Owners Corporation Strata plan 56927 v Horner and anor

Land and Environment Court (NSW)|2012-06-01

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1COMMISSIONER:The application is made under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act). The applicant in these proceedings seeks orders for the removal a Norfolk Island Pine and a Eucalyptus microcorys (Tallowwood) growing on an adjoining property in Balgownie. The orders are sought on the basis that the trees could fail and therefore cause significant damage to property and injury to anyone present at the time. 2Orders are also sought for the payment of costs associated with the application. In this regard, Commissioners do not have the jurisdiction to award costs and a separate application by way of a Notice of Motion must be made to be heard by the Registrar or a Judge of the Court. 3The respondents dispute the applicant's contentions and generally do not wish to remove the trees.

Relevant background to the application 4According to the Affidavit of Mrs Maureen Sadler, a representative of the Body Corporate Committee, in October 2011 the committee resolved to apply to Wollongong City Council for permission to prune the trees, at the applicant's cost, in order to reduce the fallout of leaves and other material onto the applicant's property. A council officer, Mr Marc Fursey, inspected the trees in December 2011, and is alleged to have told the committee's representative that the pruning was not the problem but the Norfolk Island Pine was slipping down the embankment causing a retaining wall to crack. He also indicated that the eucalypt would essentially go the same way. These comments led to the applicant's concerns about the stability of the trees. 5In February 2012 council gave the applicant permission to prune selected overhanging branches and to remove deadwood from the trees, or alternatively, to remove them if the tree owner agreed. 6The applicant approached the respondents with an offer regarding financial arrangements for the removal of the trees but the respondents declined to accept it. 7The application under the Trees Act was then filed with the Court.

Jurisdictional tests 8In applications made under Part 2 of the Trees Act, the most important section to be satisfied is s 10(2). This states that the Court must not make an order 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. 9Given that the applicant is concerned about future damage, the guidance decision in Yang v Scerri [2007] NSWLEC 592 has determined that the 'near future' is a period of 12 months from the date of the hearing; a timeframe I consider appropriate in the circumstances. In regards to injury, the risk must be reasonably forseeable. The Court, with the expertsie it brings, makes this determination by assessing the facts and circumstances of the individual trees and the environment in which they are growing. 10If any of the tests in s 10(2) are satisfied, the Court must then determine what, if any, orders should be made under s 9 of the Act.

The hearing and evidence 11The trees were viewed from each property. Both trees are in their early mature stages and both are healthy. The Norfolk Island Pine has no obvious structural defects. The form of the Tallowwood suggests it was pruned or damaged early in its life. There is a dead stub in the area from which the first order branches arise, but there are no signs that this is likely to lead to failure in the foreseeable future. 12The respondents purchased their property about five years ago and believe the house was constructed in about 1976. It is not clear whether there have been any alterations or additions since. It appears as though the backyard of the property was levelled, perhaps when the house was built. The trees are at most contemporaneous with the dwelling, but given their size, I would expect them to be much younger. 13In the late 1990s, the applicant's property - comprising four villa units, was constructed. The completion date was 1998. Construction of the property necessitated excavation into the slope. The area closest to the trees may have been excavated by about one metre or so. A retaining wall was built between the two properties. That wall supports a metal dividing fence. On the unit below the trees, Unit 4, there is another secondary concrete block retaining wall which retains a garden bed. It is this wall that the council officer indicated was cracked. However, neither the retaining wall on the boundary, or the secondary wall, is subject to this application. 14The respondents' trees are now about 900 mm from the retaining wall on the boundary (to the north of the trees). In all other directions the root zones appear to be relatively unimpeded. 15Returning to the applicant's concerns, following the Court Directions Hearing on 16 April 2012, the applicant engaged Mr David Potts, a consulting arborist, to prepare a report on the stability and safety of the two trees and to make recommendations. That report is included in Mrs Sadler's affidavit. 16Notwithstanding the applicant's failure to observe Court Direction 14 on expert witnesses, leave was granted with the consent of the respondents, for the report to be accepted into evidence. Direction 14 requires anyone engaging an expert to prepare written or oral evidence on their behalf to ensure that the expert acknowledges the Expert Witness Code of Conduct in Schedule 7 of the Uniform Civil Procedure Rules 2005. These rules also require the inclusion of the expert's curriculum vitae in the report. 17Mr Potts formed his opinion based on assumptions made about the extent of the excavations, a graph extracted from AS 4970 - 2009 Protection of trees on development sites on the calculated/ hypothetical structural root zone (SRZ) of the potential dimensions of the trees, and examples of tree failures elsewhere in the local Illawarra region. He notes the proximity of the trees to the retaining wall to the north. 18His conclusions are that he does not consider the collapse of either tree to be imminent. However, he goes on to support 'pre-emptive' removal of both trees because he considers that as they grow they will become increasingly liable to windthrow, typically in a heavy rainfall - high wind event.

Findings 19Returning to the observations made during the hearing, I saw no signs of instability at the base of either tree that would lead me to conclude that the likelihood of whole tree failure is anything but remote; it is certainly not imminent or likely in the near or foreseeable future. 20In regards to the comments alleged to have been made by Mr Fursey, this falls into the category of hearsay and even though the Rules of Evidence don't strictly apply in these matters, little weight can be given to them, particularly as Mr Fursey was not present at the hearing. However, those comments go to explain the applicant's concerns. 21With respect to Mr Potts' report, he notes the restricted root zone of the trees on their northern side (i.e. to the retaining wall) and then makes some comments about the potential SRZ using the graphed theoretical calculation in the Australian Standard and its effect on tree stability. This use is beyond the intent of that graph and therefore little weight can be given to the conclusions that arise from it. 22When the applicant's land was excavated at least 14 years ago, the trees (if they were present) would have been much smaller with a more limited SRZ. The excavation appears to have had little if any impact on their health and there is no indication that the structural integrity of the root zone has been compromised. The available soil volume appears more than adequate to support and sustain the trees. 23The applicant is most concerned about strong winds from the south and west. There are no signs of any disturbance, or lifting or cracking of the soil on those sides of the trees (the tension side) that would indicate whole tree failure. The trunk of the Norfolk Island Pine has a slight sweep to the north; this is not uncommon in this species. In my view, this is not indicative of likely failure. 24 The applicant is also concerned about the combination of strong winds and wet soils. The respondent stated that during the very wet months earlier this year, the ground in the vicinity of the trees stayed trafficable despite the soil being clay. I was shown a silt trap to the south of the Norfolk Island Pine into which several sub-soil drains are connected. It appears as though the bed in which the trees are growing is drained. 25In the matter of Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29, Craig J at [62], considered that 'something more than a theoretical possibility is required in order to engage the power under the Trees (Disputes Between Neighbours) Ac 2006 to make an order to remedy, restrain or prevent damage [and in this case injury] as a consequence of a tree. 26In the case before me, I agree with Mr Potts' initial finding that the collapse of the trees is not imminent. However, I do not agree with his support for 'pre-emptive' removal. As stated earlier, there is simply no evidence that this is any more than a theoretical possibility. The use of examples of tree failures elsewhere has very little relevance to the facts and circumstances of this matter. Put simply, s 10(2) is not satisfied and the Court's jurisdiction to make orders for any intervention with the trees is not engaged. 27Therefore the Orders of the Court are: (1)The application to remove the trees is dismissed.

J Fakes 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: 02 June 2012

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