Libbesson & anor v Martin & anor

Land and Environment Court (NSW)|2013-12-04|Before: Craig J, Preston CJ

Judgment 1COMMISSIONERS: The applicants own a property in Killara. In February this year, a branch fell from an overhanging tree and punctured the roof and ceiling of their dwelling. 2The applicants have applied under s 7, Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the removal of three trees growing on the adjoining property. They are also seeking compensation of $500 being the excess paid to their insurance company as a consequence of roof and ceiling repairs necessitated by the branch failure. The application is made on the basis of past damage as well as potential future damage or injury.

The Court's jurisdiction 3In applications under Part 2 of the Act, the key jurisdictional tests are found in s 10(2). This section states that the Court must not make an order under Part 2 unless it is 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. These tests must be applied to each tree about which an application is made. 4The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. At [62] Craig J states in part "something more than a theoretical possibility is required in order to engage the power under [the Trees] Act...". In Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280, Preston CJ at [179] states it is sufficient if the tree is 'a cause' of any damage to an applicant's property. 5The guidance decision published in Yang v Scerri [2007] NSWLEC 592, considers the 'near future' to be a period of 12 months from the date of the determination. This is a "rule of thumb" and its application will depend on the circumstances of the matter. "In the near future" applies only to damage. In regards to injury, a number of other judgments have considered the 'foreseeable' future and the likelihood of a tree or part thereof to cause injury to any person should be based on the characteristics of the tree, any history of previous failures and the circumstances of the site apparent at the time of the hearing. 6If any of the tests in s 10(2) are satisfied for any of the trees, the Court's jurisdiction to make orders under s 9 of the Act is engaged. Determining what, if any, orders should be made requires consideration of relevant discretionary matters under s 12.

The trees 7The three trees are growing on a rocky slope towards the rear of the respondents' property along the northern side and common boundary. The relevant portion of the boundary between the parties' properties is a mostly unretained earth bank, the top of which is about one metre above the applicants' back garden. 8Each party engaged an arborist to inspect and report on the trees. Ms Catriona McKenzie prepared a report for the applicants, and Mr Mark Hartley prepared a report for the respondents. Both arborists were present at the on-site hearing. 9The trees the subjects of the application are: Tree 1 - Acacia decurrens (Black Wattle), Trees 2 and 3 - Eucalyptus botryoides (Bangalay). Another nearby Bangalay - shown on plans as Tree 4, was noted but is not part of the application.

Tree 1 10The applicants are concerned that all or part of this tree may fail onto their property causing damage and or injury. They rely on Ms McKenzie's report to support their request for its removal. The applicants also consider the tree has damaged the lawn by shading it. 11Tree 1 is a mature tree growing on the edge of the unretained bank. A large proportion of the lower branches are dead but the arborists agree the tree is reasonably healthy and displays good vigour. The canopies of the taller Bangalays overhang this tree. 12The trunk comprises two codominant stems or bifurcated trunks with included bark. The bifurcation arises close to the ground. There is evidence of active borer damage and the production of gum in response. 13Ms McKenzie notes that the eastern stem has a slight lean and the western stem has what she describes as a severe lean of up to about 35 to the north/northeast across the applicants' rear lawn and over the roof of the dwelling. She also notes a kink in the western stem approximately 1m above the co-dominant stem junction. Ms McKenzie refers to the suppression of the lawn as a consequence of shading by the Acacia. 14Ms McKenzie states in her report (at [20]) that in her opinion Tree 1: ...has achieved mature dimensions, has identifiable defects and is showing signs of structural decline, despite the tree's current good vigour. There is a high risk a stem of the tree may fail at the co-dominant stem junction, although the tree also presents a high risk of failure at the roots or at the stem kink due to its severe lean and heavily biased crown weight. 15On this basis, Ms McKenzie recommends the removal of the tree. 16In correspondence filed with the application, the respondents state that they have given the applicants permission to prune the tree. They state that the removal of dead wood and of branches directly over rooflines is exempt from Ku-ring-gai Council's Tree Preservation Order. They also state that they would support any application to council should the applicants wish to remove the lower stem. The respondents rely on Mr Hartley's report to support their contention that the tree does not need to be removed. 17Mr Hartley takes issue with the language in Ms McKenzie's report and notes that she does not appear to have based her conclusion on any formalised risk assessment system nor, in his opinion, has she provided any evidence that failure is imminent or even probable in the next 12 months or the 'near future'. 18In determining whether the Acacia was likely to fall over, Mr Hartley attached a Tree Motion Sensor to the base of the tree. During the 10 day test period Mr Hartley states that winds reached speeds of up to 70km/hr with gusts up to 80km/hr. The results of testing showed the movement of the tree to be in the low range and in his view, there is no basis for the assumption that the tree poses a high risk of failure at the roots. 19Mr Hartley's report does not discuss the potential failure of the bifurcated and included stems in any detail. During the hearing he expressed a view that the codominant stems had been present for a long time and that he did not anticipate their failure in the near future. He also considers that Acacias retain their dead wood for long periods and the risk of it falling and causing injury is also low. He agreed with Ms McKenzie that the species is a relatively short-lived tree and would probably live for another five years or so. He did not see the need to remove it now and that pruning lower branches should suffice. 20Mr Shaw, solicitor for the applicants contends that the tree has damaged the lawn by shading it and that this alone is sufficient to engage the Court's jurisdiction under s 10(2). He maintains that we should prefer Ms McKenzie's assessment of the risks associated with the tree. 21Mr Legg, the respondents' solicitor notes the agreement between the arborists that the Acacia is still vigorous but close to the end of its life, however he stresses the difference in opinion in regards to the action that should be taken. He contends there is insufficient evidence to justify its removal at this stage. He drew our attention to Mr Hartley's observation of a pile of dead branches in which there were few if any Acacia branches.

Findings - Tree 1 22In Robson at [166], Preston CJ discusses what constitutes "property on the land" and therefore the extent to which Part 2 of the Act applies to an element of an applicant's claim. His Honour considers damage that may be caused by a tree's roots to various structures or vegetation growing on a neighbour's land may be covered. In other judgments the Court has considered damage caused to an applicant's plants as a consequence of falling branches. Whether shading of a garden is within the province of Part 2 of the Act is dependent on there being demonstrated actual damage to any element of that garden or satisfaction beyond a hypothetical possibility of future damage. 23In regards to the applicants' lawn, while it looked in poor condition, we have insufficient evidence to determine whether its condition is due, at least in part, to the tree or to other factors. For example, we were not shown any photographs of its condition prior to the growth of the tree. 24Even if we were to put the applicants' case at its highest and accept that the tree is a cause of the 'damage' to or impairment of the lawn, which would then engage the Court's jurisdiction, as a matter of discretion we would not make any orders for the removal of this tree on that basis. 25In this regard, s 12(h) is relevant, that is, are there other factors that may have contributed to the damage. For example, the section in question is a relatively small lawn located on the south western portion of the applicants' property. It is therefore likely to be heavily shaded by the applicants' dwelling. It is possible that the species or cultivar of turf is not shade tolerant. Similarly, the soil and associated growing conditions may be an issue. Therefore on the basis of the information before us, we cannot support this element of the application. 26While the parties engaged arborists as expert witnesses, we also bring arboricultural expertise to the Court. We observed branches resting on the roof of the dwelling but no damage was drawn to our attention. We also concur with Mr Hartley on the persistent nature of the dead wood in this species however, it is also inevitable that the dead wood will eventually degrade and will fall from the tree. 27We also agree with the arborists that the species is relatively short lived and that this tree is near the end of its useful life. As the tree declines the proportion of dead to live branches will increase; the tree becomes susceptible to the effects of other debilitating factors such as borers. The wood generally becomes weaker and more prone to failure. 28Although Mr Hartley has undertaken an assessment of the likely risk of whole tree failure and found it to be low, we note that he has given little attention to the codominant/bifurcated stems. In this respect we prefer Ms McKenzie's assessment and consider that there is more than a hypothetical possibility of the failure of one of the stems before the death of the tree. The stems are large enough to have the potential to cause damage or injury. 29While the timeframe in the guidance decision in Yang v Scerri has been applied quite consistently, in the particular circumstances of this matter we consider that the "rule of thumb" of 12 months should not apply. We consider the 'near future' is certainly foreseeable for this particular tree. Therefore, we find that s 10(2) is satisfied for Tree 1 and we can determine what orders should be made under s 9. 30As stated above, this requires consideration of relevant matters under s 12. 31There is no question that the base of the tree is wholly located on the respondents' property although the canopy is almost completely over the applicants' property. In terms of amenity, it therefore provides little if any amenity to the respondents' property. 32Of particular relevance is s 12(b2): the impact of pruning. The respondents' position is that the applicants are able to remove the dead wood and any overhanging branches. While this appears to be permitted under the Ku-ring-gai TPO, doing so would result in the removal of most of the tree and probably result in the need to remove the tree. In our view, given the significant extent of dead wood and overhang, this places an unreasonable burden on the applicants when the tree is the respondents' responsibility. Similarly, if we ordered the removal of dead wood and the lower of the co-dominant stems and any branches likely to contact the roof, a significant proportion of the tree would be removed; a tree which has an agreed short life expectancy. 33Therefore in the circumstances, we find that pruning is not a practical solution and the tree is to be removed at the respondents' expense. Given the position of most of the canopy, the branches may have to be removed through the applicants' property. As the roots may assist in stabilising the bank in which it is growing, no orders will be made for stump removal.

Tree 2 34This is a mature Bangalay growing near the edge of the unretained bank along the common boundary. This tree is some metres to the east of T1. The tree is a healthy specimen and a number of branches overhang the applicants' dwelling. 35The applicants contend that in December 2007, a large live branch fell from this tree and caused damage to the glass roof and tiles of their dwelling. The SES was called to remove the branch and cover the roof. 36On 23 February 2013, a dead branch fell from a nearby tree and pierced the roof and ceiling. Photographs in the applicants' bundle of evidence show the branch through the roof and ceiling. 37The applicants are concerned that further branches may fail and cause future damage or injury. 38Apart from the risk of branch failure, the applicants are also concerned that roots from this tree may have caused or could cause damage to their dwelling and associated structures. 39Given these concerns, the applicants are seeking orders for the removal of the tree. 40In regards to the above ground parts of the tree, on various visits to the applicants' property, Ms McKenzie observed the points from which she considered the 2007 and the 2013 failures occurred. Since the time of her last inspection in April 2013, the respondents engaged an arborist to remove dead wood from the eucalypts on their property, including the sections overhanging the applicants' property. (The trees were pruned in June 2013.) 41Subject to an assessment of the impact of root pruning, in her report, Ms McKenzie recommends the removal of dead wood down to 20mm in diameter as a means of reducing the risk of damage to the applicants' dwelling. 42Mr Hartley's report appears to question whether the 2013 branch fell from tree 2. He considers the way in which the branch fell and punctured the roof to be unusual and does not warrant the removal of the tree. 43During the hearing we were shown the likely point of failure of the 2007 branch. The location of the point of attachment and the relative location of the glass section of roof would suggest that it was probable that the branch did fail from that point. While there is no photographic evidence of that damage there is no suggestion that the event did not occur. 44Because of the pruning in June, the likely point of failure of the 2013 branch, indicated by Ms McKenzie, has been removed. However given the location of the damaged section, the fact that Tree 2 overhangs that part, and the branch is clearly that of a eucalypt, we are satisfied that Tree 2 has caused damage to the applicants' property and s 10(2) is satisfied in regards to this tree. 45Before considering what orders should be made, the other concern the applicants have about this tree is in regards to potential damage to their dwelling because of its roots. 46According to her report, Ms McKenzie visited the applicants' property in January 2012. She viewed the four trees growing on the respondents' property. She states in her report that, amongst other things, she gave a verbal opinion that roots from a tree on the neighbouring property were lifting a concrete slab in the applicants' backyard and were likely to be the primary cause of damage to a bedroom wall. 47The applicants engaged Mr Paul Moxham, a licensed builder, to inspect the applicants' dwelling and nearby areas for evidence of any damage that may have been caused by roots from trees growing on the adjoining property. 48Mr Moxham's report dated 8 April 2013 includes photographs and a location diagram of the roots he found beneath the south-western portion of the applicants' dwelling. The roots and accompanying photographs are numbered. He identifies Tree 2 as the likely source of the roots but states an arborist should verify this. 49Mr Moxham considers that from his experience, the cracks may continue to worsen with the possibility of structural damage. He recommends a structural engineer assess the dwelling. 50After a further inspection of the subfloor and area beyond on 12 June 2013, Mr Moxham checked the roots to determine whether they were dead or alive. The diagram records where the roots were seen on the surface beneath the floor; it is possible that they are sections of the same root/roots. 51Under bedroom 2, Mr Moxham noted four roots between 20 and 40mm in diameter. Only one 25mm diameter root (no. 6) was alive and no structural damage appeared to have been caused by any of the roots although Mr Moxham stated that a root had displaced a pier by about 30mm. 52Roots were observed under bedroom 3. Two of the roots were measured - one was 50mm and the other 70mm in diameter. None of the roots below bedroom 3 were alive. Mr Moxham's report includes photographs of cracks in the internal and external sections of the double brick outer wall beneath the window of bedroom 3. The wall has since been repaired. 53Photograph 16 shows a woody root outside bedroom 3, adjacent to a concrete slab in the applicants' garden. The concrete retaining "wall" is cracked in the vicinity of the root. This root was alive but severed near the wall. The root is consistent with being from a Eucalypt. 54We observed a woody root, consistent with being from a Eucalypt, growing under and lifting the concrete slab. 55Ms McKenzie considers that the roots Mr Moxham observed beneath the house and those she notes in her report are most likely from Tree 2 rather than from trees 3 or 4, given its location in relation to the dwelling and slab. In her opinion, cutting the exposed roots beyond the outer edge of the slab is unlikely to have any significant impact on the health or stability of the tree. 56Mr Hartley's report considers various aspects of root growth. He questions when the cracking of the building occurred and whether the damage occurred after the roots died. A considerable section of his report deals with root pressure calculations. While he agrees that roots could have lifted the concrete slab he questions the ability of the roots beneath the house to have caused any damage.

Findings Tree 2 57As stated above, we are satisfied that a dead branch from Tree 2 caused damage to the applicants' roof and ceiling. While no photographic evidence was provided, we have no reason to doubt that another branch caused damage in 2007. We are also satisfied on the balance of probability that a root or roots is/are lifting the concrete slab in the applicants' garden. We are also satisfied that a root/roots from this tree may have contributed to the crack in the 'retaining wall' and the damage to the wall of bedroom 3. 58Therefore, as s 10(2) is satisfied, the Court's jurisdiction to make orders under s 9 is engaged. 59In regards to the canopy, the arborists agree that the branch architecture of the tree is good and the branch attachments appear sound and normal. Unless there is an obvious defect in the attachment of a branch, the failure of live branches is quite unpredictable. 60The falling of a dead branch caused the last damage occasioned to the applicants' roof. While Mr Hartley considers the way it fell to be unusual, that is not our experience. However, the majority of the dead wood has been removed and there is nothing that would lead us to conclude that any branch on this tree is likely, in the conventional time frame of the near future, to cause damage to the applicants' property. 61In regards to the roots, we note that the slab has been lifted but it is not cracked. The slab was poured before 1986 as it was there when the applicants purchased their property. 62No submissions were made about the use or importance of this slab. The effect of the displacement is more aesthetic. We see no reason to order the cutting of any roots on the northern side of this slab as to do so could have unpredictable consequences for the health and stability of the tree. We do not propose to make any orders for the rectification of the slab, although none have been sought. Should the applicants wish to fill beneath the slab or raise the level of their lawn that is a matter for them. 63At the hearing Mr Moxham noted that the "retaining wall' is a poured concrete wall with no expansion joints other than a saw cut. Therefore it is possible that the structural integrity of the wall is questionable. Although it is cracked, it is still functional and the root in its vicinity has been cut. We do not propose to make any orders for any intervention with the tree on this basis. 64Despite Mr Hartley's calculations, it is not beyond the realm of possibility to consider that before it died, the 70mm diameter root (being closest to the wall) may have caused some uplift of the section of wall beneath the window in bedroom 3 and therefore may have contributed to the damage. However, we note Mr Moxham's photographs show no cracking of the bricks at ground level in the vicinity of the roots. 65While roots may have damaged the wall, all, but one, of the roots beneath the house are dead. We do not consider there is any evidence to lead us to conclude that further damage is likely to occur in the near future. The only living root is less than 25mm in diameter and can easily be cut. This is something the applicants can carry out should they so wish. 66In their claim form the applicants state that roots were removed from a drain. This statement is in the context of Tree 2. However, no evidence was adduced as to what damage occurred. Therefore we do not propose to make any orders in regards to this contention. 67Therefore after considering the evidence and submissions, we do not propose to make any orders for any intervention with Tree 2. However, in saying this, should the circumstances change, a fresh application can be made (see Hinde v Anderson & anor [2009] NSWLEC 1148).

Tree 3 68This tree is setback between Tree1 and Tree 2. The applicants are concerned about the encroachment of a long, large branch into their property and over their roof. They are concerned there is a risk it may fail and cause damage to their property or injury to someone. 69Ms McKenzie describes the branch as a "co-dominant scaffold branch that carries up to 40%-50% of the tree's crown volume". She states that if the branch were removed to alleviate the applicants' concerns it may have an adverse impact on the tree's vigour and stability. At the hearing she voiced her concerns about the buckling on the underside of the branch and the unusual swelling in the vicinity of the collar. 70Mr Hartley considers there is no evidence to suggest there is an elevated likelihood of failure in the near future. 71The arborists agree that the tree is healthy but somewhat suppressed by the overhanging canopy of Tree 2. 72We agree that the branch is long and reaching however we find there is insufficient evidence to support the removal of this branch and certainly no evidence to justify the removal of the tree. As s 10(2) is not satisfied for this tree, the Court's jurisdiction is not engaged.

Compensation 73Mr Legg relies on Mr Hartley's opinion and submits that the damage to the applicants' roof resulted from an unusual and unforeseeable event. He maintains that while there is no unequivocal evidence the branch came from Tree 2, he concedes it is the most likely source. 74Mr Shaw contends that had the respondents acted on previous requests from the applicants for action to be taken in regards to overhanging branches, it is unlikely the damage would have occurred. He disputes the respondents' statements that they have regularly maintained their trees as the only action the applicants recall them taking was the pruning undertaken after the failure of the branch. 75As considered above, we do not share Mr Hartley's opinion that the branch failure was unpredictable or exceptional. Given our findings in [44] we are satisfied that the branch fell from Tree 2. 76On this basis we find it is appropriate to order the respondents to reimburse the applicants the $500 excess arising from their claim on their insurance policy.

Orders 77As a consequence of the foregoing, the Orders of the Court are: (1)The application is upheld in part. (2)Within 60 days of the date of this judgment, the respondents are to engage and pay for an AQF level 3 arborist, with appropriate insurance cover, to remove the Acacia decurrens, identified as Tree 1. The tree is to be removed to ground level. (3)On at least three working days notice the applicants are to provide all necessary access for the purpose of quoting the works in (2) and for the safe and efficient carrying out of the works in (2). (4)The works in (2) are to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry. (5)Within 30 days of the date of this judgment, the respondents are to reimburse the applicants the sum of $500.00.

Judy Fakes Commissioner of the Court

David 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 January 2014

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