2007] NSWLEC 592
Texts Cited: Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work (2016)
Category: Principal judgment
Parties: David Rizotto (Applicant)
Helen Drummond (First Respondent)
Rowan Drummond (Second Respondent)
Representation: D Rizotto, self-represented (Applicant)
H Drummond, self-represented (First Respondent)
R Drummond, self-represented (Second Respondent)
File Number(s): 2022/61514
Publication restriction: Nil
[2]
Background
COMMISSIONER: The applicant, David Rizotto, shares a side property boundary in Concord West with the respondents, Helen and Rowan Drummond ('the Drummonds'). The applicant's driveway runs east to west along the common boundary to a concrete apron, behind which Mr Rizotto has constructed a large garage/granny flat at the rear of his property. The Drummonds' property, located south of the applicant's property, has a back lawn flanked by bamboo, which provides privacy from the adjacent train line.
There is a large Jacaranda mimosifolia (Jacaranda) ('the tree') growing about three metres (m) from the common boundary in the respondents' rear yard, which shed one of its four major branches in 2018. On 9 February 2020, a second major limb fell from the tree across the respondents' back yard, prompting Mr Rizotto to text Mr Drummond, requesting tree removal. Soon after, in a storm on 18 February 2020, the applicant says many branches were shed into his property. Within his application documents, Mr Rizotto provided photographs (photos) of both February 2020 shedding incidents and a screen shot of his text of 10 February 2020.
The Jacaranda is growing with a lean of about 10 degrees towards the applicant's land. Its main residual major branch, which is about 9 metres long and about 350mm at the branch collar (where it joins the trunk), is growing towards and above the applicant's concrete apron and rear garage. Mr Rizotto was concerned about property damage and risk of injury to his family.
Mr Rizotto contracted an AQF level 5 qualified arborist, Peter Brooks, to assess and prepare a report on the tree, which he provided to the respondents on 28 February 2020. Mr Brooks conducted a risk assessment using the International Society of Arboriculture (ISA) TRAQ methodology, finding that failure of the branch was imminent, consequent property damage to target one, the garage, was very likely, and the resultant tree risk was deemed high. Risk of injury in the "recreational areas", the second target, received a rating of extreme.
In March 2020, the respondents had the Jacaranda pruned, but not removed. Mr Brooks texted the respondents on behalf of Mr Rizotto, reiterating that the Jacaranda required removal and that the pruning undertaken did not adequately reduce tree risk. The applicant says neither he nor Mr Brooks received a reply.
Having been advised by City of Canada Bay Council (Council) that this was a civil matter between neighbours, where Councils rarely intervene, Mr Rizotto attempted to organise mediation with the Drummonds through a Community Justice Centre (CJC) in mid-2021. Once again this was unsuccessful, and the applicant included copies of correspondence with the CJC, the third of which notes a reply from the respondents on 22 July 2021 confirming their unwillingness to participate in mediation.
On 18 November 2021, excavation was undertaken close to the tree by the Drummonds, apparently to repair pipe damage. Mr Rizotto included a copy of an email he sent the respondent, expressing heightened concern about tree failure, but again he apparently received no reply.
As a consequence, Mr Rizotto made an application pursuant to s 7 of Pt 2 of the Trees (Disputes between Neighbours) Act 2006 (the Trees Act), to remedy damage that the trees have allegedly caused, are causing, or are likely to cause in the near future, and risk of injury.
While the Jacaranda is the applicant's most urgent concern, Mr Rizotto says the bamboo is growing under the boundary fence and across the boundary, and that culms are emerging at the side and rear of his garage/granny flat. He seeks a barrier to be erected to prevent this occurring.
[3]
The hearing
The hearing was conducted onsite on 25 May 2022. Both parties were self-represented.
The orders (in summary) proposed by the applicant are:
1. Remove Jacaranda tree (Attachment 1 of 2).
2. Install barrier to prevent incursion of bamboo into applicant's land from respondents' land (Attachment 2 of 2).
The respondents advised that they had now received a report confirming the tree's lack of structural integrity and had organised for contractors to remove the tree as soon as possible. Mrs Drummond rejected the applicant's claim regarding encroachment of bamboo in both her affidavit of 11 May 2022 and at the commencement of the hearing, on the basis that it was not raised as an issue previously. It is not unusual for supplementary issues to be added to applications. Provided the applicant has satisfied jurisdictional requirements in ss 8 and 10(1) of the Trees Act, the bamboo's inclusion in the application is sufficient basis for it to be addressed.
[4]
Jurisdictional requirements and discretionary matters
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 of the Trees Act, which states:
(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.
The applicant provided evidence that the requirement under s 8(1) of the Trees Act which requires an applicant to serve notice to the respondent more than 21 days prior to the proceedings, has been satisfied.
He has also satisfied s 10(1)(a) of the Trees Act which requires an applicant to make a reasonable effort to reach agreement with the owners of the land on which the trees are situated. Copies of correspondence in the application include attempts to resolve the dispute directly with the Drummonds over a protracted period, and recourse to a CJC for assistance.
The next major test is posed by s 10(2) of the Trees Act, which 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.
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 a number of discretionary matters in s 12 of the Trees Act.
[5]
Damage and injury caused by the tree
In a report to the Drummonds dated 26 April 2022, Catriona Mackenzie, an AQF level V arborist of Urban Forestry Australia, notes that the connection of the east facing stem, which supports the remaining natural crown of the tree to the trunk, "is severely compromised by decay and separation of wood tissue", and this tree "has structural issues that have become increasingly serious as it enters the late mature phase of its life". She says that "the overall structural condition of the tree is considered to be poor", and advises that tree removal is the most practical way to manage the risk.
My site inspection of the tree confirmed that the applicant's concerns were appropriate. The tree is structurally compromised by deep bark inclusions between main branches and a high level of exposed wood decay progressively breaking down wood strength.
As a result, I am satisfied that, without intervention, the tree is likely to fail and cause damage in the near future, where, in a guidance decision published in Yang v Scerri [2007] NSWLEC 592, in relation to damage, as a rule of thumb, the 'near future' is deemed to be a period of 12 months from the date of the determination. As a consequence, s 10(2)(a) of the Trees Act is engaged.
I am also satisfied that the tree represents a genuine risk of injury, in both the applicant's and the respondents' properties, and thus s 10(2)(b) is also engaged.
[6]
Damage caused by roots
Mr Rizotto acknowledged that bamboo was growing in the rear yard when his family initially occupied their property. It is rhizomatous bamboo which readily spreads by root extension just below the soil surface, from which new vertical culms (stems) grow. He noted having excavated and removed the bamboo on his land in conjunction with his concreting works and construction of the rear garage/granny flat. He subsequently covered the exposed ground near the common boundary with plastic to prevent regrowth but, at the site inspection, bamboo rhizomes were observed when the plastic sheets were lifted.
The applicant has made no attempt to excavate along the fence line to prove that this bamboo was originating in the respondents' garden. In Stevens v Russell [2016] NSWLEC 1233 at [41], Fakes C notes that "it is a common assumption that the mere presence or proximity of a tree is sufficient to conclude that the tree is the cause of the damage. It is not. It is necessary to find evidence to substantiate the assumption that the tree has caused the damage. In the case of alleged root damage, some excavation is usually required".
Such excavation is necessary as there is a reasonable likelihood that the bamboo emerging on the applicant's land may originate from small fragments or cuttings residual from his excavation, instead of or as well as from rhizomes growing from the respondents' property. As noted in Mrs Drummond's affidavit, whilst onsite I noticed that bamboo was also growing on railway land at the rear of both parties' properties. Therefore, in the absence of excavation exposing a definitive source, is it is reasonable to view this bamboo as both parties' problem.
Unsurprisingly, considering the privacy and aesthetic contributions the bamboo provides, the respondents intend to retain it. It is, therefore, also reasonable to contemplate orders to prevent damage in the near future resulting from bamboo incursion into the applicant's land.
The bamboo clump is quite vast, with a spread of about 15 metres along the rear boundary and a depth of about four metres from the back fence. Just as probably occurred when Mr Rizotto excavated his bamboo, the extensive plumbing excavation that was undertaken near the tree is likely to have severed live bamboo rhizomes into pieces, many of which may establish roots and spread.
Though the Drummonds had recently cleared some bamboo and they note performing regular maintenance, this does not extend to restraining bamboo potentially spreading into the applicant's land.
In considering bamboo incursion, in Dias v Vaswani [2011] NSWLEC 1274 ("Dias"), Galwey AC cites Preston CJ in Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 at [165] to [166] which discussed the concept of 'corporeal' and 'incorporeal' components of 'hereditaments' of land; 'incorporeal hereditaments' being certain intangible rights and 'corporeal hereditaments' including the land itself and things attached to it such as buildings and other fixtures as well as plants growing in it. Preston CJ considered that the reference in s 7 of the Trees Act to "property on the land" may be a reference to 'corporeal hereditaments'. This interpretation has been adopted consistently in determinations of applications under s 7 Pt 2 of the Trees Act. In Dias at [18] Galwey AC determined that the bamboo had damaged the lawn in that the bamboo prevented the lawn being used for the purpose for which it was intended.
In this case, I am not satisfied on the evidence that the respondents' bamboo has yet caused damage to the applicant's property, but I am satisfied that if left unchecked, it will cause damage in the near future to the applicant's flat storage area near the common boundary, and "prevent the area being used for the purpose for which it is intended". As a result, s 10(2)(a) of the Trees Act is again satisfied.
By its nature, rhizomatous bamboo often causes disputes between neighbours. Where poisoning is employed for removal, follow up re-application is normally needed. Where bamboo is retained, limiting its spread is difficult and even with a root barrier installed, ongoing monitoring is required.
In this situation, good results may be achieved with a thick continuous plastic barrier in conjunction with heavily compacted naturally occurring clay soil. The continuous barrier shall be of a proprietary brand and produced for this purpose, at least 600mm tall and 3mm thick. The length of the barrier will be equivalent to the distance from the rear fence to the front of the applicant's garage/granny flat, plus a further 3m to allow for a return at each end, southward back into the respondents' yard.
The respondents shall excavate a trench, approximately 550mm deep, for two metres along their rear boundary adjacent to the common boundary, then along the common boundary at a uniform distance of at least 200mm from the boundary, to a point in line with the front (eastern end) of the applicant's garage/granny flat, where the trench turns southward for a further one metre.
The ideal tool for this work is a ditch witch to cut a neat trench about 150mm wide, but care must be taken to avoid pipe damage. If pipes are encountered, their surrounds must be manually excavated of soil, as the quality and resilience of the barrier sealing around such pipes is integral for success.
Should cutting be required to bridge over pipes, the barrier should be carefully measured and accurately cut to minimise any gaps. It should be carefully positioned in the trench firmly up against its northern wall, closest to the boundary so that 50mm uniformly protrudes above the surface, to provide for ongoing monitoring. Any gaps around pipe junctions should be filled with a strongly adhesive filler.
Once the barrier is in position, the exclusion or at least minimisation of oxygen from the trench is crucial for success. This may be achieved by compaction of clay sub soil down into the trench and up against the southern side of the barrier. Heavy compaction of soil at the base of the trench is important to prevent root escape below the barrier, followed by progressive compaction of layers of sub soil right up to the surface. As roots require oxygen for growth, the inhospitable environment for root growth resulting from the compacted clay filled trench, operates in conjunction with the physical plastic barrier.
[7]
Section 12 considerations
Contemplation of orders following satisfaction of s 10(2) of the Trees Act requires the Court to consider matters under s 12 before determining an application made under this Part.
Subsection 12 (b2) considers the impact any pruning (including the maintenance of the tree at a certain height, width or shape) would have on the tree. I concur with both arborists that pruning is not an appropriate option for the Jacaranda, in light of its lack of structural integrity.
Subsection 12 (b3) considers the tree's contribution to privacy, landscaping, garden design, heritage values or protection from the sun, wind, noise, smells or smoke, or the amenity of the land on which it is situated. While the tree provides many such contributions which will be lost after its removal, the tree's high likelihood of failure, and potential consequences arising, render it an unacceptable risk for retention. The important privacy and aesthetic contributions the bamboo provides the respondents can be maintained.
Section 12 (h)(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 …".
In Black v Johnson (No 2) [2007] NSWLEC 513 at [15] ("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.
[8]
Conclusion
I have inspected the trees and the site and reached the following conclusions.
1. While the respondents gave various explanations for the extended period prior to seeking expert advice and appreciating the applicant's reasonable concerns about the tree, this delay in addressing the tree issue has resulted in a protracted period of avoidable angst for the applicant and his family.
2. The tree shall be removed at the respondents' expense. I understand a date of 10 June 2022 had been organised, but allowance will be made in the orders for delays with contractor availability.
3. A root barrier shall be installed in the respondents' property, per guidelines in this judgment, to restrict future bamboo spread from the respondents' property onto the applicant's land.
4. Based on the guidance from Black, applicable when the tree (in this case, the bamboo) was growing in-situ prior to the respondents' occupation, and the fact that the applicant failed at the hearing to establish that the bamboo currently on his land had originated on the respondents' land, the financial burden for the root barrier installation, shall be divided evenly between the parties.
5. While the orders will include a protocol for promptly addressing any bamboo which 'escapes' onto the applicant's land, a regular monitoring and maintenance burden will rest on the respondents, presuming they wish to avoid ongoing dispute over the bamboo.
[9]
Orders
The orders of the Court are:
1. The application is granted.
2. Within 45 days of the date of these orders, the respondents shall, at their expense, employ AQF level 3 arborists, with all appropriate insurances, to remove the Jacaranda tree to near ground level, poison stump and remove all refuse.
3. Within 60 days of the date of these orders, the respondents shall, at their expense, employ AQF level 3 arborists, with all appropriate insurances, to install a 600mm heavy plastic continuous proprietary root barrier, at least 3mm thick, to a depth of 550mm with 50mm left protruding vertically above the soil surface, from the back fence to a point on the common boundary which intersects with a north-south line cast from the eastern end of the applicant's garage/granny flat roof. The barrier shall include a 2m continuous extension southward, further back into the respondent's property along the back fence at the western end, and a 1m continuous extension southward at the eastern end. Clay subsoil used to refill the trench should be progressively compacted as heavily as possible into the trench, and up against the barrier.
4. To facilitate the works in Order 3, each party shall procure up to two quotations. The apportionment of the cost for these works shall be based on the cheapest of these quotations, subject to the chosen arborist satisfying the qualification and insurance requirements of the said order. Should it be required, each party shall provide the other with access to their properties for the purpose of gaining said quotations, upon receipt of at least 48 hours written notice.
5. Within 7 days of the completion of the works in Order 3, the respondents shall provide the applicant with a copy of an itemised paid invoice for the works.
6. Within 7 days after receipt of the paid invoice in Order 5, the applicant shall reimburse the respondents for a quantum of 50% of the cheapest of the acceptable quotations from qualified, insured arborists, regardless of whether the respondents chose to proceed on the basis of a more expensive quotation.
7. Should any bamboo roots or culms subsequently protrude through or under the common boundary, the applicant shall notify the respondents in writing, and the respondents shall remove and poison said bamboo culms within 21 days of notification by the applicant.
8. Where access is required to complete these works, the applicant shall provide access to the respondents, or contractors employed by the respondent, who have all appropriate insurances, upon receipt of no less than 48 hours written notice of date and approximate time of works.
9. All works shall comply with Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016.
10. All works shall be completed during normal work hours.
[10]
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: 19 August 2022