributed. Where pavers had been excavated from the most marked areas of surface uplift, a web of large roots was exposed. Both arborists agreed that the large roots exposed behind locations of primary wall damage, and by paving excavation, were from the Liquidambar tree, and I was also satisfied of this.

Jurisdictional requirements

1. With respect to s 7, 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.
2. Initially, the Court is required to ensure that the tree is "situated on adjoining land". While the parties share ownership of trees straddling a boundary, for the purposes of the Trees Act, the tree is situated on adjoining land if it is wholly or principally on that land (s 4(3)). The court has previously found, as in Dive v Lin & anor [2017] NSWLEC 1348, that to be principally situated on land, more than 50% of the area of the tree's stem, where it enters the ground, must be on that property.
3. Though Ms Rose initially suggested that ownership and financial responsibility for the tree should be shared between the parties, once this jurisdictional element under the Trees Act was discussed, and the requirement to procure a more precise survey of the tree base, as detailed in Awad v Hardie (No 2) [2010] NSWLEC 1258 ('Awad') was appreciated, this element was not pursued by the respondents.
4. Based on my site inspections, and examination of a 2017 survey excerpt provided in Ms Mackenzie's report which showed that approximately 60% of the tree's base is positioned on the respondents' land, I was satisfied that the tree is principally situated on adjoining land, such that the application for orders may proceed.
5. Next, the Court is obliged to consider a number of matters pursuant to s 10 of the Trees Act, which states: (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: 1. has caused, is causing, or is likely in the near future to cause, damage to the applicant's property, or 2. is likely to cause injury to any person.
6. If the Court's jurisdiction is engaged, s 9 enables the Court to make any such orders it thinks fit to remedy, restrain or prevent damage to property, or to prevent injury to any person. In order to determine, what, if any, orders should be made, the Court must consider the matters in s 12 of the Trees Act.
7. As required by s 10(1)(a), I am satisfied that there has been an attempt by the applicant to reach agreement with the owner of the land on which the tree is situated, based on a series of text messages the applicant sent to the respondents requesting tree removal. Mr Lally noted that the respondents text replies indicated that they did not want the tree removed, nor wish to meet the applicant to inspect and discuss their property damage.
8. Ms Rose contemplated disputing the satisfaction of this requirement but following a short discussion about the applicant providing copies of these texts as evidence, she conceded that this requirement under s 10(1)(a) was satisfied. As discussed by his Honour in Robson, the demands of this requirement under the Trees Act are also not as onerous as under some other jurisdictions.
9. The next major test that is posed, by s 10(2) of the Trees Act, is that the Court must be satisfied that the tree concerned has caused, is causing or is likely, in the near future, to cause damage to the applicant's property or is likely to cause injury to any person.
10. 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.

Retaining wall and paving damage

1. On site, damage to W2 as a result of the tree's roots was clearly evident. Both arborists agreed that the large roots exposed behind locations of primary wall damage, and by paving excavation, were from the Liquidambar tree, and I concur. Therefore, I am satisfied that the nexus between the tree and the wall damage and paver uplift has been established, and based on my inspections, and photographs submitted with the application, conclude that this damage is likely to have occurred during Mr Lally's occupation of the property. As a consequence, s 10(2) of the Trees Act is engaged.
2. In considering whether this damage can reasonably be rectified to provide a viable medium to long term solution, and a resolution of this dispute, there are many issues and constraints.
3. The tree is mature but is nonetheless still actively growing, with trunk, branches and roots continuing to increase in girth. It is also a species which generally, proportional to its size, has a large and extensive root network which is often associated with damage to proximal structures.
4. The respondents submitted that the single skin brick construction of W2, the questionable strength and adequacy of construction of its foundations, the absence of strengthening pillars along the wall's length, and roots of a Camellia tree at the northern end of the narrow garden bed, were also factors contributing to the wall damage.
5. While I accept this is likely, I am of the opinion that W2 would have remained largely intact and functional in the absence of pressure from the tree's roots, except in the immediate proximity of the aforementioned Camellia tree.
6. As noted by Ms Mackenzie, it is probable that roots have occupied the narrow northern extension of the irrigated garden bed behind W2, where aeration and moisture would provide good conditions for opportunistic root growth. Therefore, the large roots that have been exposed about 2 - 4 m beyond W2 after removal of pavers, and behind W2, are likely only some of the active roots that would need to be pruned and removed to provide space for excavation of foundations, and construction of a sufficiently robust wall.
7. Mr Bolan submitted, without contradiction from Ms MacKenzie, that considerable space would also be needed behind the wall to provide a buffer zone to accommodate root regrowth, to reduce the likelihood of future compressive pressures increasing behind the wall in the short to medium term. Cumulatively, this would equate to externsiveroot pruning, with a significant proportion of it occurring within the tree's Structural Root Zone (SRZ).
8. In exploring solutions, Ms Mackenzie submitted that the replacement wall could be relocated about a metre further from the tree and thus encroach on the paved area by about 10%.

Risk of Injury

1. Mr Lally claims that the tree is a safety hazard and a risk of injury based on more than one branch shedding event over the prior 18 months. He noted and provided a photograph depicting one occurrence in November 2020 where a "large bough fell from the tree in good weather", blocked access to the common driveway, and raised safety concerns.
2. Ms Mackenzie described this 2020 event as a "substantial branch failure to the south, which impacted upon two other limbs causing them also to fail". She added that "Some lower limbs to the west appear to be over-extended and tending to horizontal". Ms Mackenzie recommended reduction pruning of these branches.
3. Regardless of these incidents, I am satisfied that the tree currently presents a low risk of injury to the applicant and his family. However, for two main reasons, one cannot have the same confidence if a significant proportion of structural roots are removed.
4. The first and more obvious consideration is structural stability in the ground. In discussing stability following root severing, Ms MacKenzie submitted that the tree's main tension roots were most likely located on its northern side, and I would concur. I thus drew attention to the relatively close proximity of the respondents' swimming pool on this northern side, where these tension roots should likely be located had excavation for the pool not removed or compromised them.
5. It may be that sufficient time has elapsed since pool installation for the tree to have compensated for such root loss, but the pool's age was not clarified, and this impact is uncertain. This consideration is additional to those related to the extensive root pruning being contemplated in an effort to retain the tree whilst building a viable new wall.
6. The second risk related consideration arises from the form and characteristics of the tree, and the impact of the root pruning on tree function.
7. Based on the arboricultural expertise I bring to the Court, I am familiar with a range of different branch structures and forms amongst Liquidambar styraciflua specimens. Specimens that are excurrent with mainly ascending branches are generally structurally stable, notwithstanding a propensity of some individuals to suffer stem or branch failures as a result of included bark at junctions. At the other extreme are very broad domed trees with long horizontal and descending branches, which are very prone to branch failure, particularly in mid to latter stages of maturity.
8. While this specimen is at neither extreme, it displays marked characteristics of this latter form, as inferred by Ms Mackenzie's comments at [39]. As a consequence, I am concerned that should the tree be retained after being subject to the significant root pruning required to allow for wall and paving remediation, regardless of its propensity to produce compensatory root regrowth, there will likely be an extended period where the tree is stressed due to insufficient moisture and nutrient uptake, where it will thus have reduced sap flow, reduced branch flexibility, and increased likelihood of branch shedding.
9. Additionally, the inherent disequilibrium between root and canopy function is likely to result in dieback from the upper canopy and increased deadwood, and the altered wind patterns within the canopy and vulnerability of newly exposed branches resulting from the 2020 branch shedding, may also contribute to additional branch loss.
10. Though the applicant provided no arboricultural risk assessment to substantiate his position, and my assessment is that the current risk is low, I am also satisfied that the heavy root pruning required to retain the tree is likely to cause more branch shedding, and thus increased risk of injury.

Discretionary matters - s 12

1. In making an order, the Court considers relevant matters in s 12 of the Trees Act. 1. The base of the tree is growing across the common boundary, but it is principally situated on land in the respondents' property (s 12(a)). 2. Pruning or removal of the tree requires consent from Council under the Environmental Planning and Assessment Act 1979 (s 12(b)), and such permission for the removal has not been granted by Ku-ring-gai Council. 3. The tree contributes to protection from the sun, and from wind, and to the amenity of the respondents' property. It is also visible from neighbouring houses and thus has intrinsic value to public amenity. I am not satisfied that it is important for the respondents' privacy, however. The tree is deciduous, and as its canopy starts well above the ground, visual access past it is readily available. Specifically, there is a dense row of Cypress trees between the properties which provide considerable privacy (s 12(b3)(f)). 4. The tree's trunk and branches could be expected to provide shelter for local fauna and would make a minor to moderate contribution to local biodiversity (s 12(d)). 5. With respect to anything, other than the tree, that has contributed, or is contributing, to any such damage, or likelihood of damage, including any act or omission by the applicant (s 12(i)), Ms Rose noted that the tree was there first, prior to the wall, and this is relevant. In Black v Johnson (No 2) [2007] NSWLEC 513 ('Black'), 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.

Conclusion

1. Based on the evidence adduced, I have reached the following conclusions: 1. The tree is a major cause of the wall and paving damage which has occurred in the past and is currently occurring, and the jurisdiction of the Trees Act is thus engaged. 2. Though Liquidambar styraciflua are normally structurally stable in the ground, the extensive root pruning required to mitigate the current damage, and provide room to perhaps avoid future damage, is sufficiently extensive to make in-ground stability a genuine concern. 3. Previous major branch shedding, and the impact of proposed root pruning on tree function is likely to lead to increased risk resulting from additional branch shedding. 4. The financial costs involved to accommodate the engineering and construction of a 'beefed up' wall, required in an attempt to avoid future damage, would be considerable and an unreasonable impost for the applicant to cover. 5. It is also not reasonable for the location of W2 to be moved forward, against the wishes of the applicant, because it restricts access for cars and reduces the overall available paving area. 6. The tree provides amenity for the respondents, but I am not satisfied that it makes an important contribution to their privacy, which is primarily provided by a Leyland Cypress hedge. 7. The removal of the tree will thus be ordered, due to the high probability that its structural stability in the ground would otherwise be compromised during the process of rebuilding the retaining wall to current construction standards, and of sufficient strength to tolerate future pressures from root re-growth, and because of the increasing risk likely to result from this. 8. The cost of the removal shall be borne by the respondents, but considering the inadequacies of the wall, and the implications from Black when 'the tree was there first', the financial responsibility for wall and paving repair following tree removal, shall remain with the applicant. 9. Liquidambar trees are very prone to suckering from their roots if they are not poisoned prior to removal. Poisoning is best completed during the growing season, once the tree fully re-foliates after the current winter, and ideally at least 21 days prior to removal. As a result, for this tree removal, the orders will allow a longer duration than is common. 10. It is in the interest of both parties to ensure that poisoning is successful prior to removal.

Orders

1. The Court orders that: 1. By 31 October 2022, the tree shall be poisoned and removed at the respondents' expense, including grinding of the stump to a depth of at least 300mm. The respondents shall organise appropriate contractors. 2. All tree work is to be completed by qualified arborists (minimum AQF level 3) with all appropriate insurances. 3. All works must comply with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016. 4. The applicant shall provide access to his property, should it be required, for contractors to undertake these works, upon receipt of at least 48 hours written notice from the respondents, of the date and approximate time works are to commence. 5. All works shall occur during reasonable working hours.

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: 07 June 2022