Beard v Cash

[2019] NSWLEC 1543

Land and Environment Court

New South Wales

Medium Neutral Citation:	Beard v Cash [2019] NSWLEC 1543
Hearing dates:	1 November 2019
Date of orders:	01 November 2019
Decision date:	01 November 2019
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	See orders at [26] below
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – damage – risk of damage or injury – orders for pruning
Legislation Cited:	Trees (Disputes Between Neighbours Act) 2006 (NSW)
Cases Cited:	Hepworth v Walker [2014] NSWLEC 1248 Huggett v Burrowes [2015] NSWLEC 1057 Yang v Scerri [2007] NSWLEC 592
Texts Cited:	AS4373:2007 ‘Pruning of amenity trees’ Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’ Sutherland Shire Development Control Plan 2015
Category:	Principal judgment
Parties:	Gregory Beard (First Applicant) Geraldine Beard (Second Applicant) Darren Cash (First Respondent) Brigitte Cash (Second Respondent)
Representation:	G Beard (Litigant in person) (First Applicant) G Beard (Litigant in person) (Second Applicant) D Cash (Litigant in person) (First Respondent) B Cash (Litigant in person) (Second Respondent)
File Number(s):	2019/263558
Publication restriction:	No

Judgment

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

The application

1. A tall gum tree (‘the tree’) grows on the Gymea Bay property of Darren and Brigitte Cash (‘the respondents’) between their dwelling and the neighbouring dwelling belonging to Gregory and Geraldine Beard (‘the applicants’). The Beards have applied to the Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’) seeking orders for the tree to be removed.

Background

2. The Beards purchased their property in 2002. The neighbouring tree near their dwelling was already well established. In 2009, the SES was called out when a branch fell from the tree onto the Beards’ roof, damaging some tiles. Soon after, the Beards paid for subsequent pruning works to remove several more limbs, with the tree owner’s permission.

3. The Cashes purchased the neighbouring property where the tree is situated in 2012. Soon after, these neighbours had discussions regarding the tree and what needed to be done. The parties disagree on the outcome of those discussions. Whatever the outcome, no works were undertaken at the time.

4. The Beards say deadwood falls from the tree and occasionally damages their roof tiles, although the frequency of this seems to have increased recently, with two incidents in June of this year and another in October. When a dead branch fell in October, it broke a service wire bracket at the front of the Beards’ dwelling.

Framework of this decision

5. The Court must be satisfied at s 10(1)(a) of the Trees Act that the applicants have made reasonable effort to reach agreement. The Beards have clearly tried to resolve the issue with their neighbours, who concur that they have tried to negotiate, but no satisfactory outcome was reached. I am satisfied that reasonable effort has been made.

6. At s 10(2) of the Trees Act, the Court must be satisfied that 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. Consistent with the principle established in Yang v Scerri [2007] NSWLEC 592, for the purpose of making this decision, I consider the ‘near future’ to be a period of 12 months.

7. Before making any orders, I must consider the matters set out at s 12.

Submissions and findings

Species of the tree

8. The applicants submitted that the tree is Eucalyptus grandis (Flooded Gum). The respondents thought otherwise. I inspected leaves, fruit and buds from the tree and noted that their traits are consistent with E. grandis, so I assume that specific epithet for this judgment. The Beards submitted that E. grandis is not locally indigenous. I accept it is not part of the local vegetation community here.

Limb failure

9. The Beards submitted that E. grandis is prone to limb failures, relying on a document from the Western Australian Department of Education. They said the three limb failures this year show further failures are likely in the next 12 months, satisfying the interpretation of ‘the near future’ in Yang v Scerri [2007] NSWLEC 592. They pointed out dead branches and long branches above their dwelling, as well as one branch with a swelling near its base.

10. The Beards submitted that falling branches have damaged their roof tiles, clothesline, pool cover and service wire.

11. The Beards submitted that the Court’s decision in Huggett v Burrowes [2015] NSWLEC 1057 is relevant here. In that decision, Fakes C found at [9] that “…green branches of a substantial size fell from the upper portions of the canopy of the tree…”, which was a different species to the one in this matter. At [13], the Commissioner was “…satisfied that three failures indicates a propensity for branch shedding in this particular individual specimen…” and at [15] stated: “Had the tree only shed one branch it is unlikely that any intervention would be ordered however given the three failures it is prudent to order removal of the tree.” There is no evidence that the Cashes’ Flooded Gum has a history of shedding large living limbs. If the 2009 damage was caused by a live limb, that is the only record of such a limb failure. Other damage has apparently been caused by falling deadwood.

12. Other trees referred to by the Beards, including the tree that shed a branch in 2014 at Pitt Town Public School, might demonstrate the tragic consequences that are possible when trees fail, but do not demonstrate the likelihood of limbs falling from the Cashes’ tree, nor the likely consequences in this situation.

13. The Cashes do not dispute that fallen limbs have caused damage, but submitted that there is no evidence that any large limbs of this tree are likely to fail in the near future. They submitted that broken tiles are easy to replace, so the potential damage is relatively minor.

14. The document from Western Australia, filed by the Beards, does not demonstrate that this tree is likely to cause damage or injury. I observed deadwood and overextended branches in the crown. I accept that some of these are likely to fail in the near future and cause damage to the Beards’ dwelling. The apparent increasing frequency of falling deadwood is not surprising – the tree was pruned ten years ago but has not been pruned since. Deadwood forms naturally over time and is shed if not removed.

15. I am satisfied that the tree has caused damage to the Beards’ property, and is likely to do so in the next 12 months. Dead and overextended branches above their roof are likely to cause damage but unlikely to cause injury. Deadwood above their clothesline is likely to damage the clothesline, as the Beards contend has already occurred, and could possibly cause injury.

Bushfire

16. The Beards submitted that bushfire is a risk in the area. Mr Beard said the Court had previously found that “trees don’t cause bushfire” but that I should consider the issue in this decision. However, it was not whether trees cause fire that is the critical consideration here. Fires might be started by lightning, sparks or matches. Trees clearly can assist a fire to spread. But if fire damages a dwelling, that is not damage caused by a tree, which is the jurisdictional test at s 10(2) of the Trees Act. Of course, a limb might be more likely to fall once it is burning or burned, and in so doing might cause damage, but the Beards have presented no evidence that demonstrates such an event is likely here within the next 12 months.

Soil depth

17. The Beards submitted that the soil depth here is only 1.5 metres, with a rock shelf below, so tree root failure is likely. Many trees grow in shallower soils and do not fail. I am not satisfied that this tree is likely to fail due to the soil depth.

18. Mr Beard referred the Court to Fakes C’s findings in Hepworth v Walker [2014] NSWLEC 1248 (‘Hepworth’), where orders were made to remove three trees, all E. grandis. Mr Beard argues that similar orders are appropriate here because the tree is the same species. However all trees are different, growing in their own particular situation, and each dispute that comes before the Court must be decided on its own merits. In Hepworth, three experts (a geotechnical engineer and two arborists) gave evidence regarding local soil conditions and the impacts of recent excavation works on the roots of those trees. The judgment does not suggest that the species of eucalypt was a critical factor in the Commissioner’s decision. There is no geotechnical evidence before me in this matter, and no evidence nor submissions that roots have been disturbed by recent excavation works.

Orders can be made

19. Because I am satisfied that the tree has caused damage, and is likely to do so in the near future, I can make orders, so I turn to s 12 to consider relevant issues.

Consideration of matters at s 12

20. The tree is close to the boundary, and overhangs the Beards’ property, including their dwelling. It grew here before the Beards and the Cashes purchased their properties.

21. According to the Beards, the tree would not require a permit for removal because it is less than three metres from a dwelling, an exemption under the Sutherland Shire Development Control Plan 2015. I have not confirmed this.

22. The Beards argue that pruning the tree to the boundary line, “as is their right”, would render the tree unviable. Furthermore, pruning the other side of the tree to remove limbs above the Cashes’ service wire would leave almost no branches on the tree. Mr Beard firstly asserted that such pruning was a requirement of electricity supply legislation, but the document on which he relied did not demonstrate this. (A tree on the Beards’ property has branches above their own service wire.) He further stated that the responsible authority for electricity supply could enter the property to remove those branches if they thought they were hazardous, but this is hypothetical and there is no evidence that such action would be taken. I see no need to remove all branches above the Beards’ dwelling.

23. The Beards gave other examples of trees being removed in the area despite this being a ‘Greenweb’ area. He argued that the Cashes removed other trees on their land despite their claimed support for the Greenweb ideals. Details regarding the local council’s removal of a nearby public tree despite it being in a Greenweb area, to which the Beards referred, are unknown, so I cannot consider that in making my decision.

24. The tree provides value to both properties and to the broader environment. It contributes to amenity; it provides habitat, shade and cooling.

Conclusions

25. In summary, I find that I can make orders for the tree, but tree removal would diminish local amenity and environment values and would be disproportionate to the risk level. Pruning can minimise the risk of limb failure onto the Beards’ property. The Cashes own the tree; the Beards’ actions have not caused the risk; so the Cashes will pay for the works.

Orders

26. As a result of the foregoing, the Court orders:

1. Within 60 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 Flooded Gum near the northern corner of their dwelling to:

1. Remove deadwood greater than 20 mm diameter;

2. Reduce overextended branches in the crown above the applicants’ property by pruning back to suitable lateral branches, removing no more than 20% total crown mass.

3. Remove the branch with a swelling near its base, above the applicants’ property, pruning back to its branch collar (see photo below).

4. Remove the lowest branch on the north side of the stem, growing toward the street and partly above the applicants’ property, pruning back to its branch collar (see photo below).

2. All pruning works ordered above must be carried out in accordance with AS4373:2007 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 applicants 7 days’ notice of all works ordered above.

4. The applicants are to allow all access required to complete the works ordered above during reasonable hours of the day.

……………………………….

D Galwey

Acting Commissioner of the Court

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Decision last updated: 06 November 2019