Allan v Ward

[2024] NSWLEC 1384

Land and Environment Court

New South Wales

Medium Neutral Citation:

Allan v Ward [2024] NSWLEC 1384

Hearing dates:

25 June 2024

Date of orders:

25 June 2024

Decision date:

25 June 2024

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1)   The application to remove the tree is granted.

(2)   The respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3), with all appropriate insurances, to remove the tree to ground level within 42 days of the date of these orders. These works are to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.

(3)   The respondent is to give the applicants 2 days’ notice of the works in Order (2).

(4)   The applicants are to allow all access necessary for the works during reasonable hours of the day.

(5)   Within 3 months of the date of these orders, the respondent is to plant two Angophora costata trees on her property.

(6)   The exhibits are returned, other than Exhibit A.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) –whether neighbouring tree is likely to cause damage or injury – whether the applicant has contributed to death of the tree – who should pay for tree works – orders for tree removal

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, ss 7, 9, 10, 12

Cases Cited:

Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152

Texts Cited:

Hornsby Development Control Plan 2013

Safe Work Australia, Guide to managing risks of tree trimming and removal work (2016)

Category:

Principal judgment

Parties:

David Allan (First Applicant)
Gai Allan (Second Applicant)
Fiona Ward (Respondent)

Representation:

Counsel:
M Swanson (Applicants)
No appearance (Respondent)

Solicitors:
Christopher C. Freeman & Co (Applicants)

File Number(s):

2024/134177

Publication restriction:

Nil

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Background

1. COMMISSIONER: Gai and David Allan (the Allans, or the applicants) have applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) seeking orders for the owner of the neighbouring Cheltenham property, Fiona Ward (the respondent), to remove a tree on her land.

2. At a Directions Hearing on 14 May 2024, the Court set out a timeframe for the parties to file evidence and serve relevant documents, and set down the final hearing for today, 25 June 2024.

3. At this morning’s onsite hearing, the Court inspected the tree and relevant parts of both properties. One day before the hearing, Ms Ward asked for the matter to be adjourned due to her sudden unavailability and the unavailability of Mr John Watkins, who she had nominated to represent her as her agent. The adjournment was refused and the hearing proceeded this morning ex parte. Mr Gillet, an occupier of Ms Ward’s property, pointed out several features on her land as she had requested. Mr Swanson represented the Allans. Mr Williams, a consulting arborist engaged by the Allans, prepared a report on the tree.

Framework for this decision

4. Pursuant to s 7 of the Trees Act, the Allans have applied to the Court for an order to prevent damage to their property and to prevent injury to any person as a consequence of a tree on adjoining land. They want Ms Ward to remove the tree at her expense.

5. The order sought is one that the Court may make according to s 9 of the Trees Act. Before making such an order, the Court must be satisfied of certain matters at s 10 of the Trees 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.

(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.

6. If the tests at s 10 are satisfied, the Court must consider a range of matters at s 12 of the Trees Act before determining the application.

Reasonable effort to reach agreement

7. The Allans wrote to Ms Ward, in an email of 3 December 2023, asking her to remove a dead tree on her property because its branches were likely to fall onto and damage their property. Ms Ward does not live at her property. The Allans included photographs so that there could be no confusion regarding the tree in question. Correspondence filed by Ms Ward demonstrated that she received the Allans’ email.

8. Ms Ward responded, raising other issues including water run-off from the Allans’ property onto hers. She sought mediation through the Community Justice Centres, but the Allans did not accept the invitation to mediate. Mr Swanson explained that there are several causes of dispute between these neighbours and it was unclear to the Allans which issue Ms Ward was seeking to have mediated. The requirement for the applicants to make reasonable effort to reach agreement at s 10(1) of the Trees Act might be satisfied when objectively it is unlikely that further negotiations would result in agreement: Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (at [195]). With the evidence before the Court, I am satisfied that the Allans made a reasonable effort to reach agreement with Ms Ward, and that the required notice was given.

The tree

9. The subject tree is an Angophora costata (Sydney red gum) (the tree) only a short distance from the common boundary between the two properties. Mr Williams, the arborist engaged by the Allans, described the tree as 17 metres tall with a crown spread of 8 metres and a stem diameter of approximately 50 centimetres. He found the tree was dead, which was evident at the onsite view.

The tree is likely to cause damage or injury

10. Dead branches overhang the Allans’ property. Mr Williams undertook a risk assessment, finding there was a high risk that dead branches would cause damage to service wires entering the Allans’ property, and a moderate risk that dead branches would damage other elements of their property or injure a person. He also found a moderate risk that failure of the entire tree would cause damage to the Allans’ property.

11. I accept and adopt Mr Williams’ findings regarding the risk of branch failure. Some action is required to mitigate the risk of damage or injury from branch failure. I do not accept his finding that whole tree failure is probable within the next 12 months, but that has no bearing on the outcome reached below.

12. Mr Williams found the risk of damage or injury could be mitigated in the short term by removing the branches and reducing the stem to a height of 10 metres, or more permanently by removing the tree. While short-term mitigation is an option, for reasons I will explain below, tree removal is a more appropriate solution.

Relevant matters considered

13. I have considered those matters at s 12 of the Trees Act that are relevant to these proceedings.

14. The tree is close to the common boundary, with dead branches overhanging the Allans’ property.

15. The tree would be exempt from consent requirements under the Hornsby Development Control Plan 2013 (at Part 1B.6.1 Tree Preservation):

“Exempt Tree Work

d. The following exemptions to this part apply as set out below:

▪ The removal of a tree deemed by Council in writing and shown by recorded photographic evidence to be dead and is not required as the habitat of native fauna.

…”

16. The tree contains no habitat hollows.

17. The tree makes little positive contribution to environmental values or local amenity.

18. Ms Ward alleges that the tree has died due to waterlogging of the soil on that part of her property near the Allans, which she says results from water run-off from the Allans’ property. In her written material filed with the Court, Ms Ward explained that she thinks the Allans’ pool leaks. Mr Gillet, who resides at her property, pointed out waterlogged areas to the Court during the onsite view. Ms Ward says this has killed the subject tree and several others in the vicinity.

19. Any acts or omissions of the applicants that have led to the tree dying and becoming a risk would be a consideration for the Court when ordering who should pay for the works. But here, I accept Mr Swanson’s submissions that the respondent has not shown, on the balance of probabilities, that waterlogging caused the tree’s death. I accept that it is possible, but I cannot be satisfied of this to the level required for me to order the applicants to pay for the works. Therefore, Ms Ward will bear the cost of tree removal.

20. Due to the high soil moisture levels around the tree, root pathogens are likely to affect root structure in the foreseeable future. While removing only the tree’s crown would mitigate the risk in the short term, the risk of root failure will increase within a few years, so it is more appropriate to order removal of the entire tree to resolve this element of the neighbours’ dispute.

21. The Allans suggested a timeframe of 42 days within which the tree should be removed. Ms Ward made no submissions on this, so I will make orders as requested by the Allans.

22. When ordering tree removal, the Court can require the replacement of the tree (s 9 of the Trees Act). Such an order is included below.

Orders

23. The Court orders:

1. The application to remove the tree is granted.

2. The respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3), with all appropriate insurances, to remove the tree to ground level within 42 days of the date of these orders. These works are to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.

3. The respondent is to give the applicants 2 days’ notice of the works in Order (2).

4. The applicants are to allow all access necessary for the works during reasonable hours of the day.

5. Within 3 months of the date of these orders, the respondent is to plant two Angophora costata trees on her property.

6. The exhibits are returned, other than Exhibit A.

……………………………….

D Galwey

Acting Commissioner of the Court

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Decision last updated: 04 July 2024