Amjadi v Smith

[2021] NSWLEC 1648

Land and Environment Court

New South Wales

Medium Neutral Citation:

Amjadi v Smith [2021] NSWLEC 1648

Hearing dates:

18 August 2021

Date of orders:

26 October 2021

Decision date:

26 October 2021

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

See orders at [25]

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – large tree overhanging dwelling – whether the tree has caused damage – whether further damage or injury is likely – whether respondents have taken appropriate action – orders for pruning, inspection and report

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 6, 7, 9, 10, 12

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292

Jackson v Phillips [2019] NSWLEC 1271

Yang v Scerri [2007] NSWLEC 592

Texts Cited:

AS 4373-2007 ‘Pruning of amenity trees’

Safe Work Australia, ‘Guide to managing risks of tree trimming and removal work’, 2016

Ku-ring-gai Development Control Plan 2021, Pt 13.2

Category:

Principal judgment

Parties:

Shahin Amjadi (Applicant)
Marea Annette Smith in her capacity as Executor & Trustee of the Estate of Patricia Margaret Susannah Smith aka Patricia Margaret Susanne Smith (First Respondent)
Michael Christopher Smith in his capacity as Executor & Trustee of the Estate of Patricia Margaret Susannah Smith aka Patricia Margaret Susanne Smith (Second Respondent)
Antoinette Louise Mary Smith in her capacity as Executor & Trustee of the Estate of Patricia Margaret Susannah Smith aka Patricia Margaret Susanne Smith (Third Respondent)
The Estate of Patricia Margaret Susannah Smith aka Patricia Margaret Susanne Smith, by her Executors Marea Annette Smith, Michael Christopher Smith and Antoinette Louise Mary Smith (Fourth Respondent)

Representation:

S Amjadi (Litigant in Person) (Applicant)
R Di Donato (Solicitor) (First and Second Respondents)
A Smith (Litigant in Person) (Third Respondent)

Solicitors
Romano Di Donato (First and Second Respondents)

File Number(s):

2021/35535

Publication restriction:

No

Judgment

Background to the application

1. Shahin Amjadi (‘the applicant’) has lived at his St Ives property since 1990. A mature gum tree (‘the tree’) on a neighbouring property, close to the common boundary, spreads across the boundary and overhangs his dwelling. Patricia Smith, who was Mr Amjadi’s neighbour for many years and owned the tree, passed away in 2018. Concerned about the risk of property damage and injury to his family from the tree, over the years Mr Amjadi had discussed the tree with Ms Smith, who arranged for some branches to be pruned around 15 years ago. Despite wanting further action more recently, Mr Amjadi did not press the matter with Ms Smith because she was elderly. Ms Smith’s estate is now in the hands for her three children. Since 2019, Mr Amjadi has spoken with Michael Smith, one of Ms Smith’s children, seeking some response to his concerns; he has written letters and attempted mediation to resolve the issue, all unsuccessfully. In February 2021 (amended April 2021 to include all respondents) Mr Amjadi 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 removal of the tree and its roots, and for compensation for property damage. The respondents are Ms Smith’s three children in their capacity as executors to Ms Smith’s estate: Marea Smith (‘the first respondent’), Michael Smith (‘the second respondent’) and Antoinette Smith (‘the third respondent’); as well as Ms Smith’s estate (‘the fourth respondent’).

The hearing

2. The matter was heard via MS Teams. The applicant and the third respondent were self-represented; Mr Di Donato represented the first and second respondents. I explained that a subsequent site inspection would be arranged if that seemed necessary to complete the decision, but at the end of the hearing I informed the parties that I had sufficient material from the adduced evidence and from their submissions to make this decision without a site inspection. I bring my own arboricultural expertise to this decision.

Framework for this decision

3. Before making orders, the Court must be satisfied that the applicant has made reasonable effort to reach agreement with the tree owner (s 10(1)(a) of the Trees Act).

4. Under Pt 2 of the Trees Act, the Court can only make orders if 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 (s 10(2) of the Trees Act). The Court must consider a range of matters at s 12 of the Trees Act before making orders such as those set out at s 9.

The applicant made reasonable effort to reach agreement

5. Mr Amjadi explained that he had tried to resolve the issue with Ms Smith over many years, both verbally and in writing. He later spoke with Michael Smith, who was living at the respondents’ property. He wrote to the executors of Ms Smith’s estate. He received a reply that was unhelpful. He twice attempted to resolve the issue via mediation at the Community Justice Centre. I appreciate that the last few years must have been a difficult time for the respondents. Nevertheless, Mr Amjadi’s efforts to resolve the issue were reasonable.

The tree

6. No tree reports have been filed by the parties. In photographs the tree appears to be a Sydney Blue Gum (Eucalyptus saligna) or similar species. Mr Amjadi estimates the tree is more than 20 metres tall, and it appears so. The tree grows in the front setback of the respondents’ property. The applicant’s dwelling is further forward on his property than the respondents’ dwelling is on theirs, such that the tree is effectively alongside his dwelling. Its base is less than 1.5 metres from the common boundary fence and less than 3 metres from Mr Amjadi’s dwelling. The tree’s spreading crown is relatively well balanced, so large branches extend over Mr Amjadi’s property and overhang his dwelling. In photographs, the tree appears to be healthy and growing vigorously, with good structural form.

The tree has caused damage and is likely to cause damage or injury

The applicant’s position

7. The grounds for Mr Amjadi’s application are as follows. Mr Amjadi claimed that branches which have fallen from the tree have damaged his roof tiles. He stated that about 15 tiles are visibly damaged as a result of fallen branches. The ceiling in his dwelling suffered water damage after tiles were broken. He is concerned that more branches will fall, either onto his roof where they will cause further damage, or onto his family when they are outdoors, causing serious injury. Mr Amjadi expressed his concern at the amount of leaves, branches and other debris that falls onto his roof, and the danger that cleaning the roof and gutters puts him in. In 2002 he fell from the roof while clearing it of debris from the tree and was badly injured. Mr Amjadi also expressed his concern that the tree’s roots, some of which clearly enter his property close to his dwelling, will cause structural damage to the dwelling. Mr Amjadi obtained a quote of $17,204 to remove all tiles from his roof and replace them with colourbond roofing. He also obtained a quote to remove the tree, and offered to contribute $500 to the cost of its removal. Given the clear history of branch failure, and the obvious risk of further damage, Mr Amjadi submitted he should not be required to pay for a report on the tree.

The respondents’ position

8. This can be no easy period in the respondents’ lives. Material they filed in these proceedings charted some of their personal difficulties, which do not need addressing here as they are not relevant to this decision. They are involved in other proceedings which no doubt overshadow this tree dispute. I address here only their submissions and evidence relevant to this decision. Some of the history described in various statements is clearly of meaning to the respondents but has little or no effect here.

9. While the respondents’ submissions were made separately by Mr Di Donato for the first and second respondents, and by Antoinette Smith as the third respondent, they presented together the following position for the respondents.

10. The respondents submitted that there is no evidence showing branches from the tree have caused damage to Mr Amjadi’s roof. Some minor damage can be seen in photographs, but its cause is unknown. The roof is old and weathered. Even if branches had broken a few tiles, it would be unreasonable for the respondents to pay to replace the applicant’s entire roof. Leaf litter falling onto the roof is to be expected, and such debris falls not only from this tree but also from other trees around Mr Amjadi’s property. The tree is healthy and part of the local ecosystem. Any need for pruning is unknown without a report from an arborist. Mr Amjadi has not provided them with a tree report from an arborist and, considering the tree’s good health, there is no reason for them to commission such a report. The respondents submitted that the tree would not satisfy any of the reasons that might justify its removal in Ku-ring-gai Council’s published tree assessment guidelines. There is apparently no structural damage to the dwelling or other property resulting from root growth, and the applicant has provided no evidence showing such damage is likely.

11. The respondents submitted that the Court cannot be satisfied that the tree has caused damage to Mr Amjadi’s property, nor that it is likely to do so in the near future, nor that it is likely to cause injury, so pursuant to s 10(2) of the Trees Act, no orders can be made.

Findings

12. While it is true that Mr Amjadi’s evidence demonstrating past damage is limited, this is unsurprising. Small dead branches falling from a tall tree can break roofing tiles, but a photograph taken later can only show the broken tile, not the moment the branch impacted the roof. It seems likely that such damage will occur occasionally in this situation – this large tree extending over his dwelling has, by all reports, not been pruned for many years. I accept that fallen branches have broken some roof tiles, although the extent of damage is relatively minor. It is unclear what period passed between the breaking of tiles and water damage to Mr Amjadi’s ceiling. I do not regard that element of damage (water damage to the ceiling) as being caused by the tree.

13. Clearly the tree has not been pruned for many years. Branches die off within the crowns of mature eucalypts such as this – it is inevitable that even a healthy tree such as this will have deadwood of a size that can cause damage or injury. I accept Mr Amjadi’s submission that branches are likely to fall from the tree in the near future, and such branches are likely to cause damage to his dwelling. Branches might also cause injury. I regard ‘the near future’ as a period covering the next 12 months or so, as per the principle at [14] in Yang v Scerri [2007] NSWLEC 592.

14. Debris that falls onto Mr Amjadi’s roof clearly causes him some nuisance, but other than branches discussed above, does not directly cause damage. If left there for some time it might cause damage such as discoloration, but that could be avoided by reasonable maintenance, as per the principle at [20] in Barker v Kyriakides [2007] NSWLEC 292. Clearing the roof of debris has some risk – Mr Amjadi has injured himself while carrying out this task. However, the Court’s jurisdiction is limited to making orders to prevent damage caused by the tree, not damage caused by one’s own actions: Jackson v Phillips [2019] NSWLEC 1271 at [9].

Matters at s 12

15. Having established that the tree is likely to cause damage to Mr Amjadi’s property in the near future, or injury to a person, I can proceed to make orders after considering matters at s 12 of the Trees Act. I have considered all matters at s 12 and discuss below those that are relevant.

The tree’s location

16. The tree is close to the common boundary and less than 3 metres from Mr Amjadi’s dwelling wall. The tree overhangs his dwelling.

Council consent

17. Ku-ring-gai Council’s consent would be required to remove the tree and for some pruning works. Exemptions are set out at Pt 13.2 of the Ku-ring-gai Development Control Plan 2021 (‘the DCP’) and include:

“Tree branches directly over roof lines

i) removal of tree branches which directly overhang the roof of a residence or commercial building, if pruned back to the nearest branch junction or collar to remove from the roofline;

…

Note: Pruning must be consistent with the Australian Standard for Pruning of Amenity Trees (AS4373-2007), and must not result in a detrimental impact to the future health or stability of the tree or compromise the form of the tree. For example, removal of all branches from one side of a tree over a roof line would not be exempt.

…

Removal of dead wood

i) completely dead branches attached to tree(s) and other vegetation within the property may be removed.

Note: pruning is consistent with the Australian Standard for Pruning of Amenity Trees (AS 4373-2007).”

18. Removing selected branches, but not all branches, above Mr Amjadi’s dwelling, and removing dead branches, would be exempt from consent requirements.

The tree’s benefits

19. This indigenous tree is part of the local ecological community. It can be seen from public areas, so contributes to public amenity. It delivers shading, cooling and other ecosystem services. It provides habitat for birds and other fauna. Its removal would have a significant impact on the landscape character of the respondents’ property and the neighbourhood.

Impacts of pruning

20. The tree would tolerate pruning if done according to AS4373 Pruning of amenity trees. According to Mr Amjadi, the tree was last pruned some 15 years ago, but few branches were removed. Deadwood has developed since then. Photographs also indicate some branches are becoming overextended, as often happens when forest trees grown in a more open environment. These issues can be dealt with by pruning; they do not warrant the tree’s removal. Although I have not had the benefit of a site inspection, structural defects in the crown may not be visible during a ground-based inspection. They can, however, be identified and addressed by an arborist carrying out routine pruning works.

Actions or omissions of the parties

21. Mr Amjadi has taken reasonable action to prevent damage to his dwelling, raising his concerns firstly with Ms Smith and later with the respondents.

22. Considering the tree’s size and location, it is reasonable to expect that its owner might take some steps to ascertain its condition and any risk it might pose to property, especially the property of others, beneath its broad crown. Defects in a small tree might be apparent to the homeowner with no arboricultural expertise, but only a suitably qualified and experienced arborist is likely to have the skills to identify defects in a large tree such as this, with branches that have the potential to cause significant damage should they fall. The respondents have expressed unwillingness to take responsibility for engaging an arborist, although in my view their duty of care to their neighbours extends, in this situation, to such inspections or maintenance. If it is 15 years since the tree was last pruned, it is due for some routine pruning to remove hazardous branches.

Balance of s 12 matters

23. Trees are sometimes shedding organisms and this large eucalypt overhangs a dwelling. Reasonable maintenance of a large tree such as this would include periodic pruning and occasional inspections. On balance, I find that removal is not required to mitigate the tree’s level of risk, but routine pruning is justified here, removing dead branches and any overextended branches above the applicant’s property. This will also allow aerial inspection of branches throughout the tree’s crown. Orders will be made for the arborist undertaking those works to prepare a brief report for the respondents, a copy of which is to be provided to the applicant. Any recommendations in that report are not the subject of orders in these proceedings, but can guide the respondents’ future management of the tree. A timeframe of two months should allow works to be arranged and completed without affecting future owners should the respondents’ property be sold. COVID restrictions should not prevent these pruning works being undertaken, as they are for risk mitigation purposes ordered by the Court. Council consent will not be required for pruning works ordered below (s 6(3) of the Trees Act). Should the respondents have cause to carry out other works to the tree in future, Council’s consent might be required.

24. I accept that the tree has caused some minor damage to Mr Amjadi’s roof, but replacing the occasional roof tile might be considered reasonable maintenance in a leafy environment where all benefit from the presence of trees. Mr Amjadi’s quote for replacing his entire roof indicates he has contemplated more than simply replacing a few tiles. In light of this, I see no reason to order compensation for replacing several tiles, especially in the absence of a quote for that.

Orders

25. Based on the foregoing, the Court orders:

1. The application to remove the tree is refused.

2. The application for compensation is refused.

3. ‘Respondents’ in the following orders refers to the respondents listed in these proceedings or another Trustee of the Estate of Patricia Margaret Susannah Smith aka Patricia Margaret Susanne Smith, should such trustee be appointed.

4. Within 60 days of the date of these orders, the respondents are to engage and pay for a suitably qualified arborist (minimum AQF level 3), with all appropriate insurances, to carry out the following:

1. Prune the tree to:

1. reduce or remove overextended branches above the applicant’s property, reducing the northern side of the crown by up to 20% total crown mass;

2. remove deadwood greater than 30mm diameter from the tree’s crown;

3. inspect all major branches and branch unions;

4. remove any other branches from the tree’s crown identified as hazardous while carrying out these pruning works; and

5. take photographs of major branches and branch unions and any remaining defects.

2. Prepare a brief report describing the pruning undertaken and including any other findings and recommendations, along with relevant photographs.

5. Pruning works ordered in order (4)(a) must be done in accordance with AS 4373 Pruning of amenity trees and the 2016 Safe Work Australia Guide to managing risks of tree trimming and removal work.

6. The respondents are to give the applicant 2 days’ notice of the works.

7. The applicant is to allow all access necessary for the works to be completed during reasonable hours of the day.

8. Within 60 days of the date of these orders the respondents are to provide the applicant with a copy of the arborist’s report from order (4)(b).

……………………………….

D Galwey

Acting Commissioner of the Court

**********

Decision last updated: 26 October 2021