Le Bron v Chidiac

The hearing

1. Dr Chidiac was self-represented, and the hearing commenced with an inspection of the trees in his rear yard. Ms Le Bron was present, along with her Solicitor, Mr Patrick Holland, of McCullough Robertson Lawyers, and Mr McArdle. The Gum tree is a Eucalyptus saligna (Sydney Blue Gum) (the tree). It is located about three metres from Dr Chidiac's rear boundary. In Tree Survey Table 1 of his report, Mr McArdle notes tree height as 18 metres, canopy spread of about 20 metres, and trunk diameter at breast height (DBH) in excess of one metre. It has a stout form, the appearance of which is accentuated by the presence of strong lateral branches emanating from its lower trunk. In general, the trunks and branches appear structurally sound, notwithstanding that a large low branch had broken from the tree some years earlier and caused extensive damage to Dr Chidiac's lattice screen. Particularly considering the tree has incurred minimal pruning whilst owned by Dr Chidiac, there are few indications of poorly attached, torn, or broken live branches that would justify concern about tree safety. Based on the arboricultural expertise I bring to the Court, my estimate of tree age is 55 to 75 years.
2. Dr Chidiac, both in his letter, and orally, expressed surprise that Ms Le Bron had received Council permission "to install a swimming pool on her side of the dividing fence, right over the root zone of both trees", "which would compromise tree health." I am also surprised by this, in that excavation for the pool represents a major incursion into the Tree Protection Zone (TPZ), which appears to breach compliance with AS 4970-2009 Protection of Trees on Development sites.
3. In any case, whether by good management, or more likely good luck with respect to the opportunistic nature of its root system distribution, the tree remains very healthy, with canopy foliage density exceeding normal for its age class.
4. Dr Chidiac also noted surprise when summonsed to appear in this matter, because, at a meeting with Ms Le Bron, after receipt of her August 2018 letter, he had sympathised with her situation, and 'happily' agreed to apply for removal of both trees. He submitted this to Canada Bay Council in September, 2018, as part of a Pre-Development Application (DA) for erection of a building in his rear yard. No determination of this DA had been made as at the hearing date.
5. Based on Mr McArdle's Tree Survey Table 1, height of the Cypress is shown as 8 metres, canopy spread as 6 metres, and trunk DBH of 28cm. Condition of the tree is described as poor, mature, leaning to the north, and physically damaged. It is assigned a low Retention Value.
6. The Cypress is growing very close to, if not partly over, the boundary. Dr Chidiac was of the belief that the Cypress was planted further away, and inferred that, along with the development of the two properties to his rear, the fence line may have been moved, and thus encroached on his land. No survey was provided, however, to support this position.
7. The Court moved next to the rear yard of the applicant's property, and minor damage to the shadecloth pool cover, apparently incurred when the Cypress branch tore, was brought to my attention. This was somewhat confusing as Ms Le Bron's application included, at Q 14, itemised claims for compensation for Pool Cover, Robotic Pool Cleaner and Pool Filter, totalling $6500, with the comment at Q 15 that "Proof of payment can be provided if necessary." In reality the pool cover remained intact and functional, the minor damage could be deemed no more than 'normal wear and tear', and any recourse for the pool cleaner or filter was not pursued. These can be viewed, therefore, as ambit claims.
8. I was shown the fence damage allegedly caused by the Cypress, at the corner where Ms Le Bron's, her southern side neighbour's, and Dr Chidiac's property boundaries meet. Attention was next drawn to the overhanging canopy of the Blue Gum, and to Ms Le Bron's fear of injury from dead branches which fall from it. She said that her young teenage children, and their guests, do not feel safe playing in the pool, and during submissions, Ms Le Bron exhibited many photos of the children holding dead sticks that had fallen. Some of these were taller than the children, and around 30mm diameter where they had broken away. Mention was also made of the fear their daughter felt in her upstairs bedroom, when heavy wind blew, notwithstanding that it is located about ten metres clear of the tree canopy.
9. Damage and annoyance from leaves and small refuse was attributed to both trees, in relation to the pool cover, cleaning machine, and filter, and with respect to leaves filling house gutters and blocking downpipes. This was also said to have caused water incursion and staining to the ceiling of the al-fresco dining area at the rear of the house.

Jurisdictional requirements - Part 2

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. The Court is obliged to consider a number of matters pursuant to s 10 of the Act.
3. As required by s 10(1), 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. Along with the correspondence supplied by both parties, the application notes a face to face conversation on 24 June 2018, and the subsequent meeting on the 26 August, 2018.
4. The next major test that is posed, by s 10(2) of the 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.

Cypress tree

1. As it is quite straightforward, I will address the Cypress initially. Though this tree is in fact in reasonable condition, and, notwithstanding the branch that partially tore off, does not appear to be structurally compromised, it is growing very close to the boundary.
2. There is no evidence to support Mr McArdle's claim, on page three of his report, of "dehydration of 30%", nor was methodology for reaching this conclusion provided. He verbally clarified this to mean a 30% reduction in canopy density, but this finding remains speculative.
3. I am satisfied, however, that the trunk, and perhaps also the base of the tree, are exerting pressure and damaging Ms Le Bron's rear fence, and are likely to cause further damage in the near future. Based on Yang v Scerri [2007] NSWLEC 592, as a rule of thumb, the near future is deemed to be 12 months.
4. Given the proximity to the fence, neither trunk, nor root pruning are appropriate options and the latter would likely compromise tree stability in the ground. Considering also that the tree is relatively early in its life cycle, and that its trunk is likely to thicken significantly over time, I am left with little option but to order removal, to be paid for by the respondent.

Sydney Blue Gum

1. The Sydney Blue Gum is long established, appears to be structurally sound and well anchored in the ground, and is benefitting from a relatively undisturbed root zone under the tree canopy. The tree provides significant environmental services to the local neighbourhood, and any intervention must be prudent, and necessary.
2. I am satisfied, based on viewing the tree, and on the photos provided, that there is risk of injury from falling dead branches, particularly in the area of the pool where the canopy overhangs, as occupancy of the area is likely for sustained periods. Therefore pruning of deadwood is appropriate, and will be ordered.
3. I am not convinced, however, that an order for pruning live branches is either appropriate or necessary. In his Tree Survey Table 1, Mr McArdle describes this tree as semi-mature, in moderate condition with a High Retention Value, but in para one of his Discussion on page 12, describes debris falling from the tree as consistent with a large tree in decline. In para two, he notes that the Tree Risk Assessment Rating for the tree is "high and highly likely to fail."
4. The extremely conservative risk matrix used is inconsistent with either of the internationally accepted risk assessment methods, TRAQ and QTRA. The method used by Mr McArdle lacks or omits the final level of assessment, which considers the consequences of impact of a branch or tree. The application of either TRAQ or QTRA to this situation would correctly result in a conclusion of low, or perhaps, in the pool area in summer, moderate risk. Therefore, the danger is being exaggerated with the method applied by Mr McArdle. In reality, the tree is mature, in good health and sound structural condition, and exhibits no obvious evidence of decline.
5. The branches which Mr McArdle identified in his report, and brought to my attention on site, as dehydrated and decayed, again without supporting evidence, do not in fact appear faulty or compromised. One branch junction did exhibit kino exudation, and minor borer damage, but this is part of the trees natural processes, and not a cause for marked concern. A large branch he deemed as included and in need of removal, did display a tight acute angle at its point of attachment, but was clearly not included or faulty.
6. Mr McArdle's Pruning Specifications on page 13 do not inspire confidence. As well as the two specific branches addressed above, his third specification to "Prune dehydrated wood (which he clarified to mean deadwood) down to 40 mm diameter and diseased wood up to 50mm without a photo", would result in most of the dead branches that currently drop from the tree remaining unpruned. He notes that "live tissue pruning shall constitute not more than 10%.
7. While the aerial inspection that Mr McArdle recommended would assist with clarification of these Pruning Specifications, I would anticipate that the extent of live damaged branches requiring removal will be very minor, far less than 10% of the canopy. Removal of foliage compromises optimum tree health, as the leaves provide sugars that support all vital physiological processes.
8. At Q12 of her application, addressing whether any steps had been taken to prevent any such injury, Ms Le Bron notes that due to the safety risks, she rarely uses the back yard, or outdoor area of the property. This fear, and the danger their daughter perceives in her upstairs bedroom, more than ten metres from the tree canopy, are disproportionate with the reality of this situation, and inconsistent with a large body of evidence, which shows that death or injury resulting from tree or branch failure is extremely rare, with a probability far lower than travelling in a car. It would be unsurprising if Ms Le Bron's fear was exacerbated by Mr McArdle's assessment of the tree as 'high risk'.
9. With respect to damage and annoyance from leaves and small refuse impacting on the house gutters and downpipes, it must be noted that the canopy of the tree does not overhang the house, and appears to be more than 1.5 metres away at its closest.
10. In Robson v Leischke [2008] NSWLEC 152 at [56], discussing the issue of nuisance, Preston CJ states that "mere encroachment is insufficient to complete a cause of action." At [171], with respect to "annoyance or discomfort to the occupier of the adjoining land occasioned by nuisances of the third kind", his Honour states that this is not "damage to property on the land" within s 7 of the Act, and that "leaves, fruits, seeds, twigs, bark or flowers of trees blown onto a neighbour's land might cause annoyance or discomfort to a neighbour, but unless they also cause damage to property on the neighbour's land they will not be actionable under s 7."
11. The issue of the maintenance impost from falling sticks and leaves is addressed in Barker v Kyriakides [2007] NSWLEC 292, which, at [20], establishes the tree dispute principle; "For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment." In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis. The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees will not ordinarily provide the basis for ordering the removal of or intervention with an urban tree."
12. In previous cases, the installation of gutter guard has also been recommended in the context of this grounds maintenance expectation, and thus none of the submissions with respect to damage from leaves and sticks, on the ground or in gutters, invokes the Act's jurisdiction.
13. I am required to balance consideration of the extent of the damage with discretionary factors in s 12 of the Act.

Discretionary matters - s 12

1. In making an order, the Court considers relevant matters in s 12 of the Act.

• The gum tree is located in the respondent's property about three metres from the rear boundary (s 12(a)).
• The tree is protected by Council's Tree Management controls under its Development Control Plan (s 12(b)).
• With respect to s 12(b2), past pruning of the tree has been minimal and appropriate. No pruning is required other than deadwooding, plus perhaps a few live branches that may exhibit partial breakages or genuine faults.
• The tree contributes significantly to privacy, to protection from the sun, to landscaping, and to the amenity and scenic value of Dr Chidiac's land (s 12(b3)(e)).
• When viewed from the street in front of Ms Le Bron's property, as I did after the conclusion of the hearing, one can appreciate the significant local amenity the tree provides, and also how healthy it appears. It thus provides significant intrinsic value to public amenity, and, given its age, may have historical value (s 12(f)(c)).
• Being a species native to moist valleys in the local area, and because of its flowering and fruiting characteristics, the tree could be expected to provide food and or shelter for local fauna and thus would contribute to local biodiversity. A large bird's nest was noted in the upper canopy (s 12(d)).
• The tree is likely to be providing benefit to soil stability, and to reducing localised water accumulation (s 12(g)).
• Section 12(i) considers 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 and the impact of any trees owned by the applicant. The pool is relevant in this respect, in that it is unreasonable to locate a pool under the canopy of a large, long established tree, and to not expect to take a level of responsibility for the refuse that will naturally fall from it, or for any risk incurred.
• In Black v Johnson (No 2) [2007] NSWLEC 513, 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. I am satisfied that the Cypress is causing damage; that the Act is thus engaged; and that removal of this tree is the only viable option.
2. No satisfactory evidence has been provided to support or justify removal of the Sydney Blue Gum. It is structurally sound and healthy, and risks associated with it have been assessed using an incomplete methodology, and have thus been exaggerated by Mr McArdle.
3. Notwithstanding this, I am satisfied, based on viewing the tree, and on the photos provided, that there is some risk of injury from falling dead branches, and therefore pruning of deadwood will be ordered. In recognition of the additional onus that exists in society with respect to the safety of children, the small branch size specification for these works will result in a greater degree of risk reduction than that normally considered necessary.
4. The issue of the maintenance impost from falling sticks and leaves is addressed and dismissed with consideration of the principle established in Barker v Kyriakides [2007] NSWLEC 292.
5. It is critical that the DA assessment for Dr Chidiac's planned building, where it encroaches under the tree canopy or within the TPZ, include a requirement for root mapping, and consideration of building designs incorporating pier and beam construction or cantilevering, in order to minimise root damage. I stress this particularly in the light of both Dr Chidiac's and my concerns, that such an assessment was unlikely to have been employed by Council with respect to Ms Le Bron's pool installation.
6. The tree provides many important environmental services, as exhibited through consideration of s 12 of the Act. In its local context, it may justify inclusion on a Significant Tree Register, if Council maintained one.

Orders

1. The orders of the Court are: 1. The respondent is to remove the Cupressus macrocarpa (Monterey Cypress) to near ground level and poison its stump. This tree removal work shall be completed within 45 days of the date of these orders, and at the respondent's expense. 2. The quadrant of the Eucalyptus saligna (Sydney Blue Gum) canopy overhanging the applicant's property shall be pruned annually to remove all deadwood above 10mm diameter at the branch collar. This should be completed in July or August each year, prior to spring winds and the subsequent swimming season. Even if it is completed prior to these months this year, the next annual pruning ordered shall be completed in July or August, 2020, and then each subsequent July or August. The work is to comply with AS4373-2007 Pruning of amenity trees. 3. The expense for this annual dead-wooding shall be shared equally between the parties. Each year, the applicant and the respondent may each procure up to two quotes for the work specified in order 2. If they cannot agree on an arborist, the least expensive of the quotes is to be selected, provided that they meet all requirements of Orders (2) and (4). Within 14 days of receipt of a copy of a paid invoice for these works, Ms Le Bron is to reimburse Dr Chidiac 50% of the total of the invoice. 4. All works shall be undertaken by AQF level 3 qualified arborists, with appropriate Public Liability insurance, and in compliance with Safe Work Australia 'Guide to managing risks of tree trimming and removal work', 2016. If required for any of these works, as is likely, access is to be provided by the applicant, subject to notice of at least 48 hours, and entry only during reasonable working hours.

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: 01 May 2019