Mildred v Steinhauer

Land and Environment Court (NSW)|2021-12-14

Background

COMMISSIONER: Mr Mildred (the applicant) and Ms Steinhauer (the respondent) share a side boundary between their properties in Oatley, in Sydney's south-west. The applicant's property faces a street to the west, while the respondent's property faces east towards a parallel street. About 40% of Mr Mildred's south facing boundary in his back yard is shared with Ms Steinhauer's northern boundary.
Ms Steinhauer has occupied her property for over 45 years, while Mr Mildred purchased his property about two years ago and leases it to tenants. The subject of the dispute is a mature Eucalyptus microcorys (Tallowood) (the tree) located near the north-western corner of the respondent's land. The tree is said to be about 60 years old. Being renowned as a long-lived species, the tree may be considered to be near the middle of its life cycle. It is about 25 m tall, with a canopy spread of about 12 m.
Mr Mildred seeks orders for the removal of the tree, pursuant to s 7 of Pt 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), as a consequence of damage he claims it is causing to sewer pipes which run near and/or under the tree, and on the basis of his concerns that its roots will cause future damage to sewer pipes. He also claims that the tree represents a genuine risk of injury to his tenants, to his family who plan to occupy his property in the future, and to his next-door neighbour, Mr Lee and his family, who occupy the property to the rear of Ms Steinhauer. Mr Mildred also seeks that the proposed tree removal be undertaken at Ms Steinhauer's expense, but he stressed that he makes no claim for compensation for other expenses, such as those previously incurred for pruning of the tree.

The hearings

The initial hearing was conducted on 1 December 2021, via audio-visual means according to the Court's COVID-19 Pandemic Arrangements Policy. Upon completion of the online proceedings, the hearing was adjourned to a site visit on 14 December 2021. The Court's decision was then reserved. Mr Mildred attended both hearings and was self-represented.
Ms Steinhauer was represented at both hearings by her carer, Ms Sosna, acting as her agent. All documents required to legally formalise Ms Sosna's agency arrangement were supplied to the Court and provided in the case file.
The site visit was undertaken on 14 December 2021, initially with an inspection of the tree from within the respondent's back yard. By looking through and around a woody vine which grew amongst its trunk and lower branches, I saw that the tree's trunk was in excess of 1 m in diameter at breast height (DBH), and active growth striations on the trunk and around major branch attachment points suggested that it was very healthy and vigorous, and likely developing strengthening wood as and where it was required. No signs of beetle borer or termite activity were apparent.
Subsequently viewed from Mr Mildred's rear yard, the canopy displayed a normal, dense foliage cover typical of this species, with healthy turgid lustrous leaves, qualities which reflect above average health and vigour.
In his Tree Dispute Claim Details - Form H (Exhibit B), Mr Mildred at least inferred that the Google Earth photograph (photo) on page four displayed the tree's present canopy spread and his diagrams showing areas of likely injury appear to be based on this. Evidence adduced at the site visit, however, showed this to be a misrepresentation in that this Google Earth photo displayed the tree prior to major pruning by the applicant in 2019.
While the photo displayed the tree canopy extending right up to and over the rear of the applicant's house, at the site visit, the tree was well clear of this house. Large wounds at various branch collars indicated that its canopy had been significantly shortened and raised on its north-western side, such that it displayed a distinctly erect, narrowed form relative to the broader canopy normally characteristic of mature trees of this species. The canopy spread also appeared to have been reduced over Mr Lim's property relative to extent shown in the Google Earth photo, though the photo provides insufficient clarity to be sure.

Jurisdictional requirements

With respect to s 7 of the Trees Act, 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.
The Court is obliged to consider a number of matters pursuant to s 10 which states: 10 Matters of which Court must be satisfied before making an order (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: (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.
It is clear from the details in the application that Mr Mildred has pursued a quest to have his neighbour's tree removed from soon after he purchased his property about two years ago. He notes that before settlement of this purchase, he requested that the prior owner obtain a permit from Georges River Council (Council) "with the respondent's acquiescence" to prune the tree. Though this pruning in 2019 was extensive and reduced the canopy overhanging the applicant's property to a significant extent, Mr Mildred claims that this "has not reduced the risk posed by the tree".
Between 5 July and 4 August 2021, Mr Mildred sent Ms Steinhauer three letters, which requested removal of the tree at his and his neighbour's expense. The applicant notes that his neighbour, Mr Lee, subsequently made numerous representations to Ms Steinhauer, during at least one of which she advised Mr Lee that "she did not want to speak to me (Mr Mildred) regarding this matter". The applicant also says that he was advised by Mr Lee that during his most recent discussion on 14 August 2021, the respondent told Mr Lee to "get lost and stop harassing her", and that since this time, "the respondent has not co-operated and has ignored any requests to sign the application" to Council for tree removal.
Considering the reported frequency and intensity of contact with the respondent by both the applicant and his neighbour, to persuade her to remove the tree regardless that she does not want to, it appears unsurprising that Ms Steinhauer, at 82 years old, might view these representations as harassment, and want them to cease. Both the applicant and Mr Lee (as displayed in his comments quoted within Mr Mildred's Claim details - Exhibit B) interpreted Ms Steinhauer's lack of capitulation to their request as non-co-operation.
Though such a scenario is regrettably not unusual with applications brought under the Trees Act, based on the documentation provided, the history of events preceding the hearing, and the online hearing, I am satisfied that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, and that the requirements of s 10(1) have therefore been met.

Sewer pipe damage

With respect to s 10(2)(a), Mr Mildred claimed that roots from the tree have caused damage to his sewer pipes, and that they are likely to cause future damage to them.
He provided plumbers' receipts for pipe clearing in 2009 and 2010 garnered from the previous owner of his property. While these may provide historical background, they are not material to the case, as Mr Mildred was not the "owner of land" (as required in s 7 of the Trees Act) when this damage was addressed and rectified by plumbers around 12 years ago.
On site, Mr Mildred advised the Court that he had not incurred damage to sewer pipes on his property since purchasing it but reiterated his belief that future damage was likely. Section 10(2)(a) says; 10 Matters of which Court must be satisfied before making an order … (2) The Court must not make an order under this Part unless it is satisfied: (a) that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant's property.
The Court takes guidance from Yang v Scerri [2007] NSWLEC 592 ('Yang'), cited by Mr Mildred to support his case. In Yang, the near future is defined, as "a rule of thumb", to be a period of one year. While Mr Mildred included receipts for rectification of sewer pipe damage incurred about 12 years ago by his property's prior owner, he has reported no damage during the (about) two years of his ownership, nor provided evidence to substantiate that sewer pipe damage is likely to occur over the coming year. Therefore, the applicant's claim with respect to sewer pipe damage is dismissed.
Though no specific paragraphs were mentioned, Mr Mildred submitted Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 ('Smith') in support of his application. At [62] of Smith, Craig J said, "…something more than a theoretical possibility is required in order to engage the power under the Trees Act to make an order to remedy, restrain or prevent damage". With respect to sewer pipe damage in the near future, nothing more than theoretical possibility has been proven by the applicant, so Smith offers no support to his case.
A scenario from Burnham v Ross [2021] NSWLEC 1339 ('Burnham') was also cited by Mr Mildred to support his application, [5] of which says; "On Ms Burnham's property a large root extends from the base of the tree at the bottom of the fence towards a timber deck that is approximately one metre from the fence. The deck is lifted significantly above the root. In the absence of any other likely cause, I find that the tree has caused damage to Ms Burnham's deck. As a result, the Court can make orders to remedy, restrain or prevent damage."
Mr Mildred notes [6] of Burnham, which says; "Further damage is likely, and it would be reasonable to prevent this. The tree's roots cannot be cut this close to the tree, as doing so might destabilise the tree, leaving it prone to windthrow failure. It might be possible to rebuild the deck with some clearance to tree roots, but the tree is already pushing against the boundary fence, which it is likely to damage in the near future. To prevent further damage, I see no alternative to removing the tree."
Unlike in Burnham, no damage has been proven to have been caused to the applicant's property by the Tallowood, nor has such damage been proven to likely occur in the near future. As a result, Burnham provides no support to Mr Mildred.
Channon & anor v Norton & anor [2015] NSWLEC 1391 ('Channon') was also referenced, and this involved a Tallowood causing significant damage to a wall. Mr Mildred noted [12], where Galwey AC deemed an inclusion at a bifurcated junction to be a severe fault that was likely to fail such that he ordered removal, rather than the pruning that the respondents' arborist recommended. Again, the situation here is distinctly different to Channon, as no damage satisfying the requirements of the Trees Act has been proven, and the Tallowood here appears to exhibit no such structural faults.
The applicant also cited Fang v Li & anor [2017] NSWLEC 1503 ('Fang'), where Galwey AC made orders for the removal of a Tulip tree after evidence of root damage to a path and a PVC pipe was found through excavation, and, in the circumstances related to that situation, he deemed that future damage was likely to occur. In Fang, there was clear visible evidence of major distortion to a PVC pipe as a result of tree roots, whereas in this case, any alleged damage appears related to roots entering the sewer pipe, and no evidence has been provided that suggests that the sewer pipe is likely to be crushed. Also in Fang, root damage to a path was proven to be caused by the Tulip tree, and in the circumstances related to that situation, Galwey AC considered he had no alternative but to order tree removal.
Even if damage to sewer pipes in the applicant's property had been found to engage the jurisdiction of the Trees Act, the Court considers wear and tear when contemplating apportioning the costs of repairs between the parties. Whether the pipes are constructed of PVC or terracotta, the Court may consider the amount of wear and tear that is likely to have occurred over time. Significantly, with respect to ingress of roots into pipes, roots do not 'invade pipes` but grow most actively where conditions are best, such as where air and water is available. Some pre-existing jointing defects or other cracks are likely to have existed before the tree's roots could enter the pipe. This normally arises at junctions of pipes that were not adequately sealed upon installation, and/or where the joint sealant has deteriorated over time.
Within his Bundle of supporting documents (Exhibit C), Mr Mildred includes a statement from his neighbour, Mr Lee, dated 27 August 2021. This details blockages to the sewer pipe on Mr Lee's property, allegedly caused by the tree, and plumbing works undertaken to address and rectify blockages. A dent on Mr Lee's storage shed located under the tree's canopy is also referenced, and photos of this dent, and of a live branch, said to be over 5 m long, that fell from the tree in mid-2019 are also included.
Under the Trees Act, any claim relating to damage only applies for damage to the applicant's land. Therefore, as Mr Lee is not a party to this application, damage on his property is not considered.
Though both Mr Mildred and Mr Lee appeared frustrated that the tree's canopy encroached over their land, this alone does not engage the Trees Act. In Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 ('Robson'), discussing the issue of nuisance at [56], his Honour states that under the Trees Act, "Mere encroachment… is insufficient to complete a cause of action..."
His Honour also addresses the issue of debris falling from trees at [171] of, Robson where he says: "However, annoyance or discomfort to the occupier of the adjoining land occasioned by nuisances of the third kind is not "damage to property on the land" within s 7 of the Trees (Disputes Between Neighbours) Act 2006. Hence, 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."
It is relevant to note that this position is consistent with Council's Tree Management Policy of April 2019.
Further, the Court has published a Tree Dispute Principle in Barker v Kryiakides [2007] NSWLEC 292 ('Barker'), which, at [20], states that: "For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order 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, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering the removal of or intervention with an urban tree."
The majority of branches referred to and shown in photographs in Exhibits B and C, and those which the Court inspected on site, were dead and were less than 20 mm diameter at the branch collar. Where orders are made by the Court for pruning of deadwood, 20 mm diameter at the branch collar is normally the minimum size specified. Therefore, branches below this size may be viewed as "small elements of deadwood", in terms of the Tree Dispute Principle in Barker.

Risk of Injury

Both Mr Mildred and Mr Lee claim that the tree represents a genuine risk of injury "…from overhanging branches breaking, falling and striking people…", and Mr Lee notes that he suffered a finger injury as a result of the tree in May 2021. In Robson, at [175], Preston, CJ said,
"In contrast to the requirement that damage caused by a tree be to the applicant's property (s 7 and s10(2)(a)), likely injury can be to "any person" (s 7 and s 10(2)(b)). That phrase is ample enough to include the applicant but the person need not be the applicant. Moreover, there is no locational requirement that the person who is likely to be injured be on the applicant's land. Persons who might be likely to be injured could be on the applicant's land but, also, could be on the adjoining land on which the tree is situated or on other land in proximity (including public roads, pathways or reserves) that might be impacted by the tree, or part of it, failing." Therefore, with respect to injury, the jurisdiction of the Trees Act does extend beyond the applicant's property and may include neighbouring land (i.e. "on other land in proximity").
According to McPherson v Lake [2017] NSWLEC 1081 ('McPherson') [at 10], "…In regards to injury, the Court must consider the risk posed by a tree in the foreseeable future based on the characteristics of the tree, the history of any failures, any other relevant evidence, and the circumstances of the site apparent at the time of the hearing."
The tree displays good health and there are no indications on or around the tree that would suggest poor stability or anchorage in the ground. There are no signs around the tree base, such as soil heaving and lifting, or cracks in the soil, which an arborist may interpret as indicative of stability issues. The trunk base shows no indications of root/crown decay, and the attachments of live branches generally appear strong and stable.
In Braun v Basser [2021] NSWLEC 1510 ('Braun'), a tall, exposed Cook Island Pine suffered extensive root damage from plumbing works. Galwey AC determined that he was not comfortable that the tree was structurally stable after this damage, and he ordered tree removal. In support of his application, Mr Mildred noted [37] of Braun, which says, "Due to the tree's form and growth habit, pruning cannot sufficiently reduce the risk level. The tree's crown cannot be reduced without destroying the tree's form and viability. Removing the tree is the only practical option for mitigating the risk."
The situation here is quite dissimilar, there is no evidence of root damage impacting upon stability or root anchorage, and even if there had been, the broader decurrent form of the tree could be managed by pruning to reduce risk, whereas the Cook Island Pine in Braun cannot.
With respect to "the history of any failures" with the tree, both Mr Mildred and Mr Lee submit that deadwood is constantly falling from the tree. Mr Lee notes that the branch which hit his shed in mid-2019 was about 3 m long, and he included a photo of another live branch that fell around the same time. He says that the (approximately 1 m long) branch which cut his finger in 2021 has left him with permanent scarring, and that "any branch falling from the tree could be dangerous, even if it is not of significant size".
Though these events are not trivial, they would appear to be the only such branch failures that have occurred during Mr Lee's occupation of more than 30 years, given that they are the only such failed branches that he has brought to the Court's attention. Beyond this, the reported branch failures relate to the "small elements of deadwood", which is already considered.
Mr Mildred noted vines growing on the trunk and over lower branches, and this may be considered as "other relevant evidence". He quoted from the Conclusion of a report by Dr Trevor Hawkeswood, dated 30 August 2021 ('arborist report`), that "the tree is infested with trumpet vine Pyrostegia venusta (Bignoniaceae)…which would affect the vigour of the tree".
Mr Mildred also cited Zhang v Alzaidi; Zounis v Alzaidi [2021] NSWLEC 1536 ('Zhang'), at least in part because it includes a tree "covered by a vine". In Zhang, orders were made for pruning of branches overhanging two properties based on the presence of significant deadwood on various trees, and extensive decline and dieback of the vine infected tree. This is quite different to the situation in this case, as deadwood present on the Tallowood is generally of a minor nature, and the vine in this case, whilst best removed, is not enveloping the tree's canopy, adhering to branches, or constricting fluid flows. It is also relevant to note that in Zhang, Galwey AC invokes the Tree Dispute Principle from [20] Barker, as I have at [33] above, he has applied 20 mm as his minimum threshold when specifying deadwood removal, and with respect to both applicants, notes that "Pruning all overhanging branches back to the boundary is not necessary to mitigate the risk".
Turning to "the circumstances of the site apparent at the time of the hearing", Mr Mildred contends that his 2019 pruning has not sufficiently reduced the risk, and that tree removal is required to achieve this. By comparing the Google Earth photo in Exhibit B (prior to pruning) to the tree as at the site visit, it is obvious that the tree had been heavily pruned. Though this looked excessive in terms of impact on tree health and appeared to include first order branches contrary to the terms of Council permission (TA2019/0461), the final pruning cuts were actively occluding at branch collars, and the canopy was well clear of Mr Mildred's house and rear deck.
The applicant contends that branches continue to fall on his house, and throughout his rear yard, especially during wind, but the tree's canopy has been sufficiently raised and reduced back towards the south-east corner of Mr Mildred's rear yard, that this appears unlikely. Other than one or two branches a few metres in length, only minor deadwood appeared likely to fall from the tree. Should this occur during windy periods, the risk is inherently lower as outdoor occupancy is normally far less frequent during winds and storms than in calm conditions.

The arborist's evidence

Both Mr Mildred and Mr Lee emphasised that Dr Hawkeswood's report ('arborist report`) strongly supported their case for tree removal.
The 'arborist report` table of information says the tree has fair Health and Structure, low Landscape Significance, a Useful Life Expectancy (ULE) of R (removal) and a Proposal of removal. Subsequent notes say; "Tree is infested with borers and possibly termites, continual shedding of branches both live and dead, trunk partially infested by borers. 2 hanger branches present and ready to fall, many dead branches throughout canopy, has been pruned, overhangs two other properties, one owner was hit by falling branches sustaining a cut thumb, canopy is wide and so has a wind shear problem, roots invading sewerline and have caused blockage previously, dangerous tree from falling branches, see also QTRA assessment."
Following a series of annotated photos of deadwood, of the tree's canopy overhanging the common boundary, and of borer damage, but no discussion section, the 'arborist report's' conclusion said; "The subject tree is a very large Tallowood, Eucalyptus microcorys (Myrtaceae) which is over 60 years old. The tree is infested with trumpet vine Pyrostegia venusta (Bignoniaceae) (Fig. 1) which would affect the vigour of the tree, the canopy is also widely infested with beetle borers and possibly termites (Figs. 2-5). The borers have killed branches and many dead branches continually break off as well as the tree has brittle wood (Fig. 6). The continual falling branches as well as hanger branches ready to fall make this tree dangerous and unpredictable. The tree is clearly a danger to children who will be soon occupying (the applicant's property)."
The 'arborist report's' conclusion continues with; "The roots of the tree have invaded the sewerline and at least two times plumbers have had to be called to clear roots that were blocking the pipeline. The tree has become large and grown more quickly than usually because of it tapping into the underground sewerline below and being able to procure year long nutrients and moisture. For all of the above reasons, the tree should be removed."
The 'arborist report' next spoke to 'Additional data (added 29 August 2021)' which included photos, supplied by Mr Mildred, showing small twigs and branches which had apparently fallen onto the two properties over the prior 7 weeks, plus expanded views of the sewer diagram and 2009 - 2010 plumbing receipts which Mr Mildred had included in his application details (Exhibit B), and a pipecam photo from 2018 attributed to "Tony the Plumber", which perhaps came from Mr Lee. Considerable commentary is provided on the plumbing expenses incurred by Mr Lee in 2018-2019 and those incurred in 2009 - 2010 by the previous owner of the applicant's property.
Dr Hawkeswood's revised report of 30 August 2021 was included in Mr Mildred's 'Bundle of Supporting documents', which were lodged with the Court on 1 September 2021 along with the application. Even though Dr Hawkeswood was thus clearly aware that he was to be an expert witness in these proceedings, he has failed to acknowledge having read and agreeing to be bound by the Expert Witness Code of Conduct (Code of Conduct) in Sch 7 of the Uniform Civil Procedures Rules 2005.
Given his awareness of participation in the pending proceedings, failure to acknowledge the Code of Conduct does not release Dr Hawkeswood from his obligations to the Court, and I bring my own arboricultural expertise with which to consider his report's content.
The vine, misidentified as Pyrostegia venusta, would be having little negative impact as it was restricted to the tree's trunk and lower canopy. Repeated statements that the "Tree is infested with borers and possibly termites" are not substantiated by evidence. At the site inspection, it was clear that the health and vigour of the tree was sufficient for defensive kino flows to inhibit normal borer activity, and the trunk and branches displayed no indication of anything to the contrary. Photos of a few dead branches with saprophytic borer activity are not indicative of a generalised problem, but rather show a normal part of deterioration processes impacting some branches as and when they die.
I was not taken to any termite activity on site, nor saw any, nor was any evidence produced to substantiate past or present activity. Nonetheless, this claim was repeated throughout the 'arborist report'.
In accordance with the Code of Conduct, the role of the Expert Witness is to assist the Court, not to act as an advocate for their client. The plumbing evidence supplied by Mr Mildred and Mr Lee, and emotive commentary about its significance, should not be included in an independent 'arborist report'.
My concerns about the veracity of the report were magnified when I examined the Quantified Tree Risk Assessment (QTRA), which completed it.
This said; "The probability of more/additional branches falling from the Eucalyptus microcorys tree on persons or property is high. The tree overhangs two properties (dwellings) worth over $2 million dollars. The branches have already caused one hand injury to (Mr Lee). In addition, the roots have caused over $2000 damage repairs to the sewerline passing underneath the tree (there could be other instances of repair but no documentation is presently available). I have used the QTRA methodology (below) to assess the danger of this tree. Given that the tree is continually losing branches (borer and termite infestations) and the tree has a potentially weak branching trunk/branch structure and that there are 2 dwellings (property) that the tree could fall onto (as a major branch) as well as persons, the fact that roots are a significant problem to the sewerline, the probability of failure using the QTRA system is 1/1000. This is the red risk which is unacceptable, such that the risks should not be tolerated and the risk should be controlled. This control is tree removal because of the threat of dead branches, live branch fall, potential danger to property and people etc. For all of the above reasons the tree should be removed as soon as possible."
Being trained and experienced in QTRA, I find this analysis has relied on manipulated or absent evidence and its results are unreliable. The approximate two million dollar value of the dwellings is not relevant and should not be considered as there is no evidence suggesting or supporting that the tree has unstable anchorage in the ground, but it would only be total failure from uprooting that would render either dwelling at risk of serious (expensive) damage.
There has been no prior mention in the report that "the tree has a "potentially weak branching trunk/branch structure", rather, structure is ranked as Fair in the initial table of information. No evidence has been provided to support this claim, nor are there signs on the tree indicative of any failure of larger branches. Even in the extremely unlikely event that a major branch did fail towards either dwelling, even minor or moderate damage would be unlikely, particularly given how far the tree has been pruned back from Mr Mildred's dwelling.
An annotated photo provided to the Court by Mr Mildred (at Fig. 6 of the 'arborist report`) notes a branch that fell in 2019 was about 5 m long and 80 mm at the branch collar. No mention or evidence was provided of other larger branches, rather this one was highlighted because of its large size. All other photos provided show smaller branches, the majority of which are small twigs. As a result, Dr Hawkeswood's claim that "there are 2 dwellings (property) that the tree could fall onto (as a major branch) as well as persons" is baseless.
Even if one included consideration of the plumbing damage bill of over $2000 since 2009, given that risk assessment duration, though unspecified in this instance, normally covers a period of 12 months, annual financial risk for such repairs would equate to less than $200.
This small cost, combined with the evidence before the Court of branches that have fallen and those in the tree likely to fall, are all that a genuine risk assessment can be based on, and this cannot reasonably result, using QTRA, in a risk of 1/1000. Further, the only control contemplated or mentioned was tree removal.
Faced with this unsatisfactory situation, I turned my attention to Dr Hawkeswood's qualifications. He notes bachelor's degrees in Science (Hons) and Environmental Science from New England and Charles Sturt Universities respectively, and a PhD from AIM, BPI, IMHS, acronyms with which I'm unfamiliar. He cites "Postgraduate courses in Advanced Horticulture and Mycology/ Plant Pathology" but gives no indication of their provider or duration. He also claims to be an AQF8 Arborist, without noting the source of this qualification. To the best of my knowledge, the only location that this qualification is available is the University of Melbourne, which graduates are normally keen to highlight.
Specific arboriculture courses included are QTRA and Anatomy, Tree Biology and Risk Assessment run by Rinntech, both of which are normally one to three days' duration.
Overall, the lack of specificity in his curriculum vitae leaves me questioning the veracity of Dr Hawkeswood's qualifications, especially his claim to be an AQF8 Arborist. Without clarification and substantiation, his listed qualifications do not provide a basis for acting as an "Expert arborist". Combined with his use of absent and unsubstantiated evidence, and manipulation of same in his QTRA analysis, Dr Hawkeswood has not satisfied his duty under the Code of Conduct to provide an objective analysis of the facts related to the tree. His 'arborist report' is thus of little value and has not assisted either the Court or the applicant.
Returning to the guidance provided in McPherson with respect to injury, the risk posed by the tree based on its characteristics, any history of previous failures, and the circumstances of the site apparent at the time of the hearing should be deemed as low - moderate, but it is sufficient to justify intervention to reduce the risk, such that s 10(2)(b) is satisfied.
Only one element of s 10(2) of the Trees Act need be proved to engage the jurisdiction. If the jurisdictional test in s 10(2) is satisfied, s 9 of the Trees Act empowers the Court to make any order it sees fit to remedy, restrain or prevent damage to property or injury to persons. If orders are to be made, the Court must consider relevant discretionary matters in s 12 of the Trees Act.

Discretionary matters - s 12

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

The tree is located in the respondents' property within a few metres of the common side boundary (s 12(a)).
With respect to removal or pruning, the tree is protected by Council's Tree Management Policy (s 12(b)).
Past pruning of the trees has been extensive and excessive in terms of optimum tree health. Any removal of leaf cover by pruning, or any other means, reduces a tree's capacity to optimise photosynthesis. This reduces the tree's potential carbohydrate supply, which is necessary for a range of essential functions. Pruning should therefore not occur as part of 'normal' maintenance but should be undertaken only when necessary to achieve a required purpose (s 12(b2)).
Pruning is required in this case, though only to remove the majority of the vine, hanging dead branches and other deadwood above 20 mm diameter at the branch collars, subject to compliance with AS4373-2007: Pruning of amenity trees. This pruning would not ordinarily require permission from Council (s 12(b2)).
The tree contributes to privacy, protection from the sun, to landscaping, and to the amenity and scenic value of the respondent's land. The respondent has clearly advised that she values the tree (s 12(b3)).
Because of its flowering and fruiting characteristics, and considerable size, the tree could be expected to provide food and or shelter for local fauna, and thus would contribute to local biodiversity (s 12(d)).
Though Dr Hawkeswood noted the tree's landscape significance as low, this is unreasonable. This is a large, established specimen of a long-lived species, often used in streets and parks because of its strength and structural integrity, which is about 25 m tall and very conspicuous in the locality as a landscape feature. It thus has considerable intrinsic value to public amenity, notwithstanding that this has been reduced by the 2019 pruning (s 12(e) and 12 (f)).
Section 12(i) considers anything, other than the tree, that has contributed, or is contributing, to any damage or likelihood of damage, including any act or omission by the applicant and the impact of any trees owned by the applicant. That 'the tree was there first' is considered in this respect. When contemplating the purchase of his property about two years ago, it would have been obvious to the applicant that the tree was well established, that its canopy was extending over the property's rear yard, that it was not unlikely that branches may occasionally fall from the tree, and that maintenance would be required to ameliorate natural dropping of tree debris. In such a scenario, it is unreasonable to expect that the tree be removed or severely pruned to eliminate this debris, when the tree long predated the applicant's occupation.
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 (s 12(i)).

Conclusion

I have examined the tree and the site and have reached the following conclusions: 1. The tree is healthy and vigorous and appears to be structurally sound. No evidence of damage to the applicant's sewer pipes have been proven in satisfaction of the requirements of the Trees Act, and nor has the likelihood of such damage occurring in the near future. 2. The tree's canopy is holding a level of hanging and dead branches, sufficiently numerous and large for tree risk to be deemed low-moderate. As a result, s 10(2) of the Trees Act is engaged, and orders for intervention contemplated. 3. A report provided on behalf of the applicant by Dr Trevor Hawkeswood, dated 30 August 2021, failed to acknowledge adherence to the Expert Witness Code of Conduct in Schedule 7 of the Uniform Civil Procedures Rules 2005. This report was characterised by unsubstantiated claims, inclusion of extraneous plumbing evidence, and a QTRA risk assessment that lacked foundation to an extent that it was virtually fabricated. This report provided no benefit to the Court. 4. The tree provides a range of significant environmental services, but removal of larger deadwood will be ordered to lower risk associated with the tree, without compromising these attributes. Based on the judgment of 'Black', the applicant will be ordered to pay for the majority of the cost of such pruning works over his property. Should Mr Lee wish to undertake a similar arrangement with respect to deadwood overhanging his property, the orders will provide for him to do so.

Orders

The Court orders that: 1. Within 30 days of the date of these orders, the applicant and the respondent shall each secure and exchange one quotation from an AQF level 3 arborist with all appropriate insurances, for pruning the respondent's trumpet vine to a maximum height of 3 m above ground level, removing hanging branches and deadwood above 20 mm in diameter at the branch collar from the segment of the tree's canopy overhanging the applicant's property, and removing refuse from the works. 2. To facilitate such quotation, the applicant shall grant access to the respondent's chosen arborist for the purpose of organising such quote, pursuant to not less than 48 hours written notice from the respondent. 3. Within 60 days of the date of these Orders, the respondent shall undertake the pruning works in Order 1, using the services of one of the AQF level 3 arborists with all appropriate insurances, from whom the quotations were procured. Should one of the parties not provide a quotation in accordance with Order 1, the respondent shall contract the arborist who provided a quotation to complete the works. 4. Within 7 days after the completion of the works the respondent shall provide the applicant with a copy of an itemised paid invoice for the works. 5. Within 7 days after receipt of the paid invoice in Order 4, the applicant shall reimburse the respondent for a quantum of 70% of the cheapest of the two quotations, regardless of whether the respondent chooses to proceed on the basis of the more expensive quotation. 6. All works shall comply with AS4373-2007 Pruning of amenity trees and the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work 2016. 7. All works are to be completed during normal work hours. Should access be required into the applicant's property to undertake these works, or for removal of refuse, such right to access shall be granted, subject to the respondent providing the applicant at least 72 hours' written notice of the works. 8. Should Mr Lee wish to have the segment of the tree overhanging his property similarly pruned, he shall advise the respondent in writing within three days of the date of these orders, and shall be subject to Orders 1-7, with "Mr Lee" being substituted for "the applicant" in each of Orders 1-7.

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: 28 March 2022

At a glance

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Judgment (10 paragraphs)

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Cases Cited (13)

Cited By (2)