Tao v Zhang

Land and Environment Court (NSW)|2023-09-04

JUDGMENT

COMMISSIONER: This is an application, pursuant to s 7 of Pt 2 of the Trees (Disputes between Neighbours) Act 2006 (the Trees Act) by applicant, Leo Kit Tao, proposing the Court order removal of a Liquidambar styraciflua (Sweet Gum) (the tree) from the rear yard of an adjacent neighbouring property. There are three respondents to the application: Shuran Zhang, Pengxi Chen, and Linyan Wu.
Mr Tao and the respondents share a side boundary between their properties in Eastwood. The applicant's property is located on the eastern side of the respondents' land, and both properties face the same avenue, to the south.
The tree is located close to the common boundary and about 6 m from the respondents' rear boundary. It is a large, broad, mature tree and about 40% of its canopy overhung the applicant's rear yard.

The onsite hearing

At the onsite hearing, Mr Tao was self-represented, and Ms Chen represented the respondents.

The respondents' position

In her statement filed on 14 August 2023, Ms Chen said that prior to 2020, the tree had not dropped branches since the respondents occupied their property in 2013. After a large branch fell onto their yard in 2020, the respondents had the tree 'checked', and some branches pruned, but they received no report on tree health or structural condition.
Ms Chen confirmed that she was also concerned about the tree's safety. She supported removal of the tree, should that be the Court's determination, but at the applicant's expense.

Jurisdictional requirements

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 the Trees Act applies that is situated on adjoining land.
Section 8(1)(a) of the Trees Act requires applicant/s to give the owner/s of the land on which the tree/s are situated at least 21 days' notice of the lodging of the application and the terms of any orders sought. Section 8(1)(b) of the Trees Act requires the applicant to provide such notice of lodging of the application documents to any relevant authority that would, in accordance with s 13, be entitled to appear in proceedings in relation to the tree.
Section 9 of the Trees Act provides the Court power to make a wide range of orders.
The Court's ability to make orders is limited, at s 10 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) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 8. (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 tests at s 10 of the Trees Act are satisfied, the Court can make orders such as those at s 9 to remedy, restrain or prevent damage to property, or to prevent injury to a person, as a consequence of the tree. Before determining the nature of any orders, the Court must consider a range of matters set out at s 12 of the Trees Act.

Findings

Mr Tao satisfied s 8(1)(a) of the Trees Act, but the file contained no record of confirmation of satisfaction of s 8(1)(b) of the Trees Act. This required the applicant to give at least 21 days' notice of the lodging of the application and the terms of any orders sought to the City of Parramatta Council (Council) as they are a relevant authority that would, in accordance with s 13, be entitled to appear in proceedings in relation to the tree. Notwithstanding this omission, I have waived the applicant's requirement to give notice to Council, as provided for by s 8(3) of the Trees Act.
With respect to 10(1)(a) of the Trees Act, the applicant noted multiple discussions with the respondents during the 4 months following the December 2022 branch shedding event and claimed that the respondents agreed to "make an application (to Council) for months but have not taken any action". This was not disputed by Ms Chen, thus I am satisfied that the applicant has made a reasonable effort to reach agreement with the respondents. Both parties participated constructively at the hearing and the following commentary by Preston CJ, at [194]-[195] of Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (Robson), provides context to the requirement at s 10(1)(a) of the Trees Act; "194 The Trees (Disputes Between Neighbours) Act 2006 does not specify any particular time at which the applicant must make a reasonable effort to reach agreement with the tree landowner, other than fixing the end point by requiring that the Court cannot make an order under the Act unless it is satisfied that the applicant has made a reasonable effort to reach agreement with the tree landowner. Hence, although it would be preferable for an applicant to make a reasonable effort to reach agreement with the tree landowner before making application to the Court, so as to avoid court action, there is no requirement to do so and a reasonable effort to reach agreement can be made after making the application at any time up until the Court determines the application. 195 The language in s 10(1)(a) of the Trees (Disputes Between Neighbours) Act 2006 that the applicant has made "a reasonable effort to reach agreement" is less demanding than the language used in provisions of other statutory enactments which require parties to make reasonable attempts to reach agreement in relation to matters claimed in the court originating process..."
Therefore, the principal jurisdictional tests in this matter are at s 10(2) of the Trees Act.

Damage caused by the tree

The application included photographs of long, large Liquidambar branches that had fallen into Mr Tao's rear yard and resultant damage to the top of palings in the common boundary fence. In one photograph, Mr Tao included his hand for scale to show a branch was about 220 mm diameter at its breakage location. Though not significant, this damage nonetheless engages s 10(2)(a) of the Trees Act. The applicant also claimed that his vegetable garden was crushed by branches that fell in February 2020.
Mr Tao had recent landscaping works undertaken to improve the utility of the rear yard for his family. Though this included installation of garden edging near the tree base, based on the description of the works and observations on site, I was not satisfied that these works had negatively impacted the tree.

Risk of Injury

Mr Tao claimed that the tree presented a genuine risk of injury to him, his wife, his daughter, and his family's dogs, and to the respondents who also have a young child.
In Robson, at [175], his Honour explained that the applicant's concern about likely injury can be, but does not necessarily have to be, injury to a person who would be on the applicant's land. Orders have been made for the removal or pruning of trees on the basis they may cause injury to persons on the respondents' land, as in Reuben v Lace [2010] NSWLEC 1024.
In regard to injury, the Court must consider the risk posed by a tree in the foreseeable future based on the characteristics of the tree/s, the history of any failures, any other relevant evidence, and the circumstances of the site apparent at the time of the hearing (McPherson v Lake [2017] NSWLEC 1081 [10]) (McPherson).
My tree inspection revealed that the large failure in 2020 was due to breakage of the top of the main vertical trunk, with a diameter of about 200 mm. More recent wounds between 140-220 mm diameter from the December 2022 incident were also obvious, with the largest wound clearly exhibiting remnants of included bark in the torn junction.
While these branch failures may be attributed to storm conditions when the probability of people occupying rear yard 'target zones' is low, there were also disconcerting indications of failure of at least 10 additional lateral branches. These breakage wounds, which averaged about 60 mm in diameter, were mostly at locations far from the trunk and were unlikely to have been collateral damage caused by the falling tree sections from the 2020 and 2022 storm events. Though Ms Chen disputed that the tree had shed branches other than during these storms, this visual evidence of multiple branch breakage wounds supported the applicant's oral submission that branch failures occurred relatively often and included failures during non-storm conditions.
Based on the arboricultural expertise which I bring to the Court, Liquidambar styraciflua is generally a sound, vigorous tree species in Sydney, but with increasing age and maturity, it is prone to penetration and spread of wood decay fungi that enters the tree through wounds. Various old wounds with open cavities on the trunk indicated that pruning of low lateral branches in the distant past had been undertaken too close to the trunk and had included partial or complete removal of protective branch collars. This likely facilitated access and penetration of wood decay fungi into the trunk which subsequently spread, with consequent reduction of wood strength.
Some specimens of Liquidambar styraciflua also have a genetic predisposition to weak junctions resulting from included bark. This potential weakness was not widespread on the tree, but the photograph in the application of the largest failed branch displayed that the failed junction was distinctly included.
Provided they are growing vigorously, trees produce new wood and thus increased strength in trunks and branches over time in response to the impacts of wind and gravity. The loss of the trunk top in 2020 and the branches in 2022 exposed previously protected internal branches to altered and increased patterns of wind flow within the altered canopy. These branches are relatively weak and particularly vulnerable to breakage. The increased propensity to branch breakage has also been exacerbated in response to the loss of the trunk apex, by vigorous epicormic growth which is generally poorly attached.
Though the applicant provided no risk assessment by a qualified arborist to substantiate his position, based on the adduced evidence, I am satisfied that ongoing branch loss and structural deterioration of the tree is probable, and that the tree presents a genuine risk to the applicant and his family. As a consequence, s 10(2)(b) of the Trees Act is engaged.
While assessment of damage under the Trees Act relates only to the applicant's property, consideration of injury can relate to other areas surrounding the tree, as noted above at [20]. I am also satisfied that the tree represents a risk of injury to the respondents and that the risk of injury to both parties requires mitigation.
With s 10 satisfied, in order to determine, what, if any, orders should be made, the Court must consider relevant matters in s 12 of the Trees Act.

Discretionary matters - Section 12

The tree is large and is situated on the respondents' land close to the common boundary, with a large proportion of its canopy overhanging the applicant's land (s 12(a)).
Tree removal or major pruning requires authorisation under the Environmental Planning and Assessment Act 1979, as administered by Council (s 12(b)).
Section 12 (b2) considers the impact any pruning would have on the tree. I contemplated risk mitigation by selective pruning of a large lateral branch growing over the applicant's yard and partially over his dwelling roof which appears most likely to cause damage or injury upon falling. I was, however, not satisfied that this would halt or slow the rate of branch breakage from the tree, nor that the past pattern of branch failure provided a basis for prediction of future loss.
The tree contributes to the applicant's privacy, protection from the sun and wind, and to the scenic value of the land on which it is situated. Though it is located in the rear yard and is not conspicuous from the street, it is a large tree that is visible from neighbouring properties, and thus provides intrinsic value to public amenity (s 12(b3), (e) and (f)).
Though the tree is exotic and is unlikely to be an important food source, it is large and mature and likely to provide habitat for fauna, and hence makes local ecosystem and biodiversity contributions (s 12(d)).

Conclusion

I have examined the tree and the site and have reached the following conclusions: 1. Returning to McPherson, the tree displayed at least 10 atypical breakage wounds along the length of branches growing over the applicant's land, in addition to major canopy damage from storms. The loss of the top of the trunk at a diameter of about 100 mm was unusual and trees in surrounding gardens did not display similar storm damage. The high number and location of the branch shedding wounds was particularly disconcerting. The most likely causes of structural weakness are wood decay fungi or genetic predisposition but genetic predisposition is inconsistent with Ms Chen's uncontested claim that the tree had not incurred damage between 2013 and 2020. One would expect a more regular occurrence of branch breakage if genetically based. 2. I am thus satisfied that the cumulative impact of wood decay fungi spread from old trunk wounds, and from more recent entry of wood decay fungi from the 2020 loss of the top of the trunk, and from multiple exposed branch wounds, has reduced the structural integrity of the trunk and branches. I expect that branch loss will continue and become more frequent and unpredictable, and more likely in non-storm conditions. 3. The site circumstances are also considered in McPherson. Both parties back yards are relatively small with the tree's canopy overhanging the majority of the respondents' yard and about half of the applicant's yards. Both properties contain young children, and the applicant noted reduction to his family's amenity due to restriction of access to his yard to reduce tree risk. 4. The tree provides many benefits to both parties, notably extensive shade, but when a repeated pattern of failure on a large tree presents a genuine risk of serious consequences, particularly with young children likely to occupy its target zone, such risk must be prioritised. As even heavy pruning of the tree is unlikely to mitigate this risk sufficiently, particularly in the medium term, regrettably, orders shall be made for tree removal. 5. It is customary for respondents, as the owners of the tree, to be liable for the cost of executing orders made under the Trees Act, unless there is a good reason otherwise, such as an applicant poisoning a respondent's tree. As there is no reason here for such a variation, the respondents shall pay for the works, but an extended period is provided for execution of the orders in consideration of Ms Chen's claimed financial difficulties.

Orders

The Court orders that: 1. The respondents, at their expense, shall employ Australian Quality Framework (AQF) level 3 arborists with all appropriate insurances (the arborists), to remove the tree from their rear yard to around ground level and poison the stump, within 90 days of the date of these orders. 2. The tree removal works shall be completed in accordance with the Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016. 3. The respondents shall email the applicant with at least 72 hours notice of the date and approximate start time of the tree removal works and the applicant shall allow all reasonable access for the arborists to undertake the works and to remove tree debris from the applicant's property. 4. The tree removal works shall be undertaken during reasonable daytime working hours.

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: 20 December 2023

At a glance

Court

Decision date

Source

Judgment (12 paragraphs)

Parties

Cases Cited (4)