Turner v Bennett

CASES CITED: Yang v Scerri [2007] NSWLEC 592 Barker v Kyriakides [2007] NSWLEC 292

APPLICANT Lisa Turner LEGAL REPRESENTATIVES:

RESPONDENT David and Marie Bennett

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

20328 of 2008 Lisa Turner v David and Marie Bennett

JUDGMENT This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 ACTING COMMISSIONER: Mr and Mrs Bennett purchased their South Coast holiday home about 30 years ago. It is in Manyana, a small village set in the coastal forest near Lake Conjola. They were captivated with the leafy village atmosphere, abundant wildlife and tranquillity. Mr Bennett says the gum tree in their backyard was there when they purchased, and its size has not changed much since then. They have not actively managed the tree in any way, and have not had it inspected at any time by an arborist. Branches of the tree overhang Ms Turner's property by about 7 m and about one quarter of the tree canopy is over her property. The Bennetts claim that the tree had never been an issue to the three previous owners of Ms Turner's property, and one of those owners extended the house under the tree canopy.

2 Ms Turner purchased her property in 2002 and initially rented it out. In 2005 she moved into the home. The backyard is quite small and much of it is under branches of the Bennett's tree. Ms Turner has a preschool aged child who regularly plays in the backyard, often with friends. Ms Turner says that two live branches have fallen from the Bennetts' tree into her backyard since December 2007. Both branches were about 4 m long and 60 mm thick, and fell on days of light or mild winds. The Bennetts dispute that the first branch was from their tree. Ms Turner had an arborist inspect the tree and the second fallen branch. The arborist identified decay that had weakened the fallen branch at its fracture point. The arborist recommended pruning of some overhanging branches, and inspection of the upper surface of branch forks.

3 Ms Turner tried unsuccessfully to reach agreement with the Bennetts about pruning of overhanging branches. She now seeks orders for removal of the tree to avoid risk of injury to people and to prevent damage to her property.

4 When assessing an application under the Trees (Disputes Between Neighbours) Act 2006 the Court must be satisfied that one or more of the four tests in s 10(2) (a) and (b) of the Act are met by the tree before making an order regarding that tree. These tests are: Has the tree caused damage to the applicant's property ? Is the tree now causing damage to the applicant's property ? Is the tree likely in the near future to cause damage to the applicant's property ? Is the tree likely to cause injury to any person?

5 Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of: Is the damage or risk sufficiently serious to warrant the Court intervening? If so, what should the Court order? Who should pay to carry out those orders?

The tree 6 The tree is situated on the eastern side of the Bennetts' backyard at 273 Sunset Strip Manyana. The trunk of the tree is about 3 m from the common boundary with Ms Turner's property at 271 Sunset Strip Manyana.

7 Mr Potts, a consultant arborist for Ms Turner described the tree as a mature Narrow leafed Peppermint (Eucalyptus radiata) approximately 20 m tall with canopy radius to 9 m. His inspection of the tree on 22 August 2007 was prior to both live branch failures, and his report dated 6 October 2007 states: The inspection was to ascertain potential for pruning, and whilst not systematically inspected from all sides, the tree had no observable structural or pathological disorders when viewed from the east side. Lopping and Topping is an unacceptable industry practice, …… I would regard removing the entire east side of this substantial Eucalypt's branching structure as such a practice. Ms Turner sent photographs of the second live branch that failed to Mr Potts. His email dated 18 March 2008 states in relation to that branch: The branch appears to have been pre-disposed / weakened by a decay lesion ie not purely wind caused attrition which would be a splintery greenstick type fracture, or an inexplicable branch drop. ……… On pruning the climber should check the upper surfaces of the forks. 8 I observed the tree to be about the size stated by Mr Potts and that the canopy was lopsided, extending further on the eastern side, over Ms Turner's property, possibly due to the presence of another tree to its west. The tree has a lot of dead wood throughout the canopy, many of the dead branches being about 4 m long and at least 60 mm thick. There are a number of branch stubs and irregularities on the branches overhanging Ms Turner's property that may be the origin of the fallen branches. I also observed what appeared to be two rough, cankerous growths in the upper branches, one about 150 mm diameter and the other about 300 mm diameter.

9 Ms Turner claims that two live branches have fallen from the tree into her backyard, the first in December 2007 and the second about three months later. Her written evidence, confirmed at the hearing is that she was home when both branches fell, that she heard a 'boom' sound and went outside where she found each branch under the canopy of the tree. Ms Turner claims that both branches were about 4 m long and 60 mm thick, and fell on days that had only light or mild winds.

10 Ms Turner showed the first branch to the Bennetts when they next arrived at their holiday house. The Bennetts dispute that the first branch was from their tree, on the basis that the leaves appeared larger and the bark looked different. They have not provided any expert evidence to support their contention. They produced a photograph of the branch at the hearing but on viewing it I am not satisfied the branch must be from another tree. I prefer Ms Turner's evidence on this matter on the basis that she was home when the branch fell, that she noted the time of about midday and the light wind conditions, and observed the location of the fallen branch near the trampoline and where it might have broken from.

11 I inspected the second of the fallen branches, which was still in the backyard, and observed that the broken end has white colouration near the upper edge, and the timber below is light brown with blocky fractures. Both these features are consistent with fungal attack and decay. The bark surrounding the break did not have any appearance that would indicate the decay was present.

12 My assessment is that the tree has not been managed in any way to reduce risk of dead wood falling as the tree matures, and that no visual inspection will reveal branch forks that have fungal attack and are likely to fail in the future. Damage 13 At the hearing we observed the area where Ms Turner says the two live branches fell near the trampoline and outdoor oven in her backyard. On Ms Turner's own advice, neither branch caused any damage. Therefore the fallen branches do not meet the first two tests in s 10(2) (a) of the Act.

14 I note that only two live branches are reported to have fallen since 2005, the first in December 2007 and the second about three months later. No further live branches have fallen in the six months prior to the hearing. The two branch falls were unpredictable and there does not as yet appear to be a pattern of live branch failure that predicts further failures in the near future, a period I take to be about twelve months in line with the rule of thumb set out in Yang v Scerri [2007] NSWLEC 592. Also, as the two fallen branches did not cause damage, I do not find it likely that a similar falling branch will cause damage. On that basis in relation to live branches, I do not find it likely that the tree will drop a live branch that causes damage to Ms Turner's property in the near future, so the third test in s 10(2) (a) of the Act is not met in relation to live branches.

15 I also note that no dead branches of a size likely to cause damage are reported to have fallen from the tree. On that basis, although there is large dead wood in the tree, I do not find it likely that the tree will drop that dead wood causing damage to Ms Turner's property in the near future, so the third test in s 10(2) (a) of the Act is not met in relation to dead branches.

16 Ms Turner raised concerns about the tree being a risk of property damage from bushfire. I find that the Shoalhaven FCC Rural Fire Service letter to Mr and Mrs Bennett dated 24 July 2007 addressed that concern where it states: ….an officer of the NSW Rural Fire Service has inspected the area of concern and has determined that the land does not present a significant bushfire threat at this point in time. I would advise however that your cyclical maintenance program be maintained to ensure this area does not become a hazard at a future date. On that basis I find that the tree does not meet the third test in s 10(2) (a) of the Act in relation to bushfire damage. 17 With regard to debris from the tree being a fire hazard on Ms Turner's property, I find that this is not so. I depend on the Shoalhaven FCC Rural Fire Service letter in this regard, on the basis that they inspected the area of concern in response to her request, and I trust they would have informed her if her property was at risk. Therefore the tree does not meet the third test in s 10(2) (a) of the Act in relation to bushfire damage that may be caused by tree detritus in the near future. If I am wrong in that assessment, I would apply the logic of the tree principle published in Barker v Kyriakides [2007] NSWLEC 292 which discusses the obligations of householders who have the aesthetic and environmental benefits of trees in an urban setting and the requirement that they may reasonably be expected to undertake property maintenance including the removal of tree detritus such as leaves, nuts, fruits or small branches falling from such trees onto their property. On that basis I would not order intervention with the tree as a matter of discretion, and Ms Turner could avoid the bushfire risk by carrying out property maintenance. Likelihood of injury 18 I have described the unpredictable risk of further live branch fall, that visual inspection of the tree will not reveal such predisposed branches, and the large amount of significant dead wood throughout the tree. I have previously stated that Ms Turner resides at her property, that her preschool aged child plays regularly in the backyard, often with friends, and that the backyard is relatively small, much of it under the canopy of the tree. I have also noted that there is an outdoor oven under the canopy of the tree. That oven is set in an area used for sitting and socialising.

19 For injury, the test in s 10(2) (b) of the Act is not restricted to the near future, it only need be likely, and may be injury to any person not only a person in Ms Turner's family or on her property.

20 I find that injury by the tree is likely based on the unpredictable risk of live or dead branch failure and the reasonable use that Ms Turner makes of her backyard. Therefore the test in s 10(2) (b) of the Act is met. Considerations 21 Before determining the application I am required to consider matters in s 12 of the Act.

22 Under s 12 (c) of the Act, I recognise the Bennetts' comments about the importance of the tree to their enjoyment of the holiday home over their 30 years of ownership.

23 Under s 12 (d) of the Act, I note the tree is a remnant of the local forest. I also note photographs provided by the Bennetts showing possum, King Parrot, Crimson Rosella, frog, and Blue Tongue lizard in their backyard. I find that the tree contributes to the local ecosystem and biodiversity by providing food, shelter and habitat for various fauna.

24 Under s 12 (e) of the Act, I find that the tree is a significant landscape element in the Bennetts' backyard. Also, the tree is visible from surrounding properties and streets contributing to the bushland character of the local area.

25 Under s 12 (f) of the Act, I find that the tree provides intrinsic value through oxygen production, carbon sequestration, and cooling summer shade.

26 Under s 12 (i) (ii) of the Act, I note the Bennetts' advice that they have not had the tree inspected by an arborist in the past and have not carried out any maintenance pruning to remove dead branches. I also note that they have frustrated Ms Turner's efforts to prune off two branches at the advice of her arborist by requiring the pruning to be to AS 4373 but not allowing any cuts on their side of the common boundary. Also, though in possession recently of the arborist's email referring to weakening of the second failed branch by a decay lesion, they have not sought any advice on the safety of the tree. The Bennetts have stated in their submission for alternative orders that Ms Turner may prune the two limbs mentioned in the arborist's report or remove the whole tree at her cost. At the hearing they maintained their position that any work should be entirely at Ms Turner's cost, and that they should not be responsible for any problems or danger created by the tree.

27 Under s 12 (j) of the Act, I note that Ms Turner has paid about $400 for her arborist's reports and Court costs, and that she was previously willing to pay about $600 for the recommended pruning of two branches. She does not think that she should be required to pay the full cost of works to remove risk of injury. Conclusion 28 The tree has beneficial features and significance to Mr and Mrs Bennett. However, due to unpredictable failure of live branches, and a large amount of significant dead wood in the canopy, the tree is likely to cause injury. Therefore I find that intervention with the tree is necessary to manage the likelihood of injury.

29 I have noted that the Bennetts have not taken any positive action in the past to manage the observable danger of dead wood in the tree, or the reported danger of live branch failure due to decay at a branch fork. At the hearing they were unwilling to take responsibility for the cost of any future tree management.

30 Ms Turner deserves certainty that the likelihood of injury presented by the tree will be managed, and I find that the risk will only be managed by pruning of the tree. On that basis I find Ms Turner's application is upheld in part, and will issue orders for pruning of the tree at the Bennetts' cost. Those orders will not prohibit Mr and Mrs Bennett from carrying out additional pruning or removal of the tree. Orders 31 The Orders of the Court are: A. The application is upheld in part; B. 1) Mr and Mrs Bennett shall prune the Eucalyptus tree by 30 November 2008, at their cost with a $600 contribution from Ms Turner; 2) Ms Turner shall pay the $600 to Mr and Mrs Bennett within 30 days of being given a copy of the receipt for the completed works; 3) All live branches on the eastern side of the tree shall be pruned back to at least 1 m on the western side of the common boundary between 273 and 271 Sunset Strip, Manyana; 4) All dead branches on the eastern side of the tree, having a diameter greater than 20 mm at their point of attachment, shall be pruned back to at least 3 m on the western side of the common boundary between 273 and 271 Sunset Strip, Manyana; 5) The tree pruning shall be done by an arborist with AQF Level 3 qualifications and suitable insurances; 6) The tree pruning shall be done in accordance with AS 4373-2007 Pruning of Amenity Trees ; 7) All tree debris from the work shall be removed from Ms Turner's property at the Bennett's' cost, as part of the tree pruning; 8) Ms Turner shall permit access to her property for the purpose of the tree pruning and cleaning up provided that access is on notice of at least seven days, and the work occurs on normal working days between 7.00 am - 6.00 pm Monday to Friday and 7.00 am - 1.00 pm Saturday, and Ms Turner is able to supervise that access; 9) These orders do not prohibit Mr and Mrs Bennett from additional pruning or removal of the tree.

      Peter Thyer
      Acting Commissioner of the Court
      The formal orders are not included as part of this judgment but a copy may be obtained from the Court's registry upon payment of a fee. Details are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/

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