Stack v Kahler

The Applicants made a reasonable effort to reach agreement

1. The first jurisdictional test to be considered in these proceedings is found at s 10(1)(a) of the Trees Act. 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) … (2) …
2. The Applicants have raised their concerns about the tree both verbally and in writing with the Respondent and his wife. They have been unable to agree on what actions are necessary to prevent further damage. Material filed with the Court shows a history of text messages and letters between the parties. I am satisfied that the Applicants have made a reasonable effort to reach agreement with the Respondent.

The tree has caused damage and is likely to cause damage or injury

1. The second jurisdictional test considered in these proceedings is at s 10(2) of the Trees Act. 10 Matters of which Court must be satisfied before making an order (1) … (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.

Structural damage from root growth

1. The Applicants allege that the tree has damaged a retaining wall on their property and is shifting the foundations of their second dwelling. Both the retaining wall and the second dwelling were built near the tree. The retaining wall is a low, block wall that retains higher ground near the tree and provides a level, lower surface around the second dwelling. Part of the wall is against the base of the tree. Observations during the hearing were sufficient to satisfy me that growth of the tree's root collar has displaced parts of this wall. Edward Bennett, a civil and structural engineer engaged by the Applicants, found that the tree's roots had damaged the retaining wall (Annexure C of Exhibit B). On this element of the application, the Court's jurisdiction at s 10(2)(a) of the Trees Act is enlivened, and orders can be made.
2. During onsite observations, the Applicants were unable to show any evidence that the tree's roots had damaged, or are damaging, the foundations of their second dwelling. Likewise, Mr Bennett's report contained no evidence that such damage has occurred or is occurring. He only wrote that it "…will soon cause significant damage to the adjoining (Study) building and the brick pier footings for this building, if the tree is not removed." However, I find that I cannot rely on this and other such statements in his report. Mr Bennett made numerous 'findings' in his report that are unsubstantiated or are outside his area of expertise. He wrote that "…there is significant emotive damage due to the extensive canopy…", and "This species of tree is well known for its propensity to randomly drop branches…", and "It is my opinion, that there is a significant risk that during future periods of heavy rains and high winds, this tree will become unstable and cause severe damage to property and personal injury or worse." Mr Bennett's willingness to present these comments in a professional report reduce the overall weight given to his findings, even those relating to his area of expertise. Mr Bennett's report provided little assistance to the Court.

Damage or injury from whole tree failure

1. The Applicants pointed to recent trenching works on the Respondent's property in the vicinity of the tree. They submitted that the tree's supporting roots might have been cut or damaged, increasing the risk of whole tree failure. The Respondent provided evidence (Exhibit 1, p 25) from a consulting arborist who inspected the trench at the time and noted that all roots greater than 40 mm in diameter remained intact, with services in the trench routed above or below the roots. There is no evidence to suggest that the tree's risk of root failure is greater than normal.

Damage or injury from falling branches

1. According to the Applicants, branches have fallen from the tree and caused damage on several occasions. Some of this damage occurred during the previous ownership of the neighbouring property, but since the Respondent came here in 2018, several branches have fallen, causing damage to the Applicants' property. The Applicants provided photographs of fallen branches and property damage: damage to the solar hot water system on their roof, and damage to the roof and ceiling of a second dwelling on their property. They also provided quotes and invoices for repair to various elements of damage. While the Respondent and his wife disagreed with some of the evidence, or suggested it might be exaggerated, they did not dispute that branches from the tree have damaged the Applicants' property. I am satisfied that the tree has damaged the Applicants' property and the Court can make orders on this element of the application.
2. Both parties agree that further damage is likely unless preventative action is taken. Ms Mackenzie and Mr Austin both found that further branch failures are likely in the foreseeable future. With multiple dwellings beneath the tree's crown, I am satisfied that falling branches are likely to cause damage to the Applicants' property in the near future; they may also cause injury.
3. I am satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the Applicants' property, or is likely to cause injury to a person (s 10(2) of the Trees Act). It follows that I can make orders as I think fit to "remedy, restrain or prevent damage to property, or to prevent injury to any person" (s 9), but only after considering the matters at s 12 of the Trees Act. Relevant matters are considered below.

Location of the tree

1. The tree straddles the common boundary but both parties are of the view, and I accept, that it is located principally on the Respondent's land. While this finding of fact allows the Applicants to apply for orders relating to the tree pursuant to s 7 of the Trees Act, it does not assume that all responsibility for the tree lies with the Respondent. The tree was apparently planted by a person prior to the parties owning these neighbouring properties, but planted so close to the boundary that its original position as a seedling, relative to the common boundary, is not clear. In that case, the tree's ownership might be shared by the parties: see Chan v McDonald [2018] NSWLEC 1692 at [14]-[17] and Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 at [151]-[155].

Council consent

1. The tree is less than 2 metres from the Applicants' second dwelling. They say this means it can be removed without requiring permission from Northern Beaches Council ('Council'). I note that the 'Removing and pruning trees on private land' page on Council's website states that "reasonable pruning [in accordance with Australian Standards AS 4373 - 2007] of up to 10% of a tree's canopy within 12 calendar months" and the "removal of deadwood from a tree" can be done without a permit from Council.

Impacts of pruning

1. Ms Mackenzie and Mr Austin each undertook a risk assessment of the tree. Both found that the risk of damage or injury from branch failure in the near future is significant enough to require action. Ms Mackenzie's management options included hazard-reduction pruning, removal, or installation of a steel 'catch-net' (this latter option I find impractical). Mr Austin's management options included hazard-reduction pruning, reducing the tree to a 'stag' for habitat, or removal. Factors such as cost, ongoing risk and future maintenance requirements vary among these options. Ms Mackenzie thought that tree removal was the least desirable option due to the resulting loss of amenity and habitat. I concur with this opinion.
2. The Respondent submitted that he and his wife could not afford to remove the tree. They would prefer to prune the tree for hazard reduction, or reduce it to a stag. The Applicants submitted that only tree removal would prevent further damage or ongoing disputes. They thought reducing the tree to a stag for habitat would only provide them with an ongoing reminder of the anxiety the tree has caused them.
3. The history of branch failure resulting in damage to the Applicants' property reflects the nature of recent pruning, which has focused on removal of deadwood and hazardous branches over the Respondent's property. Both arborists have suggested that hazard-reduction pruning is a suitable option for ongoing management of the tree. Based on my own observations, along with my review of their reports, I find that the risk of further damage or injury could be appropriately managed by pruning, so that tree removal is not required.
4. Ms Mackenzie's description of the pruning works required to mitigate the risk are at par 46.3 on p 7 of her report (Annexure B of Exhibit B): "Initial deadwood removal of 20mm diameters [sic] (where practical), and selective smaller branch removal, subject to pruning specification developed for long-term tree care and maintenance. A Tree Risk Assessment and aerial inspections every two years (undertaken by appropriately qualified personnel), with any identified issues with branch stability addressed by wound or damage treatment and pruning. Follow up deadwood removal should take place every two years and following a significant storm event."
5. Mr Austin's recommendations for pruning and inspections are at par 11.1 on pp 22 and 22 of his report (Exhibit 2). They are similar to the recommendations of Ms Mackenzie, but provide greater detail: "Substantial pruning is recommended and will require the use of an advanced experienced climbing Arborist with good rigging skills; • Prune back branches overhanging the house deck and secondary dwelling at [Applicants' address] by 30% length to suitable sub branches with max cut size of 100mm diameter (do not lions tail). • North horizontal branch over secondary dwelling/granny flat at [Applicants' address] with rubbing wound - remove top rubbing section and reduce whole branch by 40% length (do not lions tail). • Western horizontal branch at 16m height over [Applicants' address] with bird browsing at union at 16m height - reduce whole branch by 30% length (do not lions tail). • Remove deadwood >30mm diameter. Aerial inspections are to be completed every two years. Aerial inspections can be completed at the same time as deadwood removal to save costs. Aerial inspections must be completed by a minimum AQF Level 5 Arborist with appropriate experience. Aerial inspections are to include: • Arborist Name, Qualifications of the inspecting Arborist. • Date of Inspection. • Photos of major defects identified. • A photo of the whole tree indicating the position of the defects identified. • An assessment of the wounds and cankers and must determine whether any branch unions are impacted. • Proposed remedial pruning actions. • Re-inspection timeframe. If site conditions change or severe weather events damage current tree condition the need for an earlier inspection is likely to arise."
6. The pruning and inspection regime recommended above would not adversely impact the tree and should allow its reasonable retention for the foreseeable future.

Benefits of the tree

1. While this species of Eucalypt might not occur naturally in the area, the tree provides environmental and habitat values. Birds and other fauna use the tree. The tree provides ecosystem services: shade and cooling; it has removed several tonnes of carbon from the atmosphere; it filters pollutants from the air. Its tall crown contributes not only to the landscape character of both properties, but also to public amenity.

Actions taken by the parties

1. It was clear to me during submissions at the onsite hearing that both parties want an outcome that will avoid an ongoing dispute, and they have taken steps to resolve the dispute.
2. The Respondent and his wife have proceeded on the understanding that the tree is on their property. They have maintained the tree, engaging an arborist to prune it. Pruning has done more to reduce the risk of branch failure over their property than over the Applicants' property. They submitted that they were unable to gain approval from the Applicants for the arborist to access the Applicants' property. The Applicants submitted that they were willing to grant access but wanted to discuss the pruning beforehand. Circumstances at the time gave them no opportunity for such a discussion. Correspondence filed by the parties supports these submissions. It is not uncommon for the nature of communication between neighbours involved in a tree dispute to make it difficult for the parties to agree on an outcome.
3. On my reading of Council's website, the Applicants could have engaged an arborist to remove deadwood from the tree's crown above their property at any time. Instead they have relied upon the Respondent to mitigate the risk they perceive to their property, without success.
4. The Applicants obtained Ms Mackenzie's report but did not provide a copy to the Respondent prior to commencing these proceedings. Mr Kahler submitted that they would have acted on the report had they received it earlier. After receiving the report with a copy of the application, the Respondent engaged Mr Austin to assess the tree. Mr Austin's report is comprehensive, providing clear recommendations (see above) that the Respondent intends to follow.
5. The Applicants have provided invoices for emergency repairs to their roof of their second dwelling following damage caused by falling branches ($1,210 total at question 14, Exhibit A). They have provided quotes for completing the repairs (total $7,045). An alternative quote includes replacing the entire roof of their second dwelling so that it has a consistent appearance rather than repaired areas of new roofing on the older roof ($10,500). Another quote covers the repair of their broken solar hot water tube ($355.86). Repairs to the roof of their principal dwelling are quoted separately ($1,045). A quote for repairing their retaining wall amounts to $2,750.
6. Before considering the payment of compensation, the matter of the tree's ownership should be determined (see [19] above). It may be that the tree's ownership is shared by the parties. This would affect not only the Court's consideration of compensation, but also who should pay for the tree's maintenance. To resolve this issue, a survey of the tree's base will be ordered. The level of detail required for this survey is explained and shown in Chan v McDonald [2018] NSWLEC 1692 and Awad v Hardie (No 2) [2010] NSWLEC 1258. The outcome will not change the pruning to be ordered, but will be used by the Court to determine payment of compensation and payment for pruning works. Until tree ownership is determined, orders for pruning will mitigate the existing risk only. Any orders for ongoing management requirements should consider tree ownership following the survey outcome. Once the Court receives a copy of the survey, the matter will be listed for a final hearing to allow submissions relevant to the survey.

Orders

1. As a result of the foregoing, the Court orders: 1. The Respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurance to carry out the pruning works (the works) recommended by Mr Austin at s 11.1.1 of his report dated August 2022 (Exhibit 2). The works are to be done in accordance with the Safe Work Australia (2016) 'Guide to managing risks of tree trimming and removal work' and AS 4373-2007 'Pruning of amenity trees'. The works are to be completed within 60 days of the date of these orders. 2. Within 30 days of the date of these orders the Respondent is to engage and pay for a registered surveyor to accurately survey the base of the tree at ground level and to produce a survey plan showing the base of the tree in relation to the location of the common boundary, and the percentage of the stem's area at ground level on each property. To show the level of detail required, the Respondent is to provide the surveyor with a copy of Awad v Hardie (No 2) [2010] NSWLEC 1258 and Chan v McDonald [2018] NSWLEC 1692 prior to undertaking the survey. 3. The Respondent is to provide the Applicants with at least 2 days' notice of the works in (1) and the survey in (2). 4. The Applicants are to provide any access required to complete the works in (1) and the survey in (2) during reasonable hours of the day. 5. Within 40 days of the date of these orders, the Respondent is to send to the Applicants by registered post, and file with the Court, a copy of the survey plan from (2). 6. The matter will be relisted for any further submissions relevant to the survey outcome. 7. The exhibits are returned, other than A and 2.

Amendments 03 January 2023 - Correction to cross-reference in [33]. 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: 03 January 2023