Brown v Alexander

[2023] NSWLEC 1810

Land and Environment Court

New South Wales

Medium Neutral Citation:

Brown v Alexander [2023] NSWLEC 1810

Hearing dates:

20 February 2024

Date of orders:

03 June 2024

Decision date:

03 June 2024

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

The Court orders that:

(1)   The respondent shall pay the applicant $700.00 by electronic funds transfer (EFT) as compensation for the damage insurance excess, within 14 days of receipt of a paid invoice from the applicant.

(2)   The respondent, at her expense, shall employ experienced Australian Qualification Framework (AQF) level 3 arborists, with all appropriate insurances (the arborists), to reduction prune all branches from the tree that are overhanging, and within 2 metres of overhanging, the applicant’s dwelling.

(3)   The respondent, at her expense, shall employ the arborists to prune all deadwood above 20 millimetres diameter at the branch collar from the area of the tree’s canopy overhanging the applicant’s land.

(4)   The works in Orders (2) and (3) shall be completed within 90 days of the date of these orders and during reasonable daytime working hours.

(5)   All pruning shall comply with AS4373:2007, Pruning of amenity trees, and the Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016.

(6)   The applicant shall provide all reasonable access to his property for undertaking the works upon receipt of at least 72 hours’ notice from the respondent by email, advising the date and approximate start time. A copy of the arborist’s insurance Certificates of Currency shall be attached to the email.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to dwelling roof – tree removal proposed – significant s 12 considerations – pruning ordered

Legislation Cited:

Environmental Planning and Assessment Act 1979

Trees (Disputes between Neighbours) Act 2006,

Pt 2 ss 6, 7, 8, 9 10, 12

Cases Cited:

Black v Johnson (No 2) [2007] NSWLEC 513

McPherson v Lake [2017] NSWLEC 1081

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

Yang v Scerri [2007] NSWLEC 592

Texts Cited:

Standards Australia, AS 4373:2007. Pruning of amenity trees, 2007

Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016

Category:

Principal judgment

Parties:

Graeme Brown (Applicant)
Vivienne Alexander (Respondent)

Representation:

G Brown (Self represented) (Applicant)
V Alexander (Self represented) (Respondent)

File Number(s):

2023/351738

Publication restriction:

Nil

Judgment

Background

1. COMMISSIONER: Ms Vivienne Alexander, the respondent, has a tall Eucalyptus pilularis (Blackbutt) (the tree), growing in the front yard of her property in Port Stephens. The tree is mature and long established, about 24 metres (m) tall, with a strong, straight trunk and a diameter at breast height (DBH) greater than 1 m. The tree previously had two trunks, but one was removed about four years ago after it was damaged by lightning strike.

2. The tree is located close to a side boundary shared with the applicant, Mr Graeme Brown, and its canopy overhung parts of the applicant’s driveway, front yard, and dwelling.

3. Mr Brown claimed that falling branches had damaged his dwelling’s roof tiles and gutters on four occasions, including the most recent about six months ago, which precipitated the application under the Trees (Disputes Between Neighbours) Act 2006 (the Act). Mr Brown said he had requested Ms Alexander remove “or at least trim” the tree after each damage incident over the previous 4-5 years and submitted that the respondent claimed to be unable to afford removal or pruning of the tree.

4. Mr Brown claimed to have paid for roof, ceiling, and gutter repairs, and a caravan window replacement, from previous branch damage incidents, but sought compensation from Ms Alexander for the excess arising from an insurance claim for the most recent branch damage.

5. Consequent to Ms Alexander’s refusal to undertake tree work or pay compensation, Mr Brown made an application, pursuant to s 7 of Pt 2 of the Act, seeking removal of the tree from the respondent’s adjacent property and compensation for the insurance excess.

The onsite hearing

6. Both Mr Brown and Ms Alexander were self-represented at the onsite hearing, which commenced with an inspection of the tree, which was located about 2 m from the common boundary and about 5 m from the respondent’s front boundary. The tree had a high, broad canopy but past pruning was evident over the applicant’s dwelling and over electricity wires along the street.

7. The common boundary extended from south-east at the street to north-west at the rear. The applicant’s driveway ran parallel and close to the boundary and terminated at a double garage incorporated into the south-western corner of the dwelling. The respondent’s dwelling was located south of the applicant’s dwelling with a deeper front setback such that it was not under the canopy of the tree.

8. The tree appeared well anchored in the ground and its trunk sounded solid. With such a tall, vast tree, my canopy inspection from ground level was limited, but larger live branch junctions appeared structurally sound throughout the canopy, and I saw no obvious residual tears from shedding of live branches. There was, however, a moderate level of deadwood and recent pruning had been limited to electricity wire clearance.

9. The applicant’s proposed orders:

“1. To have the tree cut down,

2. Compensation in the sum of $700, being the applicant’s insurance excess for roof repairs, estimated at over $4000.00.”

10. During oral submissions, Mr Brown indicated where dead branches from the tree had damaged roof tiles and gutters, and the caravan, which was located in a bay north-east of the driveway. He claimed falling branches from the tree presented a high risk of death or serious injury to people on the driveway or adjacent nature strip.

11. Ms Alexander, who had occupied her property for 13 years, contended that Port Stephens Council (Council) should not have allowed the applicant’s house, which was built around 2000, to be located so close to the existing tree and she criticised the extent of excavation permitted for installation of the applicant’s driveway and electricity.

12. The respondent valued the tree’s longevity, stature, and aesthetics and contended the tree was solid and not dangerous except for deadwood, and that the current extent of deadwood was not high. She acknowledged that deadwood, previously wedged in the tree above the applicant’s land, should have been removed but claimed that electricity crews last working on the tree had been unable to remove the branch or had elected not to do so.

13. Ms Alexander contended the risks to people were not high because dead branches usually fell during storms when people were indoors. Further, the respondent claimed that deadwood that caused the applicant’s damage may have blown onto the applicant’s land from three tall Blackbutt trees growing across the road on a neighbour’s front verge.

14. Ms Alexander conceded that the most recent damage had been caused by deadwood from the tree but reiterated being unable to afford work on the tree. She cited advise from her property insurer, that a landowner whose property is damaged by a neighbour’s tree “pays their own cost including excess”. On this basis, the respondent agreed to Mr Brown pruning the section of the tree over his property, at his expense.

15. The applicant claimed that Ms Alexander had previously agreed to compensate him for the $700.00 insurance excess but had subsequently withdrawn the offer. During submissions regarding this issue, the respondent became agitated and unexpectedly left the hearing. Notwithstanding that Ms Alexander chose to leave the hearing, I am satisfied she suffered no disadvantage as both parties had effectively already completed their submissions. I subsequently accepted no additional evidence from the applicant and reserved my decision.

Jurisdictional requirements

16. With respect to s 7, an owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land.

17. The applicant has satisfied the requirement under s 8(1)(a) of the Act: to serve notice of application and proposed orders to the respondent more than 21 days prior to the proceedings. In the case file, however, I found no evidence of the applicant serving the application documents to Council, as required at s 8(1)(b) of the Act. Section 8(3), provides the Court with powers to waive the requirement to give notice or vary the period of notice under this section if it thinks it appropriate to do so in the circumstances.

18. Considering the circumstances, where the dispute has been protracted and further damage may result from the tree, I thus waived the requirement to serve the application on Council, under s 8(3) of the Act.

19. The Court’s ability to make orders is limited, at s 10 of the 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.

20. Mr Brown’s claim that he asked the respondent to remove or trim the tree multiple times over the last four to five years was unchallenged by the respondent. Consequently, I am satisfied the applicant made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, such that s 10(1)(a) of the Act was engaged. Section 10(1)(b) was also engaged by satisfaction of s (8) of the Act.

21. Therefore, the principal jurisdictional tests in this matter are at s 10(2) of the Act, which states:

(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.

22. If the jurisdictional tests at s 10 of the Act are satisfied, the Court can make orders such as those at s 9 to remedy, restrain or prevent damage to property, or to prevent injury to a person, as a consequence of the tree.

Damage caused by the tree

23. Mr Brown claimed that fallen branches had caused dwelling roof damage on four occasions, that secondary ceiling damage resulted on one occasion, and that a caravan window had also been broken. Mr Brown indicated areas on the dwelling roof where tiles had been replaced after damage from falling branches.

24. Photographs in a Roof Report from Rizon, dated 13 October 2023 (Rizon report), produced in conjunction with assessment of the applicant’s insurance claim, showed a dead branch apparently about 50 mm in diameter lying on broken ridge capping and multiple broken tiles near the corner of the dwelling roof above the garage. Though two of the three Blackbutt trees growing across the street contained relatively high level of deadwood and leaned towards the road, I was not satisfied that branches from these trees were likely to reach and damage the applicant’s dwelling.

25. Conversely, edges of the tree’s canopy extended over the applicant’s dwelling and contained deadwood. Based on Mr Brown’s evidence, the information and extensive array of photographs in the Rizon report, and the respondent’s concession that the damaging branch/es from the last incident fell from the tree, I am satisfied of a causal link between the tree and the damage such that s 10(2)(a) is engaged.

26. Though deadwood in the tree was not generally large or extensive, considering that branches may fall 15-20 m and gain considerable velocity before impacting the dwelling or surrounding gardens and paved areas, I am also satisfied that further damage is likely in the near future. Thus, s 10(2)(a) of the Act was again engaged. In the decision of Yang v Scerri [2007] NSWLEC 592, the near future is defined, as a rule of thumb, to be a period of one year.

Likelihood of injury to persons

27. Based on the decision in McPherson v Lake [2017] NSWLEC 1081 [at 10], in considering injury, the Court must assess and determine the risk posed by a tree in the foreseeable future based on the characteristics of the tree/s, the history of any failures, any other relevant evidence, and the circumstances of the site apparent at the time of the hearing.

28. Though the human occupancy of the applicant’s dwelling is high, the dwelling roof provided protection for the applicant. I was not satisfied that deadwood on the tree apparent at the hearing was likely to pierce through the roof and ceiling and cause injury to persons. Though both Mr Brown and the Rizon report provided evidence of deadwood having damaged tiles and gutters, there was no claim or evidence of deadwood penetrating through the roof.

29. I am satisfied the human occupancy rate in the ‘target zone’ under and near the tree’s canopy is likely to be occasional during average weather conditions. I also accept the respondent’s submission that outdoor occupancy under or near the tree is likely to be rare to negligible during storms and high winds. Reliable research evidence shows that during high winds, when dead wood is more likely to fall from trees, the frequency of human occupancy ‘outdoors’ is usually much lower than average. Further, regardless of multiple damage incidents, the applicant has provided no evidence of past injuries or near misses that may substantiate his claims of high risk.

30. Engagement of s 10(2)(b) of the Act requires that injury to a person is likely to be caused by the tree in the foreseeable future, but I am not satisfied that such injury to a person is likely. Therefore s 10(2)(b) is not engaged. Nonetheless, as engagement of any of the four tests posed by s 10(2) satisfies the requirements of the Act, orders may be contemplated.

Discretionary matters – s 12

31. In making an order, the Court must consider relevant matters in s 12 of the Act, as follows:

32. The respondent’s Blackbutt tree is located at the front of the property close to the parties’ common side boundary, and the nature strip and adjacent to the applicant’s driveway (s 12(a)).

33. Contrary to Mr Brown’s answer at question 18 of the Tree Dispute Claim Details (Form H), in the absence of s 6 of the Act, removal or pruning of the tree would require consent from Council under the Environmental Planning and Assessment Act 1979. The Port Stephens Development Control Plan 2014 (DCP), at B1 Tree Management, ‘Council issued permit’, says:

“A tree permit is required for the removal or pruning over 10% of a tree or other vegetation where height exceeds 3m or diameter exceeds 300mm (measured 1.3m from the ground) and poses no risk to life or property.”

“Removal or pruning of a tree, not otherwise listed as requiring Council approval, can occur in instances where Council is satisfied that: there is a risk to human life or property not related to leaf/flower/fruit drop, or the tree(s) are dead or dying and it is not required as the habitat of native animals” (s 12(b)).

34. Pruning of live foliage from this long established, mature tree risks compromising its health and vigour by reducing photosynthetic capacity, which is the basis for production of carbohydrates that support all the tree’s essential functions. Pruning of live foliage should therefore be minimised and undertaken only to satisfy a required need (ss 12(b2)).

35. The tree provides shade to both properties, and, particularly in conjunction with the open forest canopy formed by Blackbutt trees in the immediate vicinity, it would provide protection from winds. Ms Alexander noted the tree’s contribution to her landscape and to the amenity of the land on which it is situated due to its considerable age and grandeur (ss 12(b3)).

36. In Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (Robson), Preston CJ provided commentary on environmental considerations under s 12 of the Act; at [203]:

“203 The matters concerning the values of the tree and its environmental contribution are notable additions to the matters recommended by the Law Reform Commission in its report. The Law Reform Commission report was relatively quiet about environmental factors, in contrast to the earlier discussion paper which had emphasised the environmental values of trees. The legislature, however, took a different view and required the Court to consider environmental factors. This was a point specifically made in the second reading speech:

“The provisions that require the Court to consider environmental factors prior to making an order are in recognition of the importance of urban trees as an environmental asset. Urban trees play a proven environmental role in every urban society. They provide energy savings through lower cooling costs, reduce stormwater run-off, help reduce salinity and provide aesthetic and social benefits associated with being in proximity to nature. The bill therefore recognises the environmental contribution of urban trees as a factor that the court must take into consideration in determining applications.””

37. As Blackbutt trees are the dominant emergent species endemic to this region, the tree’s flowers, fruit, trunks, and branches can be expected to provide food and shelter for local fauna. Blackbutt’s may live for centuries in ideal conditions and based on the arboricultural expertise I bring to the Court, my estimate of the tree’s age is around 100 years. Therefore, the tree is likely to make an important and increasing contribution to the local ecosystem and biodiversity (s 12(d)).

38. Considering its size, age, and prominence when viewed from the street, and its ecological significance, the tree provides intrinsic public amenity (s 12(f)).

39. Section 12(h)(i) of the Act considers anything, other than the tree, that has contributed, or is contributing, to any damage or likelihood of damage, including any act or omission by the applicant and the impact of any trees owned by the applicant. It is appropriate to consider who pays for the pruning through consideration of s 12(h)(i), which his Honour discusses in Robson; at [204]-[208]:

"204 The matters in s 12(h) and (i) require the Court to consider whether there are any contributing causes of the damage or the likelihood of damage to property or the likelihood of injury to any person, other than the tree. The phrase “anything, other than the tree, that has contributed, or is contributing…” is wide.

205 It evidently includes “any act or omission by the applicant” and “the impact of any trees owned by the applicant” because both of these are specified to be included in the wider phrase. Thus, in Horn & Anor v Latter [2007] NSWLEC 744 (23 October 2007) (Moore C, Thyer AC) at [17], found that the reason why a tree required removal was because the applicants had poisoned the tree’s roots, killing part of the tree and rendering it “likely in the near future to cause damage” to the applicants’ property. As a consequence of this fact, although the Court ordered removal of the tree, it required the cost of removal to be borne by the applicants rather than the tree’s owner.

206 The phrase also would include any act or omission by the owner of the land on which the tree is situated, which has contributed or is contributing to the damage or the likelihood of injury to any person.

207 The considerations that arise in the tort of nuisance concerning fault, the nature of the conduct and the state of knowledge of a person on whose land a tree which causes a nuisance is situated (see discussion above at paragraphs 44-90), would be relevant in ascertaining whether any act or omission of that person has contributed or is contributing to the damage or injury. Thus, it would be relevant to consider whether the person created the nuisance constituted by the tree having caused, causing, or being likely to cause damage, or whether the person adopted or continued that nuisance. Such conduct could be said to be “anything, other than the tree, that has contributed, or is contributing to any such damage”.

208 ... Although these matters have not been included as express matters in the Trees (Disputes Between Neighbours) Act 2006, they may fall within the ambit of “anything, other than the tree, that has contributed, or is contributing to” the damage or the likelihood of damage to property or the likelihood of injury to any person.”

40. Section 12(h)(i) also considers if ‘the tree was there first’. When a dwelling is installed under or near an established tree, ‘the tree was there first’ should be considered if the tree causes subsequent property damage. In Black v Johnson (No 2) [2007] NSWLEC 513 (Black), a Tree Disputes Principle was established for such situations; at [15]:

“15 … 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…””

Findings

41. Section 10(2)(a) of the Act was engaged by deadwood from the tree causing past damage and likely near future damage to the applicant’s dwelling roof. Adduced s 12 considerations inform the orders the Court may make.

42. As noted above at [36], at [203] of Robson, his Honour said that consideration of environmental factors “was a point specifically made in the second reading speech” (to Parliament):

“203 … The provisions that require the Court to consider environmental factors prior to making an order are in recognition of the importance of urban trees as an environmental asset. Urban trees play a proven environmental role in every urban society. They provide energy savings through lower cooling costs, reduce stormwater run-off, help reduce salinity and provide aesthetic and social benefits associated with being in proximity to nature. The bill therefore recognises the environmental contribution of urban trees as a factor that the court must take into consideration in determining applications.””

43. The tree before me was old, yet healthy and apparently structurally sound. Due to its location and vast proportions, it provided significant public amenity. It contributed to the local ecosystem and biodiversity as it was a remnant tree with habitat potential for localised fauna, it was part of localised vegetation having high environmental significance to the broader district and the tree had high ecological value because it was an indigenous species and an integral part of a natural ecosystem.

44. In this context, the Court endeavours to make orders which mitigate the applicant’s damage, whilst endeavouring to retain the tree, given it would be unreasonable to remove the tree and sacrifice all its benefits and contributions if damage may be mitigated by pruning.

45. Each damage incident was caused by dropping deadwood and the applicant made no report of live branch shedding. Therefore, orders shall be made for pruning of deadwood over the applicant’s land, live branches overhanging the dwelling roof, and live branches within a buffer zone up to 2 m from the dwelling roof. Though these works require relatively heavy pruning which will likely negatively impact the tree, the buffer zone is required to allow for wind impacting branches and thus to minimise future damage to the applicant’s dwelling.

46. All pruning shall comply with Australian Standard, AS4373:2007, Pruning of amenity trees (the AS) and the diameter of live branches selected for pruning should be as small as practicable. The initial live branch pruning will remove a significant amount of the overhanging canopy, thus reducing the size and proximity of future deadwood. Prudent selection of appropriate live branches and pruning cut locations in the pruning works, in accordance with guidelines for ‘Reduction pruning’ in Chapter 7 of the AS, should direct regrowth away from the applicant’s dwelling and the buffer zone.

47. In Robson, his Honour considered a scenario where a tree fell in a storm and damaged a neighbour’s dwelling. An arborist report noted root rot, but the tree was said to display no indication of its likelihood to fail. Nor had Mr Leischke, the tree owner, taken action or made omissions that may have impacted the tree’s failure.

48. Mrs Robson had suffered damage to her property through no fault of her own. Nonetheless, because Mr Leischke was not at fault for the tree’s failure and the consequential damage to Mrs Robson’s house, his Honour found, in Robson; at [228]: “In these circumstances, the justice of the situation is to leave the loss where it falls, namely on Mrs Robson. An order shifting that loss to Mr Leischke by requiring him to pay compensation to her would not be fit or just.”

49. In circumstances such as in Robson, a landowner whose property is damaged by a neighbour’s tree “pays their own cost including excess”, consistent with the advice attributed to Ms Alexander’s property insurer. The circumstances here, however, are distinctly dissimilar to Robson.

50. Mr Brown’s claim of four past roof damage incidents was undisputed by the respondent and I accept that Mr Brown advised Ms Alexander upon each occurrence. While the initial damage incident may have been a surprise to Ms Alexander, after the initial damage, in the absence of intervention with the tree, further damage was foreseeable.

51. At [207] of Robson, his Honour said:

“207 … Thus, it would be relevant to consider whether the person created the nuisance constituted by the tree having caused, causing, or being likely to cause damage, or whether the person adopted or continued that nuisance. Such conduct could be said to be “anything, other than the tree, that has contributed, or is contributing to any such damage”.”

52. Ms Alexander did not create the nuisance constituted by the tree having caused, causing, or being likely to cause damage, but by failing to intervene and mitigate further likely damage by the tree, Ms Alexander has “adopted or continued the nuisance” and contributed to the applicant’s roof damage.

Conclusions

53. It is conventional for respondents to pay for the execution of orders unless there is a sound reason to do so. Ms Alexander’s omission to mitigate foreseeable damage to the applicant’s property renders her liable to finance the orders made. The respondent shall also compensate the applicant for the insurance excess.

54. Notwithstanding that the tree was in situ long before the applicant’s dwelling, and the Tree Disputes Principle in Black may provide for cost apportionment in the execution of orders, considering that Mr Brown financed all previous damage repairs, additional impost here would be unreasonable.

55. Judicious pruning of the tree should provide canopy clearance from the dwelling in the medium term. Future pruning may be required by the respondent, but the orders provide viable damage mitigation, and retention of a ‘significant’ tree.

Orders

56. The Court orders that:

1. The respondent shall pay the applicant $700.00 by electronic funds transfer (EFT) as compensation for the damage insurance excess, within 14 days of receipt of a paid invoice from the applicant.

2. The respondent, at her expense, shall employ experienced Australian Qualification Framework (AQF) level 3 arborists, with all appropriate insurances (the arborists), to reduction prune all branches from the tree that are overhanging, and within 2 metres of overhanging, the applicant’s dwelling.

3. The respondent, at her expense, shall employ the arborists to prune all deadwood above 20 millimetres diameter at the branch collar from the area of the tree’s canopy overhanging the applicant’s land.

4. The works in Orders (2) and (3) shall be completed within 90 days of the date of these orders and during reasonable daytime working hours.

5. All pruning shall comply with AS4373:2007, Pruning of amenity trees, and the Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016.

6. The applicant shall provide all reasonable access to his property for undertaking the works upon receipt of at least 72 hours’ notice from the respondent by email, advising the date and approximate start time. A copy of the arborist’s insurance Certificates of Currency shall be attached to the email.

J Douglas

Acting Commissioner of the Court

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Decision last updated: 03 June 2024