TREES [NEIGHBOURS] : Damage to propertyrisk of injury
Judgment (1 paragraphs)
[1]
JUDGMENT
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
COMMISSIONER: The applicants purchased their Thirroul property in April 2017. Mr Harradence, the applicants' agent is the former owner of the applicants' property and the first applicant's father. Mr Harradence was the owner of the property in February 2017 when a large green branch fell without warning from a large Eucalyptus pilularis (Blackbutt) growing on the respondents' property. The branch fell onto the applicants' property and damaged a section of the shared dividing fence.
Amongst other things, the applicants are concerned about the risk of possible injury or damage to their property arising from further branch failures, particularly as their dwelling is very close to the tree from which the branch fell.
The applicants have applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for the following orders (as summarised):
1. Prune 2 large branches growing over residence or create remnant relic habitat tree.
2. Prevent the respondent from planting large tree species that will create this problem in the future, creating shade and blocking PV electricity panels, and solar hot water system collector.
3. Remove juvenile Eucalypt species near fence at the back of the house that will shade house in the future.
4. Replace damaged side fence.
In regards to proposed order (2), it would be difficult to make orders for trees that don't yet exist given the jurisdictional tests that apply generally to trees under the Trees Act and Part 2 specifically. Concerning other elements of proposed orders (2) and (3), Part 2 of the Act does not consider shade. While Part 2A considers obstruction of sunlight, the scope of that Part is strictly limited and does not apply to solar panels. The applicants did not own the property at the time the fence was damaged but were presumably aware of its condition when they purchased their property. This is a case of caveat emptor or let the buyer beware (see also Liang & anor v Marsh & anor [2011] NSWLEC 1026]. As such, proposed order (4) will not be made requiring the respondents to pay the full cost of its replacement. As the applicants did not seek to engage s 13A of the Dividing Fences Act 1991, no orders can be made to apply the normal provisions of that Act.
The focus of this judgment is on proposed order (1).
In applications under Part 2, the key jurisdictional test is found in s 10(2). This 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.
As the applicants are concerned about future damage, the guidance decision in Yang v Scerri [2007] NSWLEC 592 has determined that the 'near future' is a period of 12 months from the date of the hearing. In regards to injury, the Court considers the risk posed by a tree in the foreseeable future based on the characteristics of the tree, the history of any failures, any other relevant evidence, and the circumstances of the site apparent at the time of the hearing.
Most of the material in evidence is correspondence between Mr Harradence and the respondents. In response to Mr Harradence's concerns over the failure of the branch, in May 2017 the respondents engaged Mr Paul Vezgoff, a consulting arborist to inspect the tree and prepare a report. Mr Vezgoff attended the on-site hearing and was cross-examined on his report.
According to Mr Vezgoff, the tree is about 27m tall, in good health and condition with minor epicormic growth and some minor twiggy dieback which he considers is normal for this species and a tree of its age. According to the discussion on p 9 of his report (included in Exhibits 1 and A), Mr Vezgoff opines that there is no reason to suspect structural issues or instability. He considers that given the removal of other nearby trees the Blackbutt will have been exposed to more wind loading which may lead to limb failure, especially if the limbs have poor taper. Mr Vezgoff also notes that it is possible that the recent failure was a case of 'summer branch drop". On p 13 of his report, Mr Vezgoff recommends reduction pruning of the two limbs which overhang the applicants' dwelling so as to reduce end weight, plus removal of dead wood and an aerial inspection.
Mr Vezgoff also carried out a Tree Risk Assessment based on a method published by Matheny & Clark, one of the methods used by the arboriculture industry. Mr Harradence takes issue with the result and questions the inputs into the formula; Mr Harradence considers the rating should be higher. The matter was discussed during the hearing but little turns on it.
In June 2017 Mr Harradence engaged Mr Peter Richards, a consulting arborist, to prepare a report. Mr Richards' report is included in Exhibit A. The report is very light on specific detail and relies heavily on generic appendices. While I note that the report was obtained prior to the filing of the Class 2 application, I also note that the report does not take a conventional format and would not comply with the Expert Witness Code of Conduct in Schedule 7 of the Uniform Civil Procedure Rules 2005.
In the summary on p 4 of his report Mr Richards states that the tree exhibits symptoms of decline and structural deterioration though 'sudden branch drop' with branches having failed recently. He states that branch failure has allegedly become more frequent over recent years as several limbs have failed. Mr Richards writes "The subject tree is passing maturity when instances of Sudden Branch Drop usually become more prevalent". He opines that the tree is stressed because of the production of epicormic growth. On the basis of these assumptions, Mr Richards recommends the removal of the tree. Mr Richards was not required by either party to attend the hearing.
Mr Harradence stated that the suggestion for the creation of dead habitat tree came from another arborist who had undertaken tree work on his property.
In regards to the previous limb failures mentioned by Mr Richards but for which there was no evidence in the tree, Mr Harradence stated that in 2015 a large dead branch fell from the tree. As a result of that event, he obtained permission from Wollongong City Council to prune the tree. Permission was given for end weight reduction. Mr Harradence contends that Mr Vezgoff's recommendation for end weight reduction is insufficient to abate the potential problems posed by the two large branches above the dwelling. He cites the 'evidence' that the previous end weight reduction of the tree did nothing to prevent the failure of the large branch in February 2017.
With the benefit of the site inspection and with the arboricultural expertise I bring to the Court I am satisfied that the branch that fell in February 2017 caused damage to shared property on the applicant's land, that is, the dividing fence. This is sufficient to satisfy s 10(2)(a) and engage the Court's jurisdiction to consider what if any orders should be made under s 9 of the trees Act.
In my opinion I concur with Mr Vezgoff's observations that the tree is healthy and shows good vigour. There is very little dead wood and wound occlusion is good. It is not showing abnormal signs of stress; rather, the epicormic growth is a normal feature of the dynamic crown of maturing eucalypts.
It was helpful that the end of the section that failed was retained on site. The branch that failed on a calm day was large and has all the characteristics of 'summer branch drop' or 'sudden limb failure'. While I understand the applicants' concerns, this type of branch failure is unpredictable and could be a one-off event. Given the nature of this type of failure, the reduction of end weight somewhere in a tree is unlikely to have any bearing on the sudden failure of another limb. With the aid of binoculars, I saw no obvious defects at the base of either of the two limbs the applicants seek to have removed. I can see little if any merit in reducing the end of the branches as these are healthy and appear well attached. Likewise, there is no evidence to support the removal of the entire tree. I am also unconvinced, on the basis of a single event, that the two large and otherwise healthy branches should be removed when there is no foreseeability of any failure in the court's usual time frame. As such, no orders will be made for any pruning of the tree however I am satisfied that the respondents are well aware of the applicants' concerns.
Should the circumstances change a new application can be made.
Therefore as a consequence of these findings, the Orders of the Court are:
1. The application is dismissed.
Judy Fakes
Acting Commissioner of the Court
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 November 2017