Zadel v Cox

Land and Environment Court (NSW)|2012-02-24

Judgment 1COMMISSIONER: This is an application under s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Heathcote against the owner of mature Eucalyptus botryoides (Southern Mahogany) growing on an adjoining property. 2The applicant is seeking the removal of the tree on the basis that over a number of years, dead branches falling from the tree have broken many roof tiles. In one instance in March 2011, branches fell from the tree in a storm, tiles were broken, and as a result, water damage occurred to the house necessitating an insurance claim. Since that storm, the applicant alleges that further damage has been caused to the roof. The applicant is also concerned that falling branches may injure anyone on his property. The applicant is not seeking any compensation for any damage. 3The respondent obtained an arborist's report from Moore Trees. The respondent stands by the recommendation in that report that after an initial cleanout of dead wood, the tree should be reinspected every 2 years.

The tree and the damage 4The on-site hearing commenced with an inspection of the tree from the respondent's property. The tree is growing in the south-western corner of the respondent's backyard. Binoculars were used to view the upper parts of the canopy. I observed the tree to be healthy with no obvious structural defects. There is less than 5% dead wood in the tree. I agree with the arborist's findings that previous pruning cuts have occluded well. 5From its size (over 20m tall), including its girth (>1m in diameter), it would appear to be a remnant of the original vegetation. The tree is about 3.5m from the common boundaries between the parties and approximately 6m from the applicant's dwelling. A portion of the tree overhangs the applicant's dwelling. The overhanging branches are healthy and appear structurally sound; there is a small amount of dead wood in the overhanging section. It is clear from the tree, and from the application, that lower branches have been removed. 6The applicant's property is to the west. The property is duel occupancy; the applicant resides in the dwelling at the rear of the block. The dwelling is about a metre or so below the original soil level. The dwelling was built about 15 years ago; the roof tiles are concrete. Photographic evidence included in the application shows broken tiles and ridge capping as well as dead branches on the ground and on the roof. The photos also show areas where tiles have been replaced. The photographs were taken in 2011 after the tree was pruned in 2010 (at the applicant's cost). 7When questioned as to whether the tiles had been damaged by dead or live branches, the applicant replied that dead branches had caused all of the damage. He said that while small green branches come down occasionally, they don't cause any problems. When asked to indicate the size of branches that caused the damage from a pile of dead wood at the base of the tree, the applicant indicated branches of about 30mm in diameter and greater.

The Court's jurisdiction 8Under s 10(2) of the Act, the Court must not make an order unless it is satisfied that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant's property or is likely to cause injury to any person. 9In this matter, I am satisfied that dead wood falling from the tree has caused damage to the applicant's dwelling and could continue to do so. The respondent does not contest the evidence. 10As s 10(2) is satisfied, the jurisdiction is engaged and the Court may make orders under s 9 of the Act. This requires consideration of a number of discretionary matters under s 12. The following clauses are considered relevant. (a)The tree is wholly located on the respondent's property but part of its canopy overhangs the applicant's dwelling. (b2) The removal of dead wood will not have any adverse impact on the health or structural integrity of the tree as long as it is removed in accordance with AS4373:2007 - Pruning of Amenity Trees . (d) The tree is likely to be a remnant of the original plant community and therefore it will contribute to the local ecosystem and to biodiversity. (e,f) The tree contributes to the scenic value of the land on which it is growing and to public amenity. It is clearly visible from surrounding streets and contributes to the landscape character of the locality. (h) Things other than the tree and actions of the parties. See paragraph 11 below. 11Each party raised a number of matters in submissions. Both parties cited the Tree Dispute Principle in Black v Johnson (No 2) [2007] NSWLEC 513 at [15]. This principle states: 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. 12Mr McHugh for the respondent contends that the applicant chose to construct his dwelling beneath the tree when perhaps a more suitable location on the block could have been selected. In addition, the applicant chose concrete tiles rather than something less likely to be damaged by falling branches such as a metal roof. In this regard, he submits that the respondent and the applicant should share the cost of regular pruning of the tree. 13Ms Zadel for the applicant (her father) considers that the principle accommodates the seriousness of the damage. With respect to other actions, she also presses the fact that her father has undertaken all of the repairs to the roof himself and has asked for no compensation. She also contends that her father paid for the pruning of the tree even though it is not his tree. The applicant has sought and gained permission from Sutherland Shire Council for pruning of the tree, and then on review, removal of the tree. To that end, Ms Zadel submits that it should now be the respondent's responsibility to pay for further pruning.

Findings and orders 14As stated above, I am satisfied that falling branches from the tree have caused, and could in the near future cause, damage to the applicant's dwelling. The damage and been caused by dead wood and there is no evidence that any falling green branches have caused damage or are likely to do so in the near future. Similarly, there is no evidence to suggest the failure of the entire tree, something raised during the hearing. 15In regards to the parties' submissions on Black v Johnson it would appear to me that council approved the dwelling and it is assumed that it complied with the necessary setbacks. The applicant's block is not especially wide so relocation of the dwelling would have been difficult. As to the choice of roof material, this may have been a council requirement as most nearby dwellings have tiled roofs. I also accept the applicant's arguments that to date, the costs of the damage and the pruning have been borne by the applicant. Therefore, I find no reason to order the sharing of the cost of regular pruning. 16Given the apparent frequency of damage, I am satisfied that annual removal of dead wood greater than or equal to 30mm at its base is required in order to prevent future damage or injury. The area from which dead wood is to be removed includes all overhanging parts and a portion inside the respondent's property to ensure that dead wood falling in that zone does not bounce off other branches and onto the applicant's roof. 17Therefore the Orders of the Court are: (1)The application to remove the tree is dismissed. (2)The respondent is to engage and pay for an AQF level 3 arborist to remove all deadwood > 30 mm is diameter at its base (including stubs) from all parts of the tree that overhang the applicant's property to a distance of 5m inside the respondent's property. Any additional pruning is at the respondent's discretion in accordance with any approvals from Sutherland Shire Council. (3)The work is to be carried out in accordance with AS4373:2007 and the WorkCover Code of Practice for the Amenity Tree Industry. (4)The applicant is to provide all reasonable access for the works to be carried out in a safe and efficient manner on two working days (verbal) notice. (5)The initial pruning to be carried out within 30 days of the date of this judgment. (6)Orders 2, 3 and 4 are to be carried out annually within 14 days either side of the anniversary of the initial pruning.

J Fakes 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: 24 February 2012

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