Burnham v Ross

[2021] NSWLEC 1339

Land and Environment Court

New South Wales

Medium Neutral Citation:

Burnham v Ross [2021] NSWLEC 1339

Hearing dates:

2 June 2021

Date of orders:

2 June 2021

Decision date:

02 June 2021

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1) The application is granted to the extent of the orders below.

(2) Within 90 days of the date of these orders, the respondent is to engage and pay for a suitably qualified arborist (minimum AQF level 3), with all appropriate insurances, to remove the tree to the height of the top of the adjacent fence (or lower if the respondent wishes) and to treat the remaining stump to prevent regrowth.

(3) The works in Order (2) are to be done in accordance with the 2016 Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’.

(4) The respondent is to give the applicant 7 days’ notice of the works.

(5) The applicant is to allow any access necessary for the works to be completed.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – tree has caused damage – tree is likely to cause further damage – no suitable alternative to tree removal – orders for tree removal

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 6(3), 7, 9, 10, 12

Texts Cited:

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

Category:

Principal judgment

Parties:

Christine Burnham (Applicant)
Matthew Ross (Respondent)

Representation:

C Burnham (Litigant in Person) (Applicant)
M Ross (Litigant in Person) (Respondent)

File Number(s):

2021/46817

Publication restriction:

No

Judgment

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

Background to the application

1. A mature Angophora costata (Smooth-barked Apple) (‘the tree’) grows on the Lake Haven property belonging to Matthew Ross (‘the respondent’). This healthy tree is more than 20 metres tall, with a stem diameter of approximately 60 cm at chest height. It grows between Mr Ross’ shed and the boundary fence he shares with Christine Burnham (‘the applicant’). Its lower stem grows against the Colourbond fence; its buttress roots grow beneath the fence, pushing it upwards.

2. Pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’), Ms Burnham has applied to the Court seeking orders for the removal of the tree and all of its roots.

Framework for this decision

3. Before making orders in Pt 2 applications under the Trees Act, the Court must be satisfied that the applicant has made reasonable effort to reach agreement with the tree’s owners (s 10(1)(a) of the Trees Act). The Court must also be satisfied, at s 10(2), 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 a person.

Reasonable effort to reach agreement

4. Ms Burnham has discussed the tree with Mr Ross over several years. She arranged a quote and says that she had offered to pay for the tree’s removal. I am satisfied she has made reasonable effort.

The tree has caused damage

5. On Ms Burnham’s property a large root extends from the base of the tree at the bottom of the fence towards a timber deck that is approximately one metre from the fence. The deck is lifted significantly above the root. In the absence of any other likely cause, I find that the tree has caused damage to Ms Burnham’s deck. As a result, the Court can make orders to remedy, restrain or prevent damage.

Tree removal is required

6. Further damage is likely, and it would be reasonable to prevent this. The tree’s roots cannot be cut this close to the tree, as doing so might destabilise the tree, leaving it prone to windthrow failure. It might be possible to rebuild the deck with some clearance to tree roots, but the tree is already pushing against the boundary fence, which it is likely to damage in the near future. To prevent further damage, I see no alternative to removing the tree.

7. Ms Burnham was also concerned about damage from falling branches. Following my observations of the tree, I concluded that pruning would sufficiently minimise that risk. However, following the finding in the previous paragraph, I need not consider that element of the application any further.

8. Ms Burnham has acted reasonably: her actions or omissions have not contributed to the damage in any way. She has withdrawn her offer to contribute to the tree’s removal. I see no reason to order any contribution from Ms Burnham to the cost of removing the tree.

The respondent is not required to remove tree roots

9. Ms Burnham does not seek compensation, but her application sought orders for removal of all the tree’s roots. If the tree stump is treated to prevent regrowth, roots will no longer grow. Further damage is unlikely. Should she repair her deck, as she intends to do, any roots obstructing those works can be removed by the contractor. It is not unreasonable that branches and roots grow across boundaries. Mr Ross did not behave negligently in allowing that to happen. He will not be required to remove roots from Ms Burnham’s property.

Reasonable timeframe for works

10. Mr Ross received advice that tree removal would be extremely expensive, perhaps requiring a crane. It seems to me that the estimate he received was excessive and the need for a crane is questionable. Apart from the expense, Mr Ross was also concerned that his property, in particular his shed beneath the tree, will be damaged during the works. In my experience, trees such as this can be dismantled professionally by a climbing arborist without damaging surrounding property.

11. I see no need to order removal of the tree’s lower stem, nor, as already covered, its roots. If the stem is cut to the height of the adjacent boundary fence, and immediately poisoned or otherwise treated to prevent regrowth, the tree’s stem and roots would not grow further, so future damage would be prevented.

12. Due to the likely financial burden of the works, Mr Ross will be allowed 90 days to carry out the orders.

Orders

13. As a result of the above, the Court orders:

1. The application is granted to the extent of the orders below.

2. Within 90 days of the date of these orders, the respondent is to engage and pay for a suitably qualified arborist (minimum AQF level 3), with all appropriate insurances, to remove the tree to the height of the top of the adjacent fence (or lower if the respondent wishes) and to treat the remaining stump to prevent regrowth.

3. The works in Order (2) are to be done in accordance with the 2016 Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’.

4. The respondent is to give the applicant 7 days’ notice of the works.

5. The applicant is to allow any access necessary for the works to be completed.

……………………………….

D Galwey

Acting Commissioner of the Court

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Decision last updated: 10 June 2021