Tsoukatos v Hirst

Framework of this decision under Part 2 of the Trees Act

1. The applicants have made reasonable effort to reach agreement with the respondent and have given notice of their application, as required by s 10(1) of the Trees Act.
2. Before making any orders for each of the three trees, the Court must be satisfied that it 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 (s 10(2)).
3. If the Court is satisfied that it has jurisdiction at s 10(2) for any of the trees, it must consider a range of matters set out at s 12. Thus, benefits provided by the trees, actions taken by the parties, other factors contributing to damage or to the likelihood of damage or injury, and other relevant matters, must all be considered before the Court determines an appropriate outcome within its jurisdiction.
4. The orders that can be made are those the Court sees fit to remedy, restrain or prevent damage to property, or to prevent injury, as a consequence of the trees (s 9(1)). Examples, listed at s 9(2), give the Court a broad range of possible orders including the taking of specified action, requiring the making of an application to contain consent if necessary, the payment of costs associated with carrying out an order, and the payment of compensation for property damage.

The hearing

1. The onsite hearing allowed observations of the trees and properties. Counsel for the applicants, Mr O'Gorman Hughes, and counsel for the respondent, Mr Norton, pointed out the differences between the extent of pruning they each proposed would be necessary for each tree. Peter Castor, arborist, who had prepared reports for the applicants, attended the hearing and explained reasons for the applicants' proposed pruning orders. The respondent relied on the written evidence of Martin Peacock, arborist, who did not attend the hearing. Engineering and surveying reports relied upon were by David England (applicants) and Daniel Williams (respondent), neither of whom attended the hearing.

The tree is causing damage

1. The Jacaranda grows in Mr Hirst's garden, close to the common boundary and near the back part of the applicants' dwelling. The healthy canopy of this large mature tree spreads out over the respondent's garden, the applicants' rear courtyard and beyond to the next property and to the laneway at the rear. The stem forks into several stems close to ground level, with one of the stems above that height heading eastward across the common boundary and supporting most of the crown above the applicants' property. The tree's structure is generally good, although due to its spreading habit there are some overextended limbs.
2. The eastern stem crossing the common boundary presses against part of the roof structure of the applicants' covered deck ('the pergola'), where it is damaging guttering along the western edge of the roof and beginning to displace part of the timber structure. There is no dispute that it is causing damage. It has been like this for a little while now, and with further growth will become more problematic.
3. Mr Castor also pointed out branches higher in the crown that he suggested posed a risk of damage to the applicants' dwelling, and branches, including some dead branches, that might fall and cause injury. I accept that some branches are likely to cause damage.
4. As I am satisfied that the Jacaranda is causing damage to the applicants' property, and is likely to cause further damage in the near future, I can make orders for this tree. Before determining what orders are appropriate, I must consider the matters at s 12.

Relevant matters to consider in determining appropriate orders

1. The Jacaranda is close to the boundary, close to the applicants' pergola and dwelling, with a significant portion of its canopy overhanging their property. It has been here for many years.
2. Pruning or removing the tree would ordinarily require consent only from Inner West Council ('Council'). However, such consent is not required to carry out any tree pruning the Court orders in this matter.
3. The applicants and respondent disagree as to how much pruning is required. Mr O'Gorman Hughes said the stem that presses against the applicants' pergola must be removed back to the stem, close to the base of the tree. Mr Castor said this would remove up to 30% of the Jacaranda's crown (Exhibit B, s 3.1) but this would not significantly impact the tree's vigour or Useful Life Expectancy. His view was that the tree's amenity value would not be greatly affected.
4. Mr Peacock acknowledged that removing this stem should not significantly affect the Jacaranda's Useful Life Expectancy, but thought it would impact its amenity value. He wrote that this was one option for preventing further structural damage.
5. Mr Peacock also suggested a second option to prevent the Jacaranda causing further structural damage: modifying the roof structure of the pergola (its height, width or angle, or a combination of these) to allow 300 mm clearance between the stem and any part of the pergola. He suggested this option was more appropriate from a tree-management perspective.

The pergola and its compliance with approved plans

1. Mr Norton argued strongly that this option of modifying the pergola's structure should be preferred not only because it would prevent the loss of ~30% of the Jacaranda's crown, but also because the pergola was constructed closer to the boundary than shown on approved plans, thus leading to the eventual contact between the tree and the pergola and thus to the damage. Had the pergola been constructed as shown on approved plans, the Jacaranda would not be pressing against it.
2. The pergola was constructed not by Ms Greenhalgh and Mr Tsoukatos, but by the previous owners of their property, who received an occupation certificate in or around 2004. Ms Greenhalgh and Mr Tsoukatos purchased the property in 2010.
3. Mr Williams, a registered surveyor, surveyed the pergola and its gutter and compared his findings with the stamped plans for its construction. He found the top of the pergola's gutter was 6 cm or 11 cm (depending on the referenced datum point) above its height shown on the approved plans. He also concluded the that the pergola structure extended some 440-470 mm closer to the common boundary than its position on the stamped plans.
4. Mr Norton argued that the pergola would not be affected by the tree had it been built as drawn and as approved. He submitted that this gives the Court the capacity to order its modification, as would be allowed by s 9 of the Trees Act. If the Court found that further consent would be required for this, it would also be within the Court's power to order that, according to s 9.
5. Mr O'Gorman Hughes said the Court would not have the ability in these Class 2 proceedings to order any works that would require demolition of a structure, or part of it. Furthermore, he argued, the pergola's compliance is not relevant here: it was constructed by previous owners of the property and an occupation certificate was issued. In Atanasovski v Sutu [2017] NSWLEC 1510, Commissioner Fakes was asked to consider the legality of a damaged structure, and found at [11]: "…Whether or not it was built with development consent is not a matter for consideration under the Trees Act…"
6. Mr O'Gorman Hughes rightly pointed out that s 6(3) of the Tree Act only gives effect to works that would otherwise require consent if the required consent is "… in relation to the tree concerned…".
7. Even if the Court orders that the applicants apply for consent to demolish or modify their structure, Mr O'Gorman argued, the matter would need to return to Court depending on Council's decision and any conditions.
8. Mr O'Gorman Hughes submitted that the approved plans show the edge of the roof, without guttering, and that the guttering was required under a condition of the permit, reducing the final offset from the tree. Mr Norton submitted that the roof edge shown on the plans would include the guttering.
9. Having reviewed the approved plans for the pergola, I note that some of the relevant offsets or dimensions referred to in the Williams report are not notated on the plans, as such, but have been measured on the plans. The edge of the pergola's roof line, as shown on the elevation drawing, indicates its intended location but does not accurately specify the offset from the boundary. It is not that Mr Williams' measurements or conclusions are wrong, but the required setbacks from the boundary to the roof edge, and to the guttering, are open to some interpretation. Nevertheless, onsite observations were sufficient to show that the pergola roof is very close to the boundary, closer than shown on the plans. I accept that greater clearance should have been allowed between the tree and the pergola when it was constructed.
10. Given the time that has now passed since the occupation certificate was issued, I find it would be inappropriate to now explore a course of action that would require the pergola's modification. Mr Norton argued that the works would be relatively minor, compared with the value of the tree, and I accept this. Removing a third of the Jacaranda's crown is not to be taken lightly. But Mr Hirst had the opportunity many years ago to notice the proximity of the pergola to his tree and raise any objection with Council. He has only raised it now, after receiving his neighbours' application to the Court.
11. Mr Norton took me to the Tree Disputes Principle established at [15] in Black v Johnson (No 2) [2007] NSWLEC 513 ('Black v Johnson'): "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."
12. As the principle explains, the presence of the Jacaranda at the time the pergola was built ought to be considered when determining who pays for works that are ordered, rather than whether or not works should be ordered in the first place. Mr Norton took me to Thompson v Bignall [2009] NSWLEC 1149 and Reed v Inner West Council [2017] NSWLEC 1038, suggesting they showed the principle might extend to whether or not orders should be made to interfere with the tree. I don't accept that. In the former, Commissioner Fakes dismissed the application because the applicant could prune overhanging branches to minimise the risk of branch failure. The latter decision was not a tree dispute and circumstances were different to the matter before me.
13. Even taking Mr Norton's submissions at their highest, and if it did indeed fall within the jurisdiction of the Trees Act, I find it would not be appropriate to order that the applicants modify their pergola. The stem that presses against the pergola should be removed back to its point of origin near the base of the tree. Having considered carefully the principle from Black v Johnson, I find it appropriate that the applicants share equally with the respondent the cost of pruning the Jacaranda, for the following reasons. The Jacaranda was already a mature and valuable tree when the previous owners of the applicants' property constructed their pergola. The plans were approved by Council and an occupation certificate was issued. The pergola was constructed close to the tree with insufficient offset to allow for growth of its stem. Mr Hirst did not contribute to the situation. He has the responsibility of maintaining several large trees that contribute significant value to public amenity and provide environmental benefits to the broader community. He should not carry the entire burden of paying to fix a problem not of his making. Lloyd J found in Mosman Municipal Council v Denning [2002] NSWLEC 227 that where a consent or its conditions are ambiguous, responsibility lies with the council. Despite this, it is apparent that it was not the conditions of consent that led to the problem; rather, the then owners, or their builders, constructed the pergola too close to the tree. Those owners are not a party to these proceedings. The applicants purchased their property with these events in the past and the damage pending. They have enjoyed the benefits of the Jacaranda shading their dwelling and garden, cooling their property each summer. They stand to benefit from the pruning, while Mr Hirst does not. Despite the loss of amenity that will inevitably result from the removal of this section of the tree, I accept the evidence of both arborists that the tree's Useful Life Expectancy should not be significantly affected.

Remaining s 12 matters to be considered

1. The Jacaranda contributes to the garden character of Mr Hirst's property. It provides shelter from the sun. It contributes to the amenity of both the applicants' and the respondent's properties, and to public amenity. It provides environmental benefits typical of a large mature tree.
2. I have discussed above the circumstances that have led to the tree damaging the pergola.

Further pruning to be ordered for the Jacaranda

1. Apart from the pergola damage, the applicants say other branches of the Jacaranda may fall and cause damage or injury. Mr Castor recommended removal of all deadwood and of a large branch above the dwelling. I found Mr Castor's assessment of the risk associated with limb-drop from all three trees subject to this application to be slightly exaggerated. As Mr Peacock wrote, Mr Castor did not provide sufficient justification for the extent of pruning he recommended. Mr Peacock suggested removing only part of the branch above the dwelling, so as to minimise risk while maintaining a more natural crown form. Other than the removal of the eastern stem damaging the pergola, I accept the pruning recommended by Mr Peacock to be the preferred outcome.

Tree 2 - Brushbox

1. The Brushbox grows close to the common boundary, alongside the applicants' dwelling. Both Mr Castor and Mr Peacock found the tree to be in good condition. When blown by strong winds, branches in the upper crown can contact the applicants' roof and chimney , which are likely to be damaged in the foreseeable future. Such damage can be easily avoided through pruning. Mr Castor recommended removing the main southern branch back to the stem, although again gave little justification for what appears to be unnecessarily severe pruning, apart from saying it would give 'permanent relief' from the ongoing formation of dead branches that might fall. The tree's structure is good, deadwood is small, and major limb failure is unlikely. Generally, the pruning discussed by Mr Peacock is more appropriate. However I accept Mr Castor's suggestion that the low branch on the northern side of the stem should be pruned back to its branch collar at the stem, as the option for reducing this branch to a suitable lateral branch would leave insufficient foliage to sustain it.

Tree 3 - Tallowwood

1. There was little difference in the opinions of Mr Castor and Mr Peacock regarding the Tallowwood. Branches of this tall tree extend across the applicants' roof to their other side boundary. Branches are likely to hit parts of their roof during strong winds, causing damage. Again, pruning can easily prevent this.
2. Mr Norton provided amended draft orders, based on Mr Hirst's preference to maintain the tree with regular pruning, therefore minimising the extent of pruning required in the first instance. Regular clearance pruning will also provide an opportunity for an arborist to inspect the crown and carry out any other maintenance pruning required, so I accept this is a suitable option.

Orders

1. As a result of the foregoing, the orders of the Court are: 1. The application to prune three neighbouring trees is granted, with modifications to the proposed pruning as outlined. 2. Within 30 days of the date of these orders, the respondent is to obtain, and supply to the applicants copies of, three quotes for the works specified below. The cost for works to each of the three trees is to be itemised separately in the quotes. 3. Within 60 days of the date of these orders, the respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances, to carry out the following works: 1. Tree 1: remove the eastern stem to its collar where it joins the main body of the tree; prune for weight-reduction and building clearance other limbs to the east near the applicants' dwelling as per the Peacock report (Exhibit 1); remove deadwood >25 mm in diameter. 2. Tree 2: remove the low northern branch back to its branch collar at the stem; prune to achieve 1.5 metres of clearance to the applicants' roof (direct clearance, not clearance within 1.5 m of the vertical plane above the outer wall) cutting back to the first suitable branch collar or lateral branch; remove deadwood >25 mm in diameter. 3. Tree 3: prune to achieve 1.5 metres of clearance to the applicants' roof (direct clearance, not clearance within 1.5 m of the vertical plane above the outer wall) cutting back to the first suitable branch collar or lateral branch; remove deadwood >25 mm diameter. 1. The respondent is to give the applicants 7 days' notice of the works ordered above. 2. During reasonable hours of the day, the applicants are to allow any access required to their property for the works ordered above. 3. Within 14 days of receiving a copy of a receipted paid invoice for the works ordered above, the applicants are to pay the respondent 50% of the cheapest amount quoted in order 2 for pruning Tree 1. 4. If the applicants do not receive a receipted invoice for the works within 90 days of the date of these orders, order 6 lapses. 5. During July of each year, beginning 2020, the respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances to prune Tree 3 to achieve 1.5 metres of clearance to the applicants' roof (direct clearance, not clearance within 1.5 m of the vertical plane above the outer wall) cutting back to the first suitable branch collar or lateral branch; remove deadwood >25 mm diameter. 6. On reasonable notice, the applicants are to allow any access required to their property for the works ordered above during reasonable hours of the day. 7. Liberty to relist for the purpose of clarifying the orders.

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: 05 July 2019