Liang v Marsh & anor

Background

1. The tree the subject of this application is a dead Eucalyptus saligna (Sydney Blue Gum) located close to the common side boundary at the rear of the respondents' property. This tree was the subject of an earlier application made by Mr Liang under Part 2 of the Trees Act (see Liang & anor v Marsh & anor [2011] NSWLEC 1026). In that matter, heard on 9 February 2011, Mr Liang sought the removal of the tree on the applicants' contention that the tree had caused damage to a retaining wall and roof and that it could continue to do so. The applicants were also concerned about possible injury arising from failure of the whole tree or of branches. As the presiding Commissioner, amongst other things, I made orders refusing tree removal but requiring the biennial removal of dead wood.
2. According to the respondents' material (Exhibit 1), in May 2012, over the course of a week, the respondents observed the leaves on the tree turn from green to brown and then die. An inspection of the trunk revealed seven pieces of bark stuck with blue adhesive to the northern side of the trunk (the applicant's side) just above the fence. Photographs of these closely spaced pieces of bark are included in Exhibit 1.
3. In early May 2012, the respondents engaged consulting arborists from Australian Tree Consultants to inspect the tree and prepare a report. The report dated 30 May 2012 and signed by consulting arborists Mr Hugh Taylor and Ms Julia Sullivan observed the foliage to be dead with the majority of it retained on the tree. They describe the seven holes filled with solidly set filler and then covered with a piece of bark stuck to the trunk. They note the vertical splitting and cracking of the bark above and below each hole (described by them as drilling sites).
4. The arborists state that the tree appeared to have been a healthy and structurally sound specimen before its sudden death. In their conclusions they state in part: Although the drill holes could not be inspected due to the filler that was used bonding to the trunk it can fairly accurately assumed that the tree has been deliberately poisoned. The type of chemical used is unknown however all other physical evidence suggests sudden death from most probably a herbicide poison; sudden wilting and death of foliage which is retained after death as well as cracking and splitting of the bark as it desiccates. This has been a lethal dose of poison with no chance of the trees recovery.
5. Having obtained this advice, Mr Marsh obtained a quote from an arborist to remove the tree; the quoted price was contingent on having access to the tree via the applicant's driveway. On 21 November 2012, Mr Marsh wrote to Mr Liang holding him responsible for the death of the tree and asking him to allow access for its removal and to pay the full cost of the removal and other associated costs. Having no response from Mr Liang, Mr Marsh again wrote to Mr Liang on 20 January 2014.
6. During the hearing, Mr Liang stated that he did not reply to Mr Marsh's letters as he did not agree with Mr Marsh's assertions. In his opinion, the removal of the tree is the respondents' responsibility. Mr Liang denied having any knowledge of, or involvement in, the alleged poisoning of the tree.
7. Mr Liang takes issue with the conclusions in the Australian Tree Consultants' report; in particular he presses the use of the words "assumed" and "probably" as indicative of assumptions rather than facts and he notes that the chemical is "unknown".
8. At the time of the hearing, the tree was in an advanced state of decline. The sections of glued bark had fallen off but I observed a saved specimen on which the blue-coloured adhesive was still visible. Unusually, the drilled section of trunk above the fence line on the northern side of the tree appeared to have been refilled with a material of a colour selected to blend in with the rest of the tree. Neither party appeared to have any knowledge of who may have done this.
9. The other element of the claim is compensation for the cost of replacing roof tiles and re-attaching an aerial. The photographs in the application claim form (Exhibit A) show four damaged concrete roof tiles. The dislodged aerial was lying on the roof. Another photograph in the claim form shows a dead branch on the roof.
10. In applications under Part 2, the key jurisdictional test is found in s 10(2). This states: (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.
11. Given the advanced state of decline of the tree and its proximity to the applicant's dwelling, I am satisfied that branches falling from it have damaged the roof and aerial and could cause future damage and or injury. As s 10(2) is met, the Court's jurisdiction to make orders is engaged.
12. There is no dispute that the tree must be removed. The question of who should pay for it remains in contention. This requires consideration of relevant matters under s 12 of the Trees Act; the most relevant being s 12(h) and (i) - the actions of the parties.
13. With the arboricultural expertise I bring to the court, I am satisfied, to the necessary degree of comfortable satisfaction discussed by the High Court in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, and to the extent required by s 10(2), that the tree died as a result of being poisoned. Therefore I agree with the conclusions made by Australian Tree Consultants in their May 2012 report. In my view there is no other rational explanation of the sudden death and presence of seven closely spaced holes which someone took pains to disguise by gluing sections of bark to the tree and then, more recently, refilling the area with a bark coloured filler. During the on-site hearing I noted that given the proximity of the fence to the tree and the location of the holes, it would have been very difficult for anyone on the respondents' side of the fence to have performed the drilling. As the respondents wished the tree to remain, there is similarly no reason to assume that the respondents poisoned their own tree. I consider that any drilling would have occurred from the applicant's side of the fence with easy access via a ladder. Notwithstanding Mr Liang's denial of any involvement, I am satisfied that the applicant, or someone on his behalf, poisoned the tree. This finding is consistent with the findings in Joaquim v Adamson [2009] NSWLEC 1312 at [73]-[79].
14. Given this finding, I consider that the need to remove what was apparently, on the uncontested evidence of the arborists, an otherwise healthy tree is a result of the applicant's actions and therefore the cost of removal should be borne by the applicant.
15. The respondents took action to identify the cause of the sudden decline of the tree and notified Mr Liang of the findings. It was Mr Liang's choice not to respond to that report and notification in a more timely manner. Therefore I am also satisfied that the decline of the tree and the subsequent failure of dead branches onto the applicant's roof is an inevitable consequence of the poisoning and that any rectification of the applicant's property should be at his own expense.
16. Given the relative ease of access to the tree from the applicant's property, it is likely that the majority of the work will be undertaken from the applicant's land. However, the respondents will be required to provide reasonable access for the removal of the section below fence height.

Orders

1. As a consequence of these findings, the Orders of the Court are: 1. Within 30 days of the date of these orders the applicant is to engage and pay for an arborist with a minimum qualification in arboriculture of AQF level 3 and with appropriate insurance cover, to remove the dead Eucalypt at the rear of the respondents' property to ground level. 2. The work in (1) is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry or equivalent. 3. The applicant is to provide all reasonable access to his property for the work in (1) to be carried out safely and efficiently; this includes advising users of the common driveway to his property. The respondents are to provide all reasonable access on reasonable notice for the purpose of quoting and the safe and efficient carrying out of the works in (1). 4. The application for compensation for damage to roof tiles and aerial is dismissed.

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Judy Fakes 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: 26 April 2017