The Owners - Strata Plan 94255 v Luu - [2022] NSWLEC 1265 - NSWLEC 2022 case summary

Land and Environment Court (NSW)|2022-05-18

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Background to the application

Acting Commissioner: Bich Ngoc Luu (Ms Luu) and her mother Xieu Kien Luu (together the Respondents) own a residential property in Cabramatta. The single dwelling is surrounded by a large garden area. Several mature eucalypts stand in the back yard, two of them close to the side boundary near the back, north-eastern corner of the yard. Christina Lim owns four townhouses on the large adjoining property to the north, part of Strata Plan 94255 (the Owners of Strata Plan 94255 are the Applicant).
Two or three years ago Ms Lim developed the northern property with eight townhouses. The townhouse in the property's south-eastern corner sits beneath the Luus' two large eucalypts, with the trees' branches and foliage touching its roof. Leaves and other debris cover the roof guttering and parts of the roof. Blocked gutters resulted in water overflowing into the ceiling space, causing water damage to the ceiling. Branches have fallen into the townhouse's garden; one branch damaged the clothesline. A new clothesline was installed away from the trees.
Ms Lim asked the Luus to remove the trees. The Luus told Ms Lim the responsibility was hers, and that she was welcome to prune any branches overhanging her property. To assist, the Luus applied for a Tree Work Permit from the City of Fairfield Council (Council). Council's Tree Maintenance Officer assessed the trees and approved removal of them both. With the parties unable to agree on who should carry out, or pay for, pruning or removing the trees, Ms Lim applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), seeking orders for the Luus to remove both trees.

The Applicant made reasonable effort

The Trees Act, at s 10(1), requires the Court to be satisfied that the Applicant has made a reasonable effort to reach agreement with the Respondents before the Court can make orders. Correspondence that passed between the parties was presented to the Court. Ms Lim sought an outcome that was not accepted by the Luus, as they were unwilling to pay for the works. I am satisfied Ms Lim made a reasonable effort.

Trees in the application

Both trees are large, mature eucalypts, each with a stem diameter of approximately one metre. Tree T1, an unidentified eucalypt in the back corner of the yard, has only one live branch on the lower stem - its upper crown is dead, and has been for some time. Branches appear brittle and are likely to break and fall in the foreseeable future.
Tree T2, just to the west of T1 was identified by Council's Tree Management Officer as Eucalyptus longifolia, Woollybutt. More than half of its broad crown overhangs Ms Lim's property. Its low branches rest on the townhouse's roof. The stem forks close to the ground, with bark included in the narrow fork. Primary branches heading over Ms Lim's property divide further, again with bark included in narrow forks. Damaged and necrotic areas within some of these forks result from past branch failure. The likelihood of further branch failures is high. A large primary branch on the Luus' side of the crown is dead. (Tree numbering used here follows that in Ms Lim's application; numbering in Council's Tree Work Permit was vice versa.)

Have the trees caused damage?

Under Pt 2 of the Trees Act, at s 10(2), the Court must be satisfied before it makes any orders that the trees have caused, are causing, or are likely in the near future to cause, damage to the applicant's property, or injury to any person.
Ms Lim provided photographs: one of a fallen branch, and another of the damaged clothesline, apparently caused by a branch that fell. Other photographs show debris on the roof and water damage to the ceiling inside the townhouse. Ms Lim submitted that the water damage resulted from the trees' debris blocking her gutters. Ms Lim does not seek compensation for any damage caused.
It is apparent that leaves and other debris from the trees have blocked the gutters of Ms Lim's townhouse, causing rainwater to overflow and damage her ceiling. However, I find this is not a trigger for any orders from the Court. While the trees significantly overhang Ms Lim's property, other than where branches touch the roof, this is no worse than many other situations that have come to this Court under the Trees Act. Damage could have been prevented through reasonable property maintenance, as per the principle set out in Barker v Kyriakides [2007] NSWLEC 292 at [20].
I find that one of the trees, most likely T1, caused damage to the Applicant's property when a branch fell and hit the clothesline. There is no other apparent cause of that damage; and a photograph shows a fallen branch. On the balance of probabilities, T1 has caused damage to the property. As I have stated above, the Applicant claims no compensation for that damage.

Are the trees likely to cause damage or injury?

Apart from a live branch coming from its lower stem, T1's crown is dead. Large dead and brittle branches are likely to fall in the near future. Those branches above Ms Lim's townhouse are likely to damage the roof, or may injure someone in the garden. Due to the tree's height, branches that are above the Luus' property, redirected by wind or other branches, might also fall onto Ms Lim's townhouse. I find T1 is likely to cause damage to the Applicant's property in the near future, or injury to a person.
T2 appears healthy compared with T1, but structural defects in the stem and primary branches described at [7] are likely to fall in the near future. Due to their size, they would cause significant damage to the Applicant's property.

Orders for tree removal

Works are required to mitigate the risks found above. In determining the nature of orders to be made, I have considered the matters at s 12 of the Trees Act and discuss here those that are relevant.
The trees are close to the common boundary. Their crowns overhang Ms Lim's townhouse.
Removing the trees would require Council consent. Ms Luu applied for, and Council granted, consent to remove both trees T1 and T2.
Removing the dead crown of T1 is required to mitigate risk. If only the lower stem and one live branch were retained, the tree would not remain viable. Tree removal is the appropriate action.
Removing hazardous primary branches from T2 would also leave only a small live crown over the Luus' property. Again, the tree would not be viable and removal is the appropriate action.
Both trees provide habitat. Ibis were observed in the trees' upper branches. T1 provides little in the way of amenity or ecosystem services. T2 provides shade and cooling and contributes to the leafy character of the Luus' back garden, dominated by native trees. Four other eucalypts, further from the boundary, also provide amenity and environmental value.
Ms Lim has taken reasonable steps to prevent further damage. The Luus have obtained Council consent to remove the trees, but have been unwilling to pay the cost of that, feeling that the responsibility is Ms Lim's. Ms Luu submitted that the trees have been here for many years; and that when Ms Lim developed the northern property recently, she chose to locate a townhouse beneath the trees. Ms Luu argued that Ms Lim has therefore created the hazardous situation.
In Black v Johnson (No 2) [2007] NSWLEC 513, Commissioner Moore (as his Honour then was) and Acting Commissioner Thyer set out a principle relating to pre-existing trees, and described relevant factors to consider. In these proceedings, Ms Lim chose to construct a townhouse beneath two large neighbouring trees. The likelihood of damage to the townhouse is a direct result of her actions. However, the northern property was developed with eight townhouses that cover most of the land. Council apparently found this was reasonable development in accordance with the land's zoning. The subject townhouse could not have been located elsewhere. I also consider that, had Ms Lim not developed the northern property, the high likelihood of branches from both trees falling into a garden and causing injury would also trigger orders. That is, had the northern property remained in its former state, orders for tree removal would still be appropriate. Ms Lim's actions may have brought the issue of tree hazard front-of-mind, but her actions have not caused the need for tree removal. Therefore there is no reason to shift the cost of tree removal works from the Respondents, where such costs usually lie, to the Applicant.
Above are the matters I find relevant. As a result, orders will be made for the Luus to arrange and pay for the removal of both trees. They have a large garden with room for replanting. Council's consent included a condition for replanting one tree of the property owner's choice for each tree removed. Considering the existing landscape character, two native trees should be replanted, at least 2 metres from any boundary.

Orders

As a result of the foregoing, the Court orders that: 1. The application is granted. 2. The Respondents are to engage and pay for a suitably qualified arborist (minimum AQF level 3) with all appropriate insurances to remove both trees T1 and T2 to no more than one metre above ground level within 60 days of the date of these orders. Tree removal work is to be done in accordance with the Safe Work Australia (2016) 'Guide to managing risks of tree trimming and removal work'. 3. The Respondents are to provide the Applicant with at least 2 days' notice of the works. 4. The Applicant is to provide any access, other than access for heavy trucks and equipment in the driveway, required to complete the works during reasonable hours of the day. 5. Within 90 days of the date of these orders the Respondents are to plant two native trees on their property at least 2 metres from any boundary. ……………………………….

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: 23 May 2022

The Owners - Strata Plan 94255 v Luu

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Judgment (9 paragraphs)

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