SGCH - St George Community Housing v Moffitt - [2019] NSWLEC 1621 - NSWLEC 2019 case summary

Land and Environment Court (NSW)|2019-11-01

The application

SGCH - St George Community Housing ('the applicant') has applied to the Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) ('the Trees Act') seeking orders relating to a tree overhanging a property they manage in Loftus. After their original application included no specific proposed orders, they filed a Notice of Motion to amend the application to include the following orders:

Orders for annual aerial inspection of the tree and pruning to remove deadwood and hazardous branches
Annual inspection of the tree for termites
Annual report of the inspection to be provided to the applicant
All of the above at the respondents' cost.

Jeff and Dannielle Moffitt ('the respondents') own the adjoining property on which the tree grows. They felt aggrieved by the process prior to the hearing - they did not receive notice of a telephone hearing where the application was amended. Nevertheless, their case has not been harmed and they have had sufficient time to respond to proposed orders and any evidence. They propose alternative orders similar to the applicant's orders above for annual inspection and maintenance of their tree, but at the applicant's cost.

Does the applicant own the property?

The onsite hearing

The hearing took place onsite, allowing observations of the tree and both properties. With Mr Landro were two representatives of St George Community Housing. The Moffitts had engaged arborist Stephen McLoughlin, who gave evidence at the hearing. I also bring my own arboricultural expertise and experience to the matter.

Background

The respondents have lived at their property for some time. At first, the neighbouring property had a single dwelling. The applicant purchased the neighbouring property, demolished the dwelling and developed a facility with five units for residents requiring care. The building covers most of the property and is partially beneath the tree's crown.
In December 2018 and January 2019, limbs fell from the tree, causing damage to the boundary fence, raised garden beds on the applicant's property and the roof of the applicant's building. Roof repairs were carried out, but the applicant does not claim any compensation.

Framework for this decision

Before the Court can make any orders, s 10(1)(a) of the Trees Act requires that I be satisfied that the applicant has made reasonable effort to reach agreement with the respondents.
Then, s 10(2) of the Trees Act requires that I be satisfied that the tree 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. If satisfied of this test, I must consider a range of relevant matters set out at s 12 before making appropriate orders to remedy, restrain or prevent the damage, or to prevent injury.

The tree

The mature Scribbly Gum (Eucalyptus haemastoma) ('the tree') stands in the Moffitts' rear garden between a concrete driveway and the common boundary they share with the applicant. Approximately 19 metres tall with a stem diameter of around 80 cm, its broad crown, 16 metres or more across, extends above the applicant's property for approximately 8 metres beyond the boundary, overhanging the building which is 4 metres from the boundary. Its crown is not as full and dense as a healthy tree of this species, and contains some dead branches, broken branches and a branch with a crack in it.
The tree's stem has a slight lean toward the applicant's property. Mr McLoughlin expressed some concern about this. He wondered if concrete on the Moffitts' land near the base of the tree was lifted by the tree's lean increasing and its roots lifting. To my eye, it appeared that the tree has grown like this and the raised concrete is a result simply of buttress root growth pushing up the concrete. There was no sign that the tree has moved in the ground or that failure of its root plate is likely.

The applicant has made reasonable effort

After branches fell and caused damage, the applicant notified the respondents of their concerns via email. The applicant lodged an application for tree works with Sutherland Shire Council but did not have the required owners' consent. The applicant requested mediation and offered to pay for half the cost of works. I am satisfied that the applicant's efforts to reach resolution were reasonable.

The tree has damaged the applicant's property

The respondents do not dispute that branches fell from the tree, damaging the applicant's roof, raised garden beds and the boundary fence. Considering the presence of dead and damaged limbs above the applicant's property, it is likely that the tree will cause further damage in the near future. I am satisfied that the tree has caused, and is likely in the near future to cause, damage to the applicant's property, so I can make orders for the tree after considering the matters at s 12 of the Trees Act.

Consideration of relevant matters

The tree is close to the common boundary. Its crown overhangs the applicant's residential building by approximately 4 metres, as well as the area between the building and the common boundary containing raised garden beds for use by residents. Further limb failures are likely to damage the building, garden beds or the fence. Mr Landro submitted that the risk of injury is the applicant's highest concern; apart from the residents, carers are often in the area beneath the tree.
To the best of my knowledge, the tree's owners would normally require permission from Sutherland Shire Council to remove the tree. When determining tree removal applications, Sutherland Shire Council considers the species of tree, safety of people, proximity to buildings, habitat and environmental aspects, and the tree's contribution to scenic and visual qualities. Approval would not be required under the Native Vegetation Act 2003 (NSW).
Pruning the tree to remove deadwood and broken or damaged branches, and to reduce crown extension above the applicant's building, would not adversely affect the tree.
The tree provides shade and cooling; it contributes to the amenity of the Moffitts' property. There is no evidence that it has any historical, cultural, social or scientific value. It contributes to the local ecosystem by virtue of habitat provided within its crown. Being a tall mature tree, it contributes to the natural landscape and to the scenic value of the Moffitts' land and adjoining properties. It can be seen from the street, so it contributes to public amenity. There is no evidence that the tree's presence, or its removal, would affect soil stability, ground water or other natural features.

Has the applicant contributed to the situation?

The Moffitts submitted that the applicant's own actions have led to the tree damaging the applicant's property. Prior to any development, branches may have periodically fallen from the tree, but they were smaller than the branches that fell more recently. Mr McLoughlin observed the tree during early stages of the neighbouring development. He stated that branches have always fallen from the tree, but prior to development they were not large branches.
The Moffitts argued that the applicant's actions that contributed to or caused branch failure, and the damage that resulted, include:

Choosing to construct a residential building on a large lot close to the boundary and beneath a tall neighbouring tree;
Failing to adequately protect the tree's root zone within the applicant's property during development, and allowing roots to be damaged;
Positioning concrete pumping equipment within the crown of the tree and directly damaging branches.

The Moffitts provided photographs showing the lack of tree protection during the development. It was only after they contacted Sutherland Shire Council that any form of protective fencing was erected, but even that was inadequate. Their photographs also showed concrete pumping equipment within that part of the tree's crown where the limbs recently broke and fell, causing damage, and where another cracked limb can be seen.
In Black v Johnson (No 2) [2007] NSWLEC 513 ('Black') the Commissioners established a Tree Disputes Principle at [15], which I include here. "Tree Disputes Principle The existence of a tree prior to the construction of a structure which has subsequently been damaged by the tree is not a matter likely to be taken into consideration on the question of whether or not some order should be made for interference with or removal of that tree or other remedial work. On that question, the seriousness of the damage and any attendant risks are the primary matters for consideration. If interference with or removal of the tree or other work is warranted because of the extent of the damage the tree has caused or risks now posed by the damage, the fact that the tree was already growing in the vicinity at the time the structure was built is a matter which may be relevant and appropriate to take into account on the question of who should undertake any work and/or apportionment of the cost of such work. However, it will also be relevant to consider whether or not the tree was self-sown or was planted. If it was planted, consideration will need to be given to the appropriateness or otherwise of: • the type of tree planted; and • the suitability of the location in which it has been planted. Equally, it will be relevant to consider whether the choice of location for the structure was unnecessary or avoidable or, on the other hand, if it would have been an unreasonable constraint on the development potential of the site had the existence of the tree limited that potential."
Mr Landro argued that there was no evidence of the applicant's development contributing to branch failure or subsequent damage. Referring to the principle in Black, Mr Landro argued that the development of the applicant's property was reasonable, and building further from the tree would have been an unreasonable constraint for the applicant. The size of the building necessitated its proximity to boundaries, and in fact the building's setback near the tree was greater than setbacks elsewhere. The Moffitts opined that there were many large properties in the vicinity when the applicant purchased, and another could have been found without any large trees nearby.
Mr Landro submitted that: the applicant had protected the tree's roots with temporary fencing; there was no evidence of significant roots being damaged; there was no evidence that any impacts within the root zone had led to limb failures. The development was certified as compliant after completion.
Mr Landro submitted that concrete pumping equipment in the tree's crown had not damaged any branches.
Mr Landro submitted that the tree's history of branch failure indicates there is an ongoing risk that must be managed. Apart from the two recent branch failures, branches had failed earlier, prior to development of the applicant's property.
Mr Landro pointed out that the arborist, Mr McLoughlin recommended removal of the tree, and that Mr McLoughlin said that limbs might fall anyway, regardless of the development. Mr Landro argued that it is usual for the tree owner to pay for works. For instance, in Green v The Owners - Strata Plan No 16846 [2019] NSWLEC 1500 ('Green'), where the applicant's dwelling was built in close proximity to, and beneath, the respondent's tree, the respondents were ordered to pay for the tree to be pruned. In Grant v Zhao [2019] NSWLEC 1387 ('Grant'), I ordered the respondents to pay for tree removal and pruning works.
I find that the applicant's actions have contributed to branch failures that caused damage, and to the risk of further limb failure in the near future. The respondents' photos show a concrete boom pump within that part of the crown where branches have failed and where damaged branches remain. The crack in a branch remaining in the crown appears to be the result of physical damage. Contact from the boom pump is the most likely cause of injury to those branches. From the photos alone, it is clear that the builder did not take due care at the time to protect the tree.
Photographs showing the lack of ground protection within the tree's root zone substantiate the notion that the builder did not satisfactorily protect the tree. Although I accept that impacts within the root zone have, to some extent, adversely affected the tree's condition, I cannot be satisfied that this led to branch failure. However, I am satisfied that direct damage to branches did lead to their failure. This differentiates this matter from Green, where no direct nexus between building works and the tree's condition was found. Similarly, in Grant, the applicants did not contribute to the condition of the trees or the likelihood of branch failure.
By contacting Sutherland Shire Council several times during the neighbouring works, the Moffitts did what they could to prevent damage to their tree.
I also find persuasive the respondents' submissions regarding the applicant's choice of property and location for building their facility. While the applicant argued that a greater setback from the tree would have unreasonably limited site development, they chose to purchase this site with the neighbouring tree, when other sites might have been available to them.
By choosing to build their facility adjacent to the respondents' tree, and allowing machinery to damage the tree's branches, the applicant's actions have contributed to recent damage to their property, and to the risk of future damage to their property, resulting from branch failure. This is a relevant consideration in determining, as per the principle in Black, "…who should undertake any work and/or apportionment of the cost of such work."

What orders are appropriate?

The applicant's amended application included proposed orders for annual inspections and pruning of the tree, after the original application did not specify any orders. At the hearing, Mr Landro said the applicant would prefer removal of the tree, despite the proposed orders in the application. He pointed out that it was still open to the Court to find that removal was the appropriate action and to order this. He said that, if the Court does not order removal, the applicant intends to re-apply to the Court seeking orders for removal.
I am not convinced by Mr McLoughlin's recommendation that the tree should be removed. Apart from the damaged branches remaining in the crown, the tree has no major structural defects. A wound that is visible in the upper stem shows no signs of major decay and appears to be surrounded by sufficient sound wood. Mr McLoughlin's reasons for recommending removal sprang from his view that the tree is not viable in the long term. He did not say what he meant by the long term and did not demonstrate that the tree is likely to die or fall over in the near future. I find that the tree is suitable for retention, and pruning can sufficiently minimise the risk of branch failure.
The applicant proposed orders for the tree to be inspected for termites. There is no evidence that termites have affected the tree's structural integrity, so I will not make orders for any termite inspections.
The applicant's actions have contributed to the need for pruning the tree, so they will pay for the first instance of pruning. Follow-up pruning should occur 12 months later to address any changes that might occur in that time. Being more in the scope of ordinary maintenance, the respondents will be responsible for organising and paying for the second instance of pruning. Beyond this, the applicant and respondents can monitor the tree and take any appropriate action as required.

Orders

As a result of the foregoing, the Court orders: 1. Within 60 days of the date of these orders, the applicant is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances to prune the Eucalyptus haemastoma on the respondents' property near their common boundary to: 1. Remove deadwood greater than 30 mm diameter; 2. Prune broken or damaged branches back to suitable lateral branches or, if necessary, back to their branch collars; and 3. Reduce the crown extending above the applicant's property by no more than 10% total crown mass. 1. All pruning works ordered above must be carried out in accordance with AS4373:2007 Pruning of amenity trees and the 2016 Safe Work Australia Guide to managing risks of tree trimming and removal work. 2. The applicant is to give the respondents 7 days' notice of the works ordered above and must provide the respondents with a copy of the arborist's public liability insurance. 3. The respondents are to allow any access required to complete the works ordered above during reasonable hours of the day. 4. During February 2021, the respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances to prune the Eucalyptus haemastoma on their property near their common boundary to: 1. Remove deadwood greater than 30 mm diameter; and 2. Prune broken or damaged branches back to suitable lateral branches or, if necessary, back to their branch collars. 1. The pruning works ordered in (5) must be carried out in accordance with AS4373:2007 Pruning of amenity trees and the 2016 Safe Work Australia Guide to managing risks of tree trimming and removal work. 2. The respondents are to give the applicant 7 days' notice of the works ordered in (5) and must provide the applicant with a copy of the arborist's public liability insurance. 3. The applicant is to allow any access required to complete the works ordered in (5) during reasonable hours of the day.

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 2019

Native Vegetation Act 2003(NSW)

SGCH - St George Community Housing v Moffitt

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Judgment (13 paragraphs)

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