Wright v Murphy

Land and Environment Court (NSW)|2024-02-22

Background

COMMISSIONER: Robert Murphy, the respondent, owned two adjoining 'bush blocks' overlooking Mooney Mooney Creek in Cheero Point for about 43 years. Mr Murphy recently sold one block to Andrew Wright, the applicant, and plans to build a dwelling towards the rear of the adjacent block.
After accepting an offer from Mr Wright, the respondent claimed to have received a much higher offer from a neighbour. Nonetheless, Mr Murphy chose to honour the offer he had accepted from Mr Wright, and the sale was completed. The respondent submitted that Mr Wright said his proposed dwelling would blend with the environment and had claimed to have no money to pay a higher price for the block.
Soon after, Mr Murphy was notified of Mr Wright's development application (DA) from Central Coast Council (Council). Mr Murphy was dissatisfied that Mr Wright's proposed dwelling was much larger than expected, included a swimming pool, and required various trees to be removed and he alleged that Mr Wright had misrepresented his intentions during negotiations.
A comprehensive Arboricultural Impact Assessment, dated 24 October 2023, was produced for Mr Wright by Temporal Tree Management (Temporal report). In the Executive Summary, seven trees which "will require removal to facilitate the proposed development" were identified as they "will sustain major TPZ encroachments that are likely to have a severe impact on their viability. The impact of these major encroachments cannot be suitably mitigated without major alteration to the proposed design plan". TPZ is an abbreviation of Tree Protection Zone. The report recommended replanting within the adjacent undisturbed bushland to compensate for the tree removals.
A Corymbia gummifera (Red Bloodwood) (the tree), one of the trees identified for removal, was located on Mr Murphy's land very close to the common boundary. It was assigned a "High Retention Value" in the Temporal report and Mr Murphy refused Mr Wright's request for removal of the tree. Mr Wright considered the building alterations required to accommodate the tree's safe retention would compromise his development, thus he was loath to make changes. Mr Wright made ongoing requests for removal of the tree amongst negotiations around other issues, such as privacy, but Mr Murphy was resolute in his refusal to remove the tree.

The onsite hearing

Mr Wright and Mr Murphy were self-represented at the onsite hearing, which commenced with an inspection of both properties. The tree was located about 100 millimetres (mm) from the common boundary and about 20 metres (m) from the respondent's front boundary.
In the Temporal report, the tree was listed as 20 m tall, 8 m canopy spread, and 32 centimetres (cm) diameter at breast height (DBH). It was assessed as maturing, of good health and structure, and of long useful life expectancy.

The applicant's proposed orders "1. Removal of tree known as Tree 15 on the DA Development plan to allow the council to approve the DA application. 2. Cost to be shared by both parties."

Jurisdictional requirements

With respect to s 7, 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 this Act applies that is situated on adjoining land.
The applicant has satisfied the requirement under s 8(1)(a) of the Act: to serve notice of application and proposed orders to the respondent more than 21 days prior to the proceedings. I found no evidence, however, of Mr Wright serving the application documents to Council, as required at under s 8(1)(b). The Court may waive the requirement to give notice or vary the period of notice under this section if it thinks it appropriate to do so in the circumstances, through powers provided at s 8(3) of the Act. Considering the circumstances of this dispute, I waived the applicant's requirement to serve the documents on Council.
The Court's ability to make orders is limited, at s 10 of the 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. …
Mr Wright provided undisputed evidence of three face to face meetings and ongoing email communication with Mr Murphy which included repeated requests for removal of the tree. The protracted negotiations were often acrimonious, and issues appeared clouded by aspersions and indignation. Nonetheless, the Act does not prescribe the nature of negotiations and such evidence submitted to the Court is relevant only in relation to the requirement of the applicant to make a reasonable effort to reach agreement with the owner of the land on which the tree is situated. Therefore, I was satisfied that s 10(1)(a) of the Act was engaged. Section 10(1)(b) was also engaged by satisfaction of s (8) of the Act.
Therefore, the principal jurisdictional tests in this matter are at s 10(2) of the Act, which states: (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 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.

Damage and likely injury to persons attributed to the tree

In his Tree Dispute Claim Details (Form H), at question 4, Mr Wright claimed that the tree "is 20 m tall and the block is 9 m wide. The arborist report states that Tree 15 (the tree) will die when the house foundation and the boundary retaining wall is built." Mr Wright submitted that, "The Central Coast Council has stated that the tree must be removed for the DA to proceed. The tree will become a danger after the tree roots have been cut by the new building. At 20 m, the tree will not only reach the new home but also fall on both (neighbouring) existing homes, putting in danger all 3 homes".
With respect to anything, other than the tree, contributing to any such damage, at question 5 of Form H, the applicant noted, "In order to build the home within height restriction the rear of the house has to have some excavation and a retaining wall will have to be built. The building of the retaining wall will render the tree unsafe, unstable, and dangerous to three homes."
Mr Wright also claimed the tree was likely to cause injury to persons inside the three aforementioned homes, and that tree failure "could cause the pool to burst sending a large wash of water flowing down the hill, damaging the foundations of the new home". At question 16 of Form H, Mr Wright sought to be allowed to remove the tree from the respondent's land.
Mr Murphy submitted that the tree would only become dangerous if the roots were cut but there was no basis for the roots to be cut because Mr Wright's DA had been rejected by Council. Thus, Mr Wright does not have development consent for his proposed dwelling. Mr Murphy noted data in the Temporal report, which described the tree as healthy, of high Landscape Significance and high Retention Value.
"Therefore the Applicant has not and cannot demonstrate that Tree 15 (the tree) has caused, is causing or is likely in the near future to cause damage to the applicant's property or injury to any person", Mr Murphy claimed.

Findings

Council's powers regarding trees under the Central Coast Development Control Plan 2022 are permissive not coercive. Council may grant permission for the removal of trees, but, except in extraordinary circumstances, cannot order the removal of trees.
The tree had not caused damage and was not causing damage to the applicant's property. Based on the decision of Yang v Scerri [2007] NSWLEC 592, the near future is defined, as a rule of thumb, to be a period of one year. Following the decision in McPherson v Lake [2017] NSWLEC 1081 at [10], in considering injury, the Court must assess and determine 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.
The tree was healthy and sound and displayed no evidence suggesting instability of anchorage in the ground. In the absence of an approved DA, there was no foundation for finding that either damage in the near future or risk to persons in the foreseeable future are likely. A similar finding was made in Bhuta v Cefai [2023] NSWLEC 1330; at [25]: "I concur with Mr Koikas that issues arising from the applicants' DA should have no bearing on this case as the DA was rejected by Council."
Consequently, s 10(2) of the Act was not engaged, thus the application is refused.
Had s 10(2) been engaged, however, the Act requires consideration of discretionary elements in s 12. In this respect, the arboricultural expertise I bring to the Court may assist the parties.
I appreciate that the tree is of good health and condition and makes important contributions to the local ecosystem and biodiversity, but I concur with Mr Wright that it has a relatively small, sparse canopy. In the context of the site, the tree was relatively inconspicuous.
Many tree species growing on sandstone-based soil landscapes are sensitive to root disturbance and Red Bloodwood are particularly sensitive to both root severing and changes to soil levels. The Australian Standard for the Protection of Trees on Development Sites (AS 4970:2009) stipulates a TPZ of 12 x DBH. Based on data from the Temporal report, the TPZ required for the tree is 0.32 m x 12 = 3.2 m. While some incursion into the TPZ is permissible and appropriate with less sensitive species, it would not be appropriate for a Red Bloodwood approaching maturity. Therefore, the building modifications required to accommodate the tree would not be trivial but would be relatively substantial (s 12(d)).

Orders

The Court orders that: 1. The application is refused.

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Mr Wright provided undisputed evidence of three face to face meetings and ongoing email communication with Mr Murphy which included repeated requests for removal of the tree. The protracted negotiations were often acrimonious, and issues appeared clouded by aspersions and indignation. Nonetheless, the Act does not prescribe the nature of negotiations and such evidence submitted to the Court is relevant only in relation to the requirement of the applicant to make a reasonable effort to reach agreement with the owner of the land on which the tree is situated. Therefore, I was satisfied that s 10(1)(a) of the Act was engaged. Section 10(1)(b) was also engaged by satisfaction of s (8) of the Act.
Therefore, the principal jurisdictional tests in this matter are at s 10(2) of the Act, which states:

(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

If the jurisdictional tests at s 10 of the 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.

Damage and likely injury to persons attributed to the tree

In his Tree Dispute Claim Details (Form H), at question 4, Mr Wright claimed that the tree "is 20 m tall and the block is 9 m wide. The arborist report states that Tree 15 (the tree) will die when the house foundation and the boundary retaining wall is built." Mr Wright submitted that, "The Central Coast Council has stated that the tree must be removed for the DA to proceed. The tree will become a danger after the tree roots have been cut by the new building. At 20 m, the tree will not only reach the new home but also fall on both (neighbouring) existing homes, putting in danger all 3 homes".
With respect to anything, other than the tree, contributing to any such damage, at question 5 of Form H, the applicant noted, "In order to build the home within height restriction the rear of the house has to have some excavation and a retaining wall will have to be built. The building of the retaining wall will render the tree unsafe, unstable, and dangerous to three homes."
Mr Wright also claimed the tree was likely to cause injury to persons inside the three aforementioned homes, and that tree failure "could cause the pool to burst sending a large wash of water flowing down the hill, damaging the foundations of the new home". At question 16 of Form H, Mr Wright sought to be allowed to remove the tree from the respondent's land.
Mr Murphy submitted that the tree would only become dangerous if the roots were cut but there was no basis for the roots to be cut because Mr Wright's DA had been rejected by Council. Thus, Mr Wright does not have development consent for his proposed dwelling. Mr Murphy noted data in the Temporal report, which described the tree as healthy, of high Landscape Significance and high Retention Value.
"Therefore the Applicant has not and cannot demonstrate that Tree 15 (the tree) has caused, is causing or is likely in the near future to cause damage to the applicant's property or injury to any person", Mr Murphy claimed.

Council's powers regarding trees under the Central Coast Development Control Plan 2022 are permissive not coercive. Council may grant permission for the removal of trees, but, except in extraordinary circumstances, cannot order the removal of trees.
The tree had not caused damage and was not causing damage to the applicant's property. Based on the decision of Yang v Scerri [2007] NSWLEC 592, the near future is defined, as a rule of thumb, to be a period of one year. Following the decision in McPherson v Lake [2017] NSWLEC 1081 at [10], in considering injury, the Court must assess and determine 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.
The tree was healthy and sound and displayed no evidence suggesting instability of anchorage in the ground. In the absence of an approved DA, there was no foundation for finding that either damage in the near future or risk to persons in the foreseeable future are likely. A similar finding was made in Bhuta v Cefai [2023] NSWLEC 1330; at [25]: "I concur with Mr Koikas that issues arising from the applicants' DA should have no bearing on this case as the DA was rejected by Council."
Consequently, s 10(2) of the Act was not engaged, thus the application is refused.
Had s 10(2) been engaged, however, the Act requires consideration of discretionary elements in s 12. In this respect, the arboricultural expertise I bring to the Court may assist the parties.
I appreciate that the tree is of good health and condition and makes important contributions to the local ecosystem and biodiversity, but I concur with Mr Wright that it has a relatively small, sparse canopy. In the context of the site, the tree was relatively inconspicuous.
Many tree species growing on sandstone-based soil landscapes are sensitive to root disturbance and Red Bloodwood are particularly sensitive to both root severing and changes to soil levels. The Australian Standard for the Protection of Trees on Development Sites (AS 4970:2009) stipulates a TPZ of 12 x DBH. Based on data from the Temporal report, the TPZ required for the tree is 0.32 m x 12 = 3.2 m. While some incursion into the TPZ is permissible and appropriate with less sensitive species, it would not be appropriate for a Red Bloodwood approaching maturity. Therefore, the building modifications required to accommodate the tree would not be trivial but would be relatively substantial (s 12(d)).

(Disputes between Neighbours) Act 2006

Trees (Disputes between Neighbours) Act 2006

At a glance

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Judgment (15 paragraphs)

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Legislation Cited (2)

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