Baker v Freeman; Christie v Freeman

[2021] NSWLEC 1091

Land and Environment Court

New South Wales

Medium Neutral Citation:

Baker v Freeman; Christie v Freeman [2021] NSWLEC 1091

Hearing dates:

29 October 2020

Date of orders:

24 February 2021

Decision date:

24 February 2021

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

Proceedings 2020/155573

See orders at [23]

Proceedings 2020/157553

See orders at [24]

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – risk of damage and injury – two applications concerning the one tree – overhanging tree – whether the tree is likely to cause damage or injury – works already permitted by Council – access to properties for works to be carried out

Legislation Cited:

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

Cases Cited:

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

Texts Cited:

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

AS 4373-2007 ‘Pruning of amenity trees’

Category:

Principal judgment

Parties:

Proceedings 2020/155573
Maria Baker (Applicant)
Gregory Freeman (First Respondent)
Margaret-Anne Freeman (Second Respondent)

Proceedings 2020/157553
Frances Christie (Applicant)
Gregory Freeman (First Respondent)
Margaret-Anne Freeman (Second Respondent)

Representation:

Proceedings 2020/155573
E Nolan (Agent) (Applicant)
G Freeman (Litigant in Person) (Respondents)

Proceedings 2020/157553
F Christie (Litigant in Person) (Applicant)
G Freeman (Litigant in Person) (Respondents)

File Number(s):

2020/155573 & 2020/157553

Publication restriction:

No

Judgment

Background to the application

1. A Sydney Blue Gum (Eucalyptus saligna) (‘the tree’) grows in the garden of the Lane Cove property belonging to Gregory and Margaret-Anne Freeman (‘the respondents’). The tree extends over the property’s rear boundary, where it overhangs two neighbouring properties. The owners of those properties have each 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 tree to be pruned.

2. Both applicants have obtained consent to prune the tree from Lane Cove Council (‘Council’). Maria Baker (‘the applicant’ in proceedings 2020/155573) received consent in April 2020 to reduce overhanging branches of the tree, to remove one low branch ~120 mm in diameter, and to remove deadwood. Council’s notice of consent, titled “Tree Preservation Order Work Authority” advised the applicant that the consent does not authorise the applicant or their contractor to enter the tree owner’s property or to undertake the work (my emphasis), permission for which must be granted by the tree’s owner.

3. Frances Christie (‘the applicant’ in proceedings 2020/157553) received Council’s consent in December 2017 to reduce the tree’s overhanging branches and to remove deadwood. Ms Christie’s dwelling is one of a strata group – her dwelling and open space are beneath the tree’s crown. This notice of consent was also titled a “Work Authority”, but unlike Ms Baker’s later consent notice it advised that “…pruning works must be undertaken from within your own property unless you have your neighbour’s consent to enter their property.”

4. Council’s pruning consent of April 2020 includes the note: “The visual tree inspection undertaken by council Arborists is NOT a risk assessment. If you require a risk assessment, the applicant is responsible for engaging the services of an arborist with a minimum qualification of Level 5 (under the Australian Qualification framework) to provide any additional information you may require.”

5. Margaret-Anne Freeman and Gregory Freeman (‘the respondents’ in both proceedings) have no issue with the tree being pruned, but expect that any pruning works should be done from within the applicants’ properties, and that the applicants should pay for the works.

Framework for this decision

6. Before making orders under Pt 2 of the Trees Act, the Court must be satisfied that:

• The applicant has made reasonable effort to reach agreement with the tree owner (s 10(1)(a));

• The tree 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)).

The hearing

7. The parties agreed to the matter proceeding via audio-visual means due to COVID-19 restrictions. Ms Baker was represented by her daughter Emily Nolan, Ms Christie was self-represented, and Mr Freeman represented the respondents.

The applicants made reasonable effort

8. Ms Christie applied to Lane Cove Council for consent to prune the tree, and was granted consent in December 2017. She then discussed the issue with the Freemans. Ms Christie provided a copy of an email she received from Mr Freeman in January 2018, referring to a discussion Ms Christie had with Ms Freeman some days earlier. Aware that Ms Christie had received consent to prune the tree, he wrote that the Freemans would provide no access to their property for any contractor to carry out the works and “any breach of our boundaries…will result in notification to the NSW Police for trespass.” Ms Christie, then Chair of her strata group, wrote back to Mr Freeman on behalf of the strata group the following day, noting the tone of his response and outlining her concerns regarding the tree.

9. Ms Christies’ efforts prior to applying to the Court were reasonable. Considering the tone of Mr Freeman’s response, she was discouraged from any further attempts at personal negotiation.

10. Ms Baker applied for and received Council’s consent to prune the tree in early 2020. Ms Nolan, Ms Baker’s daughter, submitted that a letter was delivered to the Freemans on 9 May 2020 in an attempt to resolve the matter. Mr Freeman stated that he received no such letter, and still has no copy of it. According to the Freemans, they first became aware of Ms Baker’s concerns when they received a copy of her application to the Court. On this information alone, Ms Baker’s efforts to resolve the situation might not be considered reasonable. However, Ms Baker already had a copy of Mr Freeman’s earlier response to Ms Christie, and so was aware of his likely position in relation to her concerns. Preston CJ, in Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 at [191]-[196], discussed the Trees Act’s requirement that the applicant make reasonable effort, finding that the language of the Trees Act allows applicants to make reasonable effort after making their application to the Court. Ms Baker received an unsigned letter, apparently from the Freemans, responding to her application. The content and tone of that letter discouraged any hope of personal negotiation. On the basis of the above, I am satisfied that Ms Baker’s efforts were reasonable.

The tree

11. None of the parties has provided any arboricultural report for these proceedings, although photographs and video footage of the tree were filed with the Court. The Sydney Blue Gum grows on the Freemans’ property, close to their rear boundary. Due to the presence of other nearby trees and dense foliage, the tree has grown to the east, so that its lower stem crosses the boundary above the fence, and all of its major branches and foliage are above the applicants’ properties. It appears to have received little care or attention during its lifespan. Its long branches extend above a shed and open space on Ms Baker’s property, and above Ms Christie’s open space and dwelling. Foliage appears relatively healthy. Several branch stubs remain, possibly from historic branch failures. A broken branch hangs in a lower fork. Mr Freeman submitted that this branch has fallen from another gum tree, but provided no evidence of this. Some deadwood is also present in the tree’s crown.

Damage or injury

12. Ms Christie submitted that branches have fallen onto other dwellings in the past, causing damage that was repaired through insurance. However no evidence of this was provided to the Court.

13. Long horizontal branches in the lower crown are overextended, with significant end-weight above useable open spaces and Ms Christie’s dwelling. Failure of at least one of these is probable in the near future, and would be likely to cause some damage. Injury may also result.

14. The broken branch that hangs within the tree’s crown is most likely from the tree itself. Mr Freeman submitted that it would fall onto the Freemans’ property, but photographs and video footage show that it hangs above Ms Christie’s private open space, and that is where it is most likely to fall.

15. Based on the above, I am satisfied for each application that the tree is likely to cause damage to the applicant’s property in the near future, or to cause injury to a person.

16. The risk of damage or injury resulting from branch failure could be readily addressed by pruning to reduce the length and weight of these branches. Despite the lack of any formal arboricultural report, and the lack of an onsite view, I have the benefit of two “Work Authorities” issued by Council after their own tree officer inspected the tree in 2017 and 2020, most probably from within the applicants’ properties. Council’s tree officer was apparently satisfied that some pruning was required to minimise the risk of failure, and that the approved pruning was sufficient to mitigate that risk. The 2020 consent authorised the following pruning:

“• 3^rd order branches to reduce branch end weight over neighbouring properties, final cuts <80 mm diameter at branch collars.

• 1x low second order 120mm diameter branch over neighbouring property of [Ms Christie’s property].

• Tidy failed branch stubs and prune out deadwood. 10% live foliage to be removed.”

Pruning will be ordered

17. Each of the applicants has applied for pruning orders that correspond with their respective “Work Authorities”. The pruning works described in Council’s 2020 consent appear to adequately address the risk of branch failure, so similar orders will be made here. To my mind, the necessary branch reduction will result in greater than 10% loss of live foliage. Pruning will also ensure clearance between branches and Ms Christie’s dwelling. Orders from the Court obviate the need for any further Council consent for the works.

Orders for access

18. All branches to be pruned are above the applicants’ properties. Although this is some distance from the applicants’ street frontages, the rear of the respondents’ battle-axe property is equally distant from their own street frontage, and they share a driveway with others. To my mind, Mr Freeman overstated his concerns regarding access through their property. Nevertheless, based on my own experience in these matters, it appears more practical that the works are done from within the applicants’ properties. Submissions included the potential impacts of heavy trucks and cranes in driveways, but the branches to be removed are relatively small, and access to the tree’s crown will most likely be via professional tree-climbing techniques from within one of the applicants’ properties. The relatively small branches could be cut and carried to the front of the properties, either the respondents’ or applicants’, for chipping. Without restricting a contractor’s preferred work methods, I will make orders for all parties to allow access to contractors to complete the works.

The respondents will pay for the works

19. Both Ms Baker and Ms Christie applied to Council to carry out the pruning works. I understand that they had offered to pay for the works. They were concerned for their safety and for their property. Council’s 2020 consent allowed the works to proceed only with the tree owners’ permission. While the Freemans say they have not denied permission, they have not explicitly granted it either. Furthermore, their stated intention to report to the police for trespass, anyone crossing their boundary during the works, possibly deterred the applicants from proceeding. The applicants have since incurred the cost of making their applications to the Court. The tree belongs to the Freemans. As is usual when orders are required to prevent damage or injury, the tree owners will pay for the works.

20. While contractors engaged by the Freemans might gain some access via the applicants’ properties, the Freemans are responsible for the works and therefore responsible for any damage caused by contractors. The orders will require that any contractor be appropriately insured. The applicants would be wise to take photographs of the condition of their properties prior to works, in case any damage results.

Further inspection is required

21. The applicants referred to other neighbourhood trees that failed completely in recent years. The circumstances regarding those tree failures are unknown, and they do not inform this decision. Nevertheless, it became apparent from the evidence and submissions before me that the Freemans’ tree leans towards the applicants’ properties, with most of its mass above their properties, and it has not been professionally assessed for some time. Beyond the risk arising from falling branches, the possibility of root or stem failure should be considered. The condition of the tree’s lower stem and root buttress may not have been assessed by Council’s tree officer, and the Court has not had the benefit of an onsite view. Therefore orders will include an assessment and report by a qualified arborist to be engaged by the respondents, with a copy of the report to be provided to the applicants. Should they find that any recommendations in the report are not addressed by the respondents, the applicants may apply to relist the matter for the Court’s further consideration.

Other matters

22. I have considered all matters at s 12 of the Trees Act. Anything relevant has been discussed above.

Orders

Proceedings 2020/155573

23. As a result of the foregoing, the Court orders that:

1. The application is upheld.

2. Within 30 days of the date of these orders, the respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF Level 3) with all appropriate insurances to prune the Sydney Blue Gum (‘the tree’) to:

1. reduce branches extending eastward over neighbouring properties, pruning to suitable lateral branches, removing 20–30% of live crown mass;

2. provide 2 metres of direct clearance between all parts of the tree and any dwelling;

3. remove deadwood greater than 50 mm in diameter; and

4. remove any other branches identified during these works as being likely to fail in the near future.

These works must be carried out in accordance with AS 4373-2007 Pruning of amenity trees and the 2016 Safe Work Australia Guide to managing risks of tree trimming and removal work.

3. The respondents are to give the applicant at least two days’ notice of the works in (2).

4. The applicant is to provide all reasonable access required for completing the tree pruning works in (2) during reasonable hours of the day.

5. Within 30 days of the date of these orders the respondents are to engage a suitably qualified and experienced arboricultural consultant (minimum AQF Level 5) to carry out a visual assessment of the tree, including its lower stem and root buttress, and to prepare a written report outlining their findings and opinions and making any recommendations to reasonably manage identified risks.

6. The respondents are to provide the applicant with a copy of the report from Order (5) within 7 days of receiving the report.

7. Following receipt of the report, the applicant is granted liberty to relist to address any outstanding matters.

8. The exhibits are returned apart from Exhibits A, B and E.

Proceedings 2020/157553

24. The Court orders that:

1. The application is upheld.

2. Within 30 days of the date of these orders, the respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF Level 3) with all appropriate insurances to prune the Sydney Blue Gum (‘the tree’) to:

1. reduce branches extending eastward over neighbouring properties, pruning to suitable lateral branches, removing 20–30% of live crown mass;

2. provide 2 metres of direct clearance between all parts of the tree and any dwelling;

3. remove deadwood greater than 50 mm in diameter; and

4. remove any other branches identified during these works as being likely to fail in the near future.

These works must be carried out in accordance with AS 4373-2007 Pruning of amenity trees and the 2016 Safe Work Australia Guide to managing risks of tree trimming and removal work.

3. The respondents are to give the applicant at least two days’ notice of the works in (2).

4. The applicant is to provide all reasonable access required for completing the tree pruning works in (2) during reasonable hours of the day.

5. Within 30 days of the date of these orders the respondents are to engage a suitably qualified and experienced arboricultural consultant (minimum AQF Level 5) to carry out a visual assessment of the tree, including its lower stem and root buttress, and to prepare a written report outlining their findings and opinions and making any recommendations to reasonably manage identified risks.

6. The respondents are to provide the applicant with a copy of the report from Order (5) within 7 days of receiving the report.

7. Following receipt of the report, the applicant is granted liberty to relist to address any outstanding matters.

8. The exhibits are returned apart from Exhibits A, B and E.

……………………………….

D Galwey

Acting Commissioner of the Court

**********

Decision last updated: 24 February 2021