Pastars v Chhabra

The situation 4The hearing took place onsite. Neither Ms Pastars nor Mr Chhabra submitted arboricultural evidence so I rely on my own arboricultural expertise. 5The trees are both mature Sydney Blue Gums (Eucalyptus saligna) more than 20 metres tall with stems a metre or more in diameter. Both trees are entirely on the respondent's land. Tree 1 is close to the front boundary and Tree 2 is immediately behind it. A driveway passes between the trees and the common boundary with the applicant's land. 6They were already large established trees when Ms Pastars moved into her property around 30 years ago. Mr Chhabra has owned his property since around 2004, although the property was in his family for some years prior to that. He says his property was empty for many years until he rented out around 2009 or 2010. 7Both trees appear to have relatively good vigour, but it is their form and structure that is problematic.

Tree 1 8Tree 1 has a relatively upright form but, where there is no competition for light to its north and east, many overextended limbs have developed - long limbs with weight at their ends and poor taper along the length of the limbs. These overhang the Pacific Highway and both the applicant's and respondent's properties. One limb in the upper canopy appears to have some damage on its upper side, but observations of this from the ground were limited. 9A large limb fell from this tree around Christmas 2008, blocking the highway, bringing down power lines and causing damage to the applicant's property including the fence. The remaining stub indicates that this limb where it failed was around 400 mm in diameter. The applicant says the limb fell on a calm night. The SES attended. The applicant says there was risk of electrocution from the fallen power lines. 10It seems likely that any one of the overextended limbs may fail, possibly causing damage to the applicant's property in the near future, or injuring a person on either of the properties or on the road or footpath. The applicant says that, during afternoon peak hour, traffic is stopped beneath the tree's crown.

Tree 2 11Tree 2 has many overextended limbs. Many of these limbs overhang the dwellings on the applicant's and respondent's properties. The crown is somewhat unbalanced due to the proximity of Tree 1 and its competition for light. Furthermore, the central stem of Tree 2 broke or was cut many years ago, leaving a dead stub at the top of the stem. The limb immediately below this stub has since become the dominant limb, extending to a considerable height while still growing toward the respondent's dwelling. Its union with the stem seems less than completely sound, as decay appears to be spreading down the dead stub remaining at the top of the stem. The length and weight of the limb, and its uncertain attachment, lead me to believe that there is a risk of it failing in the near future. 12Below that limb described above is the remaining stub from the large limb that failed in September this year. At its point of failure the limb was perhaps 400 mm in diameter. As the limb fell, it tore down the stem, removing bark and some wood and therefore leaving a sizeable scar on the stem. The limb damaged the brick wall on the common boundary, built by the applicant, as well as some other of her property and brought down power lines. Again, the applicant says there was risk of electrocution from the fallen power lines. 13There is also a risk of other overextended limbs failing in the near future. The failure of those over the respondent's property would be likely to cause damage to her property; any failures may cause injury. 14After both significant incidents of limb failure, in 2008 and in September this year, Ms Pastars notified Mr Chhabra, whose property was tenanted and who lived elsewhere. She reported the severity of the failures, the extent of damage and asked that he take some action, such as having the trees assessed, as she was concerned about more limbs falling from the trees. 15There seems to be no dispute in general between the parties regarding the assumptions and observations described above. 16The applicant has pursued the cost of repairs (boundary fence, paving and so on) through the respondent's insurer and her own insurer. There is some ongoing dispute about the likely cost of repairs, however Ms Pastars has not applied to the Court for any orders regarding this damage other than the $400 excess, to which I will return shortly.

Section 12 matters 17Having considered the matters at s 12 I note that the relevant issues to my determination can be summarised into two groups: the contribution made by the trees (ss 12(b3) through 12(g)) and anything else, including acts or omissions of either party, that may have contributed to the situation (ss 12(h) through 12(i). The impact of any pruning on the trees is also a matter to be considered. 18I find that the trees are locally indigenous species with large crowns, and contribute significantly to local amenity, both to the properties owned by the parties as well as to the broader locality. They contribute to local environmental values, attracting birds and other wildlife; they provide shading and therefore cooling in summer. Considering their contribution, if the trees can be retained with reasonable input, this would seem desirable. 19Ms Pastars has taken what action she can. She has notified the owner of the trees when they have caused damage to her property. She has requested that he take steps to ensure they don't cause further damage or injury. 20Mr Chhabra appears to have had little regard for the potential risk posed by the trees, despite being made aware of the potential consequences of any limbs failures following the 2008 incident. Indeed, his lack of any attention to the trees could reasonably be regarded as a contributing factor to the most recent damage. Had he, as could be reasonably expected following the 2008 incident (remembering that it blocked the Pacific Highway) had the trees assessed by a professional arborist, it is likely that recommendations for pruning, at least, would have followed. Had the trees been assessed and pruned for risk reduction it is at least possible, and in my mind probable, that the 2013 limb failure would not have occurred.

Findings regarding compensation 21Considering the above paragraph, it is therefore reasonable that Mr Chhabra compensate Ms Pastars for her $400 insurance excess, and such an order will be made below.

Findings regarding the trees 22As I have found above at (10), (11) and (13) there is a risk that the trees will cause damage to the applicant's property in the near future or injury to a person. 23Removal from Tree 2 of its uppermost limb near the damaged top of the stem, along with removal or reduction pruning of other overextended limbs, would result in a loss of more than half of the tree's crown. This would leave an unattractive tree with a short useful life expectancy. Considering this, as required by s 12(b2), it would be more appropriate to order removal of this tree rather than pruning. 24Tree 1, on the other hand, could be pruned to reduce the risk of limb failures while retaining sufficient crown for the tree to remain viable. Therefore orders for pruning this tree will be made. I note that these are large trees and observations have been limited to a view from the ground. Further orders will be made for Tree 1 to be thoroughly inspected by an arborist while it is being pruned, with a report to be provided to both parties. 25The resulting orders of the Court are that: 1.The application is upheld in part. 2.The respondent is to pay the applicant $400 within 14 days of the date of these orders. 3.The respondent is to engage a suitably qualified arborist (minimum AQF level 3) with appropriate insurances to remove Tree 2. 4.The respondent is to engage a suitably qualified arborist (minimum AQF level 3) with appropriate insurances to prune Tree 1 to: reduce where possible, or remove, overextended limbs over the applicant's property and over the Pacific Highway, taking no more than 20% of the tree's live crown mass; remove deadwood greater than 40 mm in diameter; and remove broken branch stubs. 5.While carrying out the works in (4) the arborist is to carry out a thorough aerial inspection of Tree 1 and is to remove any limbs that are found to be hazardous. A brief written report is to be provided to both parties by the arborist within 14 days of the works. Any cost associated with this is to be at the respondent's expense. 6.The works in (3), (4) and (5) are to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry and AS 4373 Pruning of Amenity Trees. 7.The works in (3), (4) and (5) are to be carried out within 30 days of the date of these orders. 8.The respondent is to give the applicant four days' notice of the works in (3), (4) and (5) and must notify the applicant of any impacts the works will have on her power supply. 9.The applicant is to provide all access necessary for the works to be carried out during reasonable hours of the day. 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: 16 December 2013