Thronberry & Anor v Packer & Anor

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

CASES CITED: Robson v Leischke [2008] NSWLEC 152 Barker v Kyriakides [2007] NSWLEC 292

Mr David Burgan Solicitor Richardson Legal LEGAL REPRESENTATIVES:

Mr Kevin Pearce Solicitor Aubrey Brown Partners

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by Mr J Thornberry, Ms V Bruce and Ms L Bruce of 72 Beaufort Road Terrigal against the owners of a tree growing at 36 Cheryl Avenue Terrigal. The owners of that property are Mr L Packer and Ms H Merse. The applicants were represented by Mr D Burgin, solicitor and the respondents by Mr K Pearce, solicitor. Mr R. Kingdom, the applicants' arborist gave evidence at the on-site hearing.

2 The applicants are seeking the removal of a mature Eucalyptus pilularis (Blackbutt) as they contend that it has caused, is causing, and could, in the near future cause, damage to their property, and is a risk of injury to persons. They are also seeking compensation of an amount of $5186.50 for repair of a glass roof panel and the repair of a retaining wall and concrete slab.

3 The damage said to have been caused by the tree is damage to a glass ceiling panel and to numerous roof tiles from falling dead wood. The applicants also contend that roots from the tree have caused cracking of a concrete slab and cracking and displacement of a masonry retaining wall. The glass panel was broken some 6-7 years ago, and over the 19 years that the applicants have lived in their house, they estimate that they have replaced at least 4 roof tiles per year.

4 The other issue raised in their application is the staining of clothes from the droppings of insects feeding on the tree onto clothes on their clothesline that is located directly beneath the tree.

5 With respect to the claim for compensation, the respondents exchanged contracts on 36 Cheryl Avenue on 25th September 2009 and settled some 10 weeks later. The damage, said to have been caused by the tree, was the cause of a long running dispute with the previous owner of that property and the subject of two withdrawn applications under the Act made by the applicants against the previous owner. That person has since died. As no damage, subject to this application, has occurred during the period of ownership of the respondents, no claim can be made against them under this Act. This issue was clarified at the on-site hearing and the claim for compensation has been withdrawn.

6 In another issue with respect to the previous owner of the tree, that person had received permission from Gosford City Council, in March 2007, to remove "one Eucalyptus tree located in the backyard closest to the rear boundary and for the reduction of branches overhanging the rear properties from two trees in backyard". The species of Eucalypt is not given and the applicants contend that the tree approved fro removal was the Blackbutt. This approval was for a period of 5 years.

7 It was put to me that the parties may have reached agreement about the removal of the tree as previously approved by the council and that agreed orders may be proposed. However, the Court is still obliged to go through the processes described in s 10(2) and s 12 of the Act (see Breen & Anor v Caronna & Anor [2008] NSWLEC 293). If the Court agrees that the proposed orders are ones appropriate "to remedy, restrain or prevent damage to property, or to prevent injury to any person", the Court will make those orders. However, if the Court considers that other orders are more appropriate in the circumstances of the matter, the Court will make those orders. The Court is not obliged to accept the orders made by the parties. In this matter it was finally determined that the matter should proceed without agreed orders.

8 The tree is a healthy, mature Blackbutt. It was initially unclear as to whether the tree is in fact two trees or one tree with two stems arising from the same root plate. For the purpose of the application, the tree has been discussed as having two stems. The tree is growing in the rear garden of the respondents' property and the northern-most stem is located approximately 1 m from the rear fence that is the dividing fence between the parties' properties.

9 I inspected the tree from the ground from both properties and binoculars were used to view the upper portions of the canopy. Mr Kingdom was engaged by the applicants to prepare a report on this tree in June 2008. This report was tendered in evidence and Mr Kingdom was questioned at the on-site hearing.

10 In Mr Kingdom's report he recommends the removal of the tree as he contends that roots from the tree have damaged the retaining wall and that the tree has various structural defects that could lead to failure of the canopy onto the applicants property. He is specifically concerned about several crossing branches and a cavity and bark inclusion between one of the major forks.

11 There are some crossing branches including where a large branch from the more southern of the two stems grows into the canopy of the northern stem. This is one about which Mr Kingdom is most concerned. He stated that the branch was most likely to fail at the point of crossing. It shows some kino production but no decay and in my opinion, there is no evidence that failure is likely to happen. There is included bark between two stems towards the upper part of the most northern leader. This is most obvious on the northern side but not on the southern side. There is a cavity with a small aperture within the inclusion which is said to be used by lorikeets. There were no signs of superfluous wood around this cavity and no other signs that would suggest likely failure.

12 Mr Kingdom's report states that he carried out a 'Visual Tree Assessment' according to Mattheck 2004 (sic), but he does not recommend moving to the next level of inspection stated in that method, that is, if there is cause for concern, a more detailed inspection should be undertaken involving sounding with a hammer or the use of devices to measure the extent of the defect and the risk of failure.

13 According to the evidence on site, the branches that have caused damage to the applicants' property have been dead branches. Also raised at the on-site hearing was the issue about debris such as leaves and twigs falling onto the roof necessitating frequent clearing.

14 The retaining wall, said to have been damaged by roots from the tree, is thought to be about 30 years old. It is constructed of rectangular masonry blocks laid vertically to a height of about 600mm. The section that is displaced is the section closest to the tree however neither Mr Kingdom nor the applicants were able to show me any roots from the tree. The displacement is about 150mm off vertical.

15 The other damage alleged to be caused by the tree is cracking of a section of concrete between the section of retaining wall mentioned above and the house. The applicants' clothesline is located on this section of concrete directly under the tree. The crack runs in an approximate north-south direction and there is some displacement in one are of about 30mm. Another crack arises from the main crack about 3 m to the north of the wall and then heads west. It was noted that many other sections of concrete, located some distance from the tree, were also cracked.

16 The risk of injury is said to be from falling debris from the tree striking people or creating a trip hazard.

17 Under s 10(2) the Court must not make an order unless it is satisfied that the tree, subject to the application, 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 any person. Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions, under s 9 as to whether the damage or likelihood of injury is sufficiently serious to warrant the intervention of the Court, and if so what should be ordered and who should pay.

18 The Court must also consider a number of matters under s 12 of the Act. The relevant clauses in this matters are: (a) The tree is wholly located on the respondents' property. (d) The tree is a habitat tree and a remnant and thus makes a contribution to biodiversity and to the local ecosystem. In the 'Tree Works Consent No 3242443 issued to the previous owner of 36 Cheryl Avenue, the council conditioned the consent by stating that ' if wildlife is suspected, advice must be sought from a suitably qualified ecologist.. ' (e) The tree contributes to the scenic value of the land on which it is growing and to the locality. (f) The tree has intrinsic value to public amenity as it can be seen from neighbouring properties and forms part of the canopy that contributes to the landscape character of the area. (h) The retaining wall is unlikely to comply with current engineering standards and is probably at least 30 years old, as is the surrounding concrete. In Mr Kingdom's report he states that the soil type is clay-based Erina Hills Soils. These soils shrink when dry and swell when wet. The section of the wall in question retains this soil to a height of about 600mm. The natural pressure of soil and the water it holds can exert pressure on walls. As stated previously, there are many other cracks in the concrete that are nowhere near the tree.

19 Returning to the applicants' issues with the tree and the tests under s 10(2). In the matter of the staining of clothes from insect droppings, in Robson v Leischke [2008] NSWLEC 152) at 189, Preston CJ states that " the specification of the tree as being a cause of damage to property or injury to any person excludes damage or injury directly caused by animals, such as mammals, birds, reptiles or insects, which may be attracted to a tree or use it as habitat." In this matter, the issue about insect droppings apply to this determination by Chief Justice Preston. 20 Similarly, the build up of leaf litter on the roof or on the paving will not ordinarily provide the basis for ordering the removal of a tree. As outlined in Barker v Kyriakides [2007] NSWLEC 292 and subsequent tree dispute principle available on the Court's website, it is expected that some level of external housekeeping and maintenance is normal for people who live in leafy urban environments and who benefit from the environmental and aesthetic benefits that trees provide. This tree would have been well established when the applicants purchased their property.

21 With respect to the concerns raised by the applicants, and the recommendations made in Mr Kingdom's report, I am not convinced that the damage said to have been caused by the roots of the tree is sufficiently proven to order the removal of the tree. Similarly, as the damage said to have been caused to the roof is from falling dead wood, there is no justification for ordering removal of the tree, rather, that the removal of dead wood is more appropriate. The removal of dead wood would also reduce the likelihood of injury to any person as this is the material said to have fallen from the tree and is likely to continue to do so as this is a normal part of the growth of a tree.

22 I am not satisfied that the tree's structural issues raised in Mr Kingdom's report pose an unacceptable risk of damage to property or are likely to cause injury to any person.

23 However, as the tree is likely to have caused damage to the roof through the falling of dead wood and that this is likely to occur in the near future, and similarly, that the falling of dead wood could cause injury to any person, three of the tests under s 10(2) are satisfied and the jurisdiction is enlivened and the Court can make an order under s 9.

24 The Orders of the Court are: a. The application to remove the tree is dismissed b. The respondents are to engage and pay for an AQF level 3 arborist to remove all dead wood down to 30mm in diameter from the tree. c. This work is to be carried out in accordance with AS4373:2007 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry . d. If necessary, the applicants are to provide the arborist with all reasonable access required to enable the works to proceed in a safe and efficient manner. e. The respondents are to give the applicants at least 3 working days notice of the commencement of the works. f. The works are to be completed within 40 days of the date of these orders. g. The removal of dead wood is to take place every two years within 14 days either side of the anniversary of the first pruning. This is to be organised and paid for by the respondents. Orders 2, 3, 4 and 5 above apply to this order.

J Fakes Commissioner of the Court

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