Langtip v Granstrom

CASES CITED: Adamski v Betty [2007] NSWLEC 200

APPLICANT In person LEGAL REPRESENTATIVES: RESPONDENT In person

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

21175 of 2007 Elizabeth Langtip v Lillita Granstrom

1 COMMISSIONERS: This is an application made pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by Mrs Elizabeth Langtip of 11 Bellombi Street Campsie concerning one Bunya pine tree (Bunya Bunya, Araucaria bidwillii) located in the backyard of 9 Bellombi Street Campsie owned by Mrs Lillita Granstrom.

2 The extemporaneous decision was given on site on 18 January 2008 and the judgment reflects the findings and the background documentation provided as part of the proceedings.

The evidence - Langtip 3 Mrs Langtip's application is to seek orders for the removal of the tree, or if removal is not ordered, then timely and effective removal of fruits cones when they appear.

4 Mrs Langtip provided an arborist's report by Mr Lawrie Smith, dated 17 June 2005 and addressed to Canterbury Council. That report recommends the risk presented by this tree should be significantly reduced by an annual inspection of the canopy for cones and the physical removal of any cones present.

5 Mrs Langtip's concerns as stated in her application regarding the tree and falling Bunya pine cones are: The backyard of my property is off limits for up to three or four months each year when the cones are present. Also it may be longer because sometimes you can't be sure whether they have all come down …..

With the cones mass and the randomness of which they fall and the height from which they fall, a person struck by one would be killed or maimed or otherwise seriously injured.

The tree also produces extremely sharp needles that draw blood if touched. 6 Compensation is also sought for damage previously caused to the roof of the shed in the rear yard by fallen cones. Mrs Langtip claims $2500 in compensation to replace the roof on the shed at the rear of her property. We note however that the quote from B &D Duval Pty Limited is for $2200. Unspecified compensation is also for loss of quiet enjoyment of her property and for stress and anxiety.

7 Mrs Langtip advised that the roof of the shed located in her backyard had been damaged by Bunya pine cones in the past and has been replaced by her insurer. She includes documents from her insurer, Western QBE Insurance in a later claim when a fallen cone damaged the roof of the shed/granny flat in the backyard on 8 February 2005. The assessor who attended the site described the "nuts" as being of football size and weighing 10 kg each. The claim in 2005 was denied. 8 The documents provided by Mrs Langtip indicate a long running dispute over the tree including a prolonged effort to have the tree managed through Canterbury City Council and representations to her local Member of Parliament.

The evidence - Granstrom 9 Mrs Granstrom opposes removal of the tree. She recommends that people stay clear of the tree during the season when cones might fall. She disputes the amount of damage caused by falling cones and the size of those cones. She provides a letter from a member of her family stating that for many years they had used the area under the tree during Christmas holidays without fear of falling cones.

10 Mrs Granstrom makes the following statements in her submissions regarding the existence of cones on the tree and the times they fall: "Some years there are no cones (only catkins on tips of the branches) others there are several. This year the tree was very productive. There may be none for a couple of years in the future. They were also falling a month later than usual." ……… "The cones started falling from Wednesday, 2nd February. The last 3 fell on Sunday 20th February. Usually they fall during January. The more ripe ones shatter if they hit a branch while falling." (Letter to Canterbury Council dated 23 May 2005.)

"Only every 2 - 3 years. There were none this year. Sometimes there are only 3 - 5 but last year there were many over several weeks." (Letter to Environmental Defenders Office dated 4th May 2006.)

"The fruiting only occurs every 2 - 3 years. Cones dropping approximately over 3 week period (usually after dark) in February. Years ago it was during January. I should know. Been aware of it for many years. Be aware - don't stand under the tree at that time." (Letter to Land & Environment Court, undated, filed by the Court 4 January 2008.)

The tree and site observations 11 We have examined the Bunya pine from the ground on both properties, and have looked at the matters of concern and evidence of damage pointed out by each of the parties. The tree is an attractive specimen, visible from surrounding streets and nearby public land along the Cooks River. The distinctive dark colour and round-topped conical canopy make it a minor local landmark. The tree is also a dominant landscape element in Mrs Granstrom's backyard.

12 The tree is in the order of 18 m in height, with a broad conical canopy. The lower branches are approximately 6m in length, giving the tree a regular canopy spread of approximately 12 m. The canopy overhangs Mrs Langtip's property by approximately 3 m. The tree appears to be in a mature, but not over mature state and in good condition. We find no reason to doubt Mrs Granstrom's statement that the Bunya pine has been on her property for over 40 years. Long branches with tufts of foliage at the ends are retained down to approximately 2 m above the ground. This specimen is entirely clear of foliage between the outer tufts and the trunk, for the whole height of the trunk except the top few metres. Even in the top of the crown, this tree appears to have less dense foliage than many other individuals of the species.

13 During the on-site hearing on 18 January we observed eight cones near the top of the tree and accept that there may more present. We also observed three fallen branches each having a length of approximately 6 m and diameter of 60 - 100 mm at their previous point of attachment. Mrs Granstrom agreed that one branch had probably fallen each year since 2005. We also observed one branch stub at about 8 m height on the trunk. It was unclear whether any of the branches had been broken off by a falling cone and if removal of cones may also reduce the chance of branch failure. Findings - tree removal/cone removal 14 In terms of tree removal, we are not satisfied that the tree, per se, has caused, is causing, or is likely in the near future to cause, damage to the applicants property, or (s 10(2)(a)) is likely to cause injury to any person (s 10(2)(b)) so that the tree should be removed. It is healthy, shows no signs of decline and contributes positively to the visual amenity of the area. Any branch drop is infrequent and of a relatively small size.

15 We note that Canterbury Council has previously given consent for the tree to be removed. We advise that the orders of the Court apply so long as the tree remains, but in no way stop Mrs Granstrom from removing the tree at any time should she decide to do so with the consent of Canterbury Council.

16 The issue of cone removal is however a different matter. Because of the conflicting evidence of Mrs Langtip and Mrs Granstrom and the need to have a greater understanding of the fruiting of Bunya pines, we have referred to the journal article, Araucaria Bidwilli-Hook-Bunya-Bunya Pine-Management in urban environments (The Australia Arbor Age, Vol 6, No. 1, June/July 2001) by Mr Danny Draper. This article addresses the management of Bunya pine cones and relevantly states the following in relation to Grafton Council: Until recently Grafton Council was harvesting the fruit annually but reduced this to every 18 months in the expectation that the stimulus of harvesting may have been promoting the numbers of cones produced, thus expecting a reduction in volume. However, the numbers of fruit produced did not increase or decrease but the interval between maintenance visitations lengthened saving on maintenance costs without compromising safety. 17 Table 1.0 of the article shows the number of fruits harvested from Bunya pines in five locations in the Ku-ring-gai Council area from the summers of 1992/93 to 2000/01. We note that there appears to be no consistency in the number of cones produced each year or any regular cycle of cone production. Table 1.0 does not provide any support for the contention that Bunya pines produce only biennial or triennial crops of cones. 18 Draper's article states in relation to cone harvesting by Ku-ring-gai Council: The fruit were being harvested in December but some undersized and immature fruit remained undetected, so the harvesting now commences in January when the fruit are larger and easier to locate. 19 The article also recognises that Bunya pine cones may fall up to 2 m beyond the drip line of the tree.

20 The Court has previously addressed the issue of the management of Bunya pine cones in Ku-ring-gai. (Adamski v Betty [2007] NSWLEC 200). The Adamski's held similar concerns to those expressed by Mrs Langtip. The evidence of Mr Adaminski's witnesses indicated that in excess of 30 cones of varying ages and sizes (ranging up to fully mature cones) were removed or recovered during December 2006 to February 2007 from the site containing the tree and that some 30 additional cones fell on adjoining property during that period.

21 Adamski v Betty also referred to an article by Mr John Hough, a senior forest technician in the Queensland Forestry Research Institute at Gympie where it states that the number of mature cones found in the top of a Bunya pine could be some 20 or more from a single tree. 22 In Adamski v Betty, the Court ultimately found that the removal of the tree was not warranted but that annual cone removal activities at a period between mid-October and mid- December should be undertaken each year.

23 From the sources mentioned above, we are satisfied that Bunya pines do not present any overly reliable pattern of cone production and consequently cone fall. Bunya pines generally can cones every year but may produce greater quantities every 2, 3 or more years. Harvesting of cones des not promote the production of cones, cones may fall beyond the outer branches of a tree and that any cone harvesting should be generally undertaken from December to January in order to more easily find and remove the cones. Consequently, Bunya pines, particularly in a residential environment, require regular inspections for cones every year and removal of any cones. While there can be no guarantee that cone fall will occur only within December to February, we are satisfied that the literature and the specific evidence from the site supports cone harvesting from December to January 24 We note the discrepancy in the timing of cone fall stated by the parties but consider both accounts may be reasonable based on the unreliable pattern of cone production. Cones may fall in January some years and February in other years but this simply means that both months may represent a high risk for cone fall. Accepting that cone fall has occurred in the past and taking into account that cones may weigh between 10 - 12 kg each and fall from a height of 18 m and potentially into Mrs Langtip's property, we are satisfied that the cone fall has caused, is causing, and is likely in the near future to cause, damage to the applicants property, and (s 10(2)(a)) is likely to cause injury to any person (s 10(2)(b)).

25 Given our observation that Mrs Granstrom's tree has a form that allows it to be easily climbed and the cones to be more easily seen, reached and removed than in many other Bunya specimens, we are of the opinion that cone removal is a viable option for management of Mrs Granstrom's tree. The tree should remain so long as the owner wishes to keep it and carries out an effective programme for removal of cones. The particular requirements for cone removal are set out on the orders below. 26 We acknowledge that the uncertainty of cone drop is a valid concern for Mrs Langtip and the suggestion by Mrs Granstrom that people stay clear of the tree during the season when cones might fall is simply unreasonable. We are satisfied that the regular removal of cones adequately addresses the requirements of s 10(2)(b) however the potential injury to any person is potentially high if the cone removal regime is not followed. The removal of the tree would be a viable alternative if the regular removal of cones were not undertaken in the manner specified in the orders.

27 We draw the attention of the parties to the fact that the Act provides for criminal penalties for the failure to carry out orders made pursuant to its terms; and that options for enforcement are also available in Class 4 proceedings in the Court to require the carrying out of the activities if they are not otherwise carried out. Findings - compensation 28 The claims by Mrs Langtip for loss of quiet enjoyment of her property and for stress and anxiety are outside the jurisdiction to make orders in that compensation is limited to compensation for damage to property (cl 9(2)(1)).

29 In relation to the claim for compensation for damage previously caused to the roof of the shed in the rear yard by fallen cones, we observed a dent approximately 300 mm wide and 100 mm deep on the edge of the metal roof of Mrs Langtip's shed. We accept this is likely to be damage from a falling Bunya pine cone.

30 However, due to the age of the shed and the generally dilapidated condition of the roofing we find that there should be no order for compensation in this case, as it would appear that the roofing material has reached or is close to it's useful life. Consequently the depreciated value of the roofing material would be negligible. Any ongoing damage to the shed is unlikely given the orders for the regular removal of cones from the tree. Orders 31 The Orders of the Court are:

A. The application is upheld, in part. B. The respondent is to carry out the following work: 1) As soon as practicable but no later than 29 February 2008 the upper crown of the Bunya pine tree shall be climbed or physically accessed by other means, and all cones shall be removed from the tree; 2) During the first two weeks of December each year the upper crown of the Bunya pine tree shall be climbed or physically accessed by other means, and all cones shall be removed from the tree; 3) The arborist conducting the cone removal operations in 1) and 2) above is authorised to prune such upper branches of the Bunya Pine as are reasonably necessary to provide access for cone removal, without destroying the present or future, single leader form of the tree; 4) All debris falling onto Mrs Langtip's property from the cone removal operation shall be returned by the arborist to Mrs Granstrom's property; 5) The cone removal shall be carried out by a qualified arborist with AQF Level 3 qualifications and suitable insurances; 6) Within one week after each cone removal operation, the arborist shall provide a statement describing the work carried out including the number and approximate sizes of the cones removed to Mrs Granstrom and Mrs Langtip; 7) All work required in 1) to 6) above shall be carried out at full cost to Mrs Granstrom, the owner of the land where the Bunya pine tree is growing; 8) Mrs Langtip shall provide access on reasonable notice and at reasonable times for the cone removal operations to be carried out; 9) If Mrs Langtip observes any cone after the cone removal operation and before the end of September in any year, she may advise Mrs Granstrom by way of a registered mail delivered to her address of such. Mrs Granstrom shall have the tree inspected and any cones removed in accordance with 4) to 8) above within 14 days of delivery of the advice, unless the advice is delivered after 15 October of any year. ________ G T Brown Commissioner of the Court

      Peter Thyer
      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.