Catley v Hajarat

[2015] NSWLEC 1306

Land and Environment Court

New South Wales

Medium Neutral Citation:	Catley & anor v Hajarat & anor [2015] NSWLEC 1306
Hearing dates:	29 July 2015
Date of orders:	05 August 2015
Decision date:	05 August 2015
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application upheld in part see [37]
Catchwords:	TREES [NEIGHBOURS] Potential damage to property and or injury to persons
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Uniform Civil Procedure Rules 2005
Cases Cited:	Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	Paul and Anita Catley (Applicants) Lisa and Mohammad Hajarat (Respondents)
Representation:	Applicants: P & A Catley (Litigants in person) Respondents: L & M Hajarat (Litigants in person)
File Number(s):	20440 of 2015

Judgment

1. COMMISSIONER:   In mid-April 2015 the Central Coast and other parts of the NSW coast were subject to strong winds and heavy rain associated with an ‘east coast low’. During this storm event, two of the five trees at the rear of the respondents’ property failed. One tree fell to the ground and the other tipped over but was supported by adjoining trees.

2. The applicants, who own the adjoining property at the rear (west) of the respondents’ land, have applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the removal of the remaining three trees on the basis that they may fall onto their property and cause serious damage and or injury.

3. In applications under Part 2, the key jurisdictional test is found in s 10(2) of the Act. This 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.

4. These tests must be applied to all trees the subject of an application. The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. At [62] Craig J states in part “something more than a theoretical possibility is required in order to engage the power under [the Trees] Act…”.

5. In a guidance decision published in Yang v Scerri [2007] NSWLEC 592, as a rule of thumb, the ‘near future’ is deemed to be a period of 12 months from the date of the determination. In regards to injury, the Court considers the risk posed by a tree in the foreseeable future based on the evidence produced by the parties, the characteristics of the tree/s, any history of previous failures, and the circumstances of the site apparent at the time of the hearing.

6. The trees in question are three mature Eucalyptus paniculata (Grey Ironbark). Tree A is the largest specimen and is located on the respondents’ rear northern boundary close to the dividing fence with the adjoining property to the north. Tree B is closest to the applicants’ property; Tree C is located furthest from the applicants’ property.

7. The hearing commenced on the respondents’ property (the site) and then proceeded to the applicants’ property. The trees were inspected from both properties. With the benefit of seeing the distance between tree C and their property, the applicants withdrew their claim for the removal of tree C. A stormwater pit on the applicants’ property was also inspected. While both parties engaged arborists to prepare reports, the arborists did not attend the hearing.

The evidence

8. In outlining the evidence put forward by the parties, a time line and description of events is useful.

9. In Exhibit 1, the respondents state that the State Emergency Services (SES) attended during the night and in the rain [this is presumably the night of the storm] and stated that the tipped tree needed to be removed but the SES could not do it. The SES officer suggested that the respondents get someone else to have a look at it. The second respondent stated that he visited the applicants on the night of the storm and told them about the tipped tree. Two nights later, another SES officer attended, after the fallen tree and the tipped tree had been removed [by contractors engaged by the respondents; one tree being the subject of an insurance claim]. The respondents state that the officer looked at the remaining trees and said that they looked like they had strong roots and that if the respondents wanted to remove them they would need to speak to the local council.

10. A somewhat difficult to interpret SES job sheet included in the applicants’ supplementary evidence (Exhibit B) indicates that on 21 April 2015, the SES took a phone call from the respondents. On 30 April the SES attended the site. The brief note under ‘Action Taken’ states: “Spoke to resident and recommended that he get trees removed by contractor. There is no further action from ses, assed down [sic] trees and they have been removed previously by contractor.” The SES attended again on 1 May 2015. The ‘Action Taken’ states: “Team has inspected job and it will require an arborist as it is beyond the capabilities of the team.” On 2 May 2015, two SES officers inspected the site and note: “Checked 2 x trees approx. 25m x 300mm. No obvious damage or lifting. Resident agrees to manage himself. NFA by SES.” The Finalisation Notes state: “Trees considered safe. Resident arranging removal at a later date. NFA for SES”. Finalisation date and time: 02/05/2015 21:14.

11. The notes on the messages received by the SES appear to indicate that the respondents were concerned about one of the three remaining trees as it appeared to have exposed roots and it may fall onto the back of the neighbours’ house. The notes are very brief and do not indicate which of the three trees the respondents were concerned about.

12. The applicants in their claim form (Exhibit A) state that the respondents advised them that the SES had attended and had said that all the trees were unsafe. On 6th May the applicants approached the respondents and asked them what they were doing in regards to removing the trees. On Thursday 7th May, they called an arborist to gain expert opinion.

13. The applicants’ case rests principally on the opinion of Mr Mark Bury, a local consulting arborist, and subsequent research carried out by the applicants. Given this reliance, the body of Mr Bury’s report dated 6 May 2015 is quoted in full.

Tree Statement on three (3) Eucalyptus paniculata (Grey Ironbark) located at the rear of property in [respondents’ address] Kincumber NSW.

I inspected three (3) Eucalyptus paniculata (Grey Ironbark) trees located at the rear of the property in [respondents’ address] Kincumber and observed three badly storm damaged trees.

The trees require removal and they have had both their branch structures and root structures badly compromised in the recent large storm event in April 2015. I am not confident that the soil structure of the erina soils on the site are not capable of supporting the weight of the trees in future storms as it appears the root plates of these trees have shifted in recent weather event.

Erina soils which the trees are located upon have a very low wet strength and given recent works in the root zones of the trees I cannot support the preservation of the trees.

The trees would have an unacceptable (red) QTRA risk rating and a high consequence of failure using the TRAG risk rating. The dwellings in the immediate vicinity of the trees are all targets of these trees.

The trees are dangerous and should be removed immediately.

14. The Bury report includes three photographs and captions, a very brief curriculum vitae and an unidentified/un-referenced list of tree topics.

15. The Tree Dispute Application was filed on 21 May 2015.

16. On 5 June 2015, the respondents engaged Ms Catriona Mackenzie, a consulting arborist, to view and assess the three remaining trees and provide an opinion as to the suitability of the trees for pruning or retention with respect to the applicants’ allegations that the trees are dangerous and should be removed. In her report dated 7 June 2015 (included in Exhibit 1) Ms Mackenzie states that she undertook a ground level inspection of the trees and applied the guiding principles of the International Society of Arboriculture’s Tree Risk Assessment Qualification (TRAQ). She states that she undertook only minor ground investigations and did not take any soil or tissue samples. The report includes appendices detailing the method, relevant terms, CV, photographs taken at the time of the inspection, and the Bury report. The report also includes an acknowledgment of the Expert Witness Code of Conduct in Schedule 7 of the Uniform Civil Procedure Rules 2005.

17. The Mackenzie report details her observations and comments on the health, structure, canopy bias, defects and so on for each tree and other relevant site details. In my summarising of her findings she considers that Tree A is healthy with no obvious defects, sound branch attachment, a very slight bias in the canopy to the north, northeast and northwest, no notable impediments to root growth, and a likely tension root extending to the southeast. Ms Mackenzie finds Tree B to be healthy with a very slight lean to the north-northwest consistent with crown competition, the crown is biased to the northwest, structurally poorly attached co-dominant stems with included bark, damage to the upper canopy as a consequence of the ‘tipped’ tree, debarking of a large tension root on the southwest, and highly disturbed ground to the south. For Tree C the results indicate she found the central leader to be dead or dying and obvious ground disturbance but with only one small root found to be severed.

18. Ms Mackenzie applies the Tree Risk assessment procedure and states that her analysis “is based on the likelihood of tree failure occurring within 12 months of assessment, under normal weather patterns only, (including such weather as the few days of strong winds experienced in the 2-3 weeks following the late April storms). The risk analysis does not account for ‘cyclonic’ type storms of rare or infrequent occurrence.”

19. Ms Mackenzie considers that while the applicants’ dwelling and backyard are within the target zone of tree A, she finds that given the health of the tree and the absence of any readily apparent defects, the likelihood of failure is improbable and the overall risk is low. For Tree B, the applicants’ property is also within the target zone and given the damaged rootplate and asymmetrical crown bias to the north-northwest the likelihood of failure is probable and overall risk is moderate. For Tree C she finds the likelihood of failure under strong storm conditions to be possible, the likelihood of the whole or part of the tree impacting a target is low or improbable, and overall the risk is low.

20. In reviewing the Bury report, Ms Mackenzie states that she cannot uphold Mr Bury’s claims as he provided no tree risk analysis or evidence to support his assertions. She states that only Tree B showed evidence of storm damage. In regards to the soil, she agrees that during the storm the strength of the soil would have been severely compromised and would have played a major part in the failure of the two trees however this soil supports many thousands of Grey Ironbarks in the area, the majority of which did not fail.

21. On the basis of her assessment Ms Mackenzie recommends the retention of trees A and C and either pruning of tree B to reduce the weight bias towards the applicants’ property plus an annual inspection, or removal of tree B.

22. Both parties submitted further material responding to, and refuting, each other’s initial responses.

23. The applicants take issue with elements of Ms Mackenzie’s report, in particular her consideration of the Erina soils and the category of the storm event. The first applicant states he is a qualified hydraulic engineer and their property has been inundated with water over their 14 year occupation; this necessitated the installation of a subsoil drainage system. The applicants include the extract for the Erina soil landscape from “Soil Landscapes of the Sydney 1:100 000 Sheet” with highlighted extracts – “Limitations –… low wet-strength subsoil, …seasonal waterlogging of footslopes”. They state they spoke to the SES officers. The applicants also include extracts from downloaded arboricultural literature which discusses root strength and tree anchorage. Appendix A in Exhibit B includes a composite of two photographs alleged to have been taken of tree A many years prior to the storm and then after the storm. According to the applicants, this proves that Tree A has moved and since the storm is on a greater lean towards their property. Exhibit B also includes a medical certificate for the second applicant dated late June 2015 stating stress and anxiety.

24. The respondents’ additional material (Exhibit 2) responds in detail to the material submitted by the applicants in Exhibit B and essentially refutes it and concludes that the Court should give no weight to the first applicant’s analysis of Ms Mackenzie’s report or the downloaded material as he is not an arborist.

25. During the hearing, the parties maintained their positions and continued to dispute the veracity of each other’s evidence. When questioned as to where Mr Bury had made his observations the applicants informed me that he had not accessed the respondents’ property but had taken the photographs over the applicants’ back fence.

26. The applicants also informed me that no soil profiles had been excavated in order to determine the depth to the subsoil however I was asked to observe water at the base of a stormwater inspection pit near the rear of their property. I saw water at a depth of at least 1.2m in what I was told was a pipe. The pit is associated with the subsoil drainage system installed on the applicants’ property. I observed two other pipes that discharged into the pit, neither of which had water flowing from them however one may have had water dripping from it. The applicants maintain that this is evidence of the very wet soils in the vicinity of the trees.

Findings

27. With the benefit of the site inspection and reviewing the material provided by the parties I make the following findings.

28. In regards to Mr Bury’s report, little if any weight can be given to it. Mr Bury’s inspection was limited to observing the trees from the applicants’ land. With the arboricultural expertise I bring to the Court, I agree with Ms Mackenzie that only Tree B showed any sign of any damage likely to have been caused by the storm and not all three trees as claimed by Mr Bury. His report does not include a method statement or any explanation of the risk assessment systems he mentions nor any rationale as to how he came to his conclusions. While I note that Mr Bury’s report was sought before the filing of the application and thus there was no requirement for him to acknowledge the Expert Witness Code of Conduct, the quality of the report falls far short of what should reasonably be expected from an expert report.

29. Ms Mackenzie’s report clearly defines what she looked at, what she found and why she formed her opinion. With respect to the applicants’ criticism of her consideration of the soils, the applicants rely very heavily on Mr Bury’s stated 25 years of local experience. However, Mr Bury provides no discussion of the Erina soils nor have the applicants or Mr Bury undertaken any tests to support their claims. The use of a double negative in the second paragraph of his statement could imply that Mr Bury is saying the soils may be capable of supporting the weight of the trees.

30. The applicants include a description of the ‘Erina’ soils. Again, with the expertise I bring to the Court, Erina soils are one of many ‘soil landscapes’. Soil landscapes are mappable areas of similar soils and topographies used for larger scale land use planning. One soil landscape can comprise several identifiable and representative soil profiles of varying depths and characteristics. Each described soil landscape is published with a summary of its landscape (topography), soils (range of profile types), and limitations (for development). More detailed descriptions and schematic cross-sections follow. While the Erina soil landscape is one of several that have either low wet strength subsoils or which are subject to seasonal waterlogging, the depth at which the subsoil occurs is variable and one aspect of determining whether there may be sufficient rooting depth. No evidence to this effect has been adduced by the applicants.

31. The small amount of water at a considerable depth that I observed in the applicants’ storm water pit is not evidence of excessively wet soils.

32. I place no weight on the hearsay evidence in Exhibit B that purports to report the conversations between the SES officers and the applicants. Similarly, I place no determinative weight on the first applicant’s analysis of the downloaded arboricultural material as he is not an arborist and he apparently did not seek any further assistance from Mr Bury.

33. Apart from the low set strength of the Erina soils, the applicants also rely quite heavily on the original photographs and the composite photograph in Appendix A of Exhibit B. After carefully inspecting both photographs, based on the relative positions of the dwelling in the background, I have concluded that they were taken at different angles and from slightly different positions and therefore the composite photograph is not evidence of any movement of Tree A. All it proves is that Tree A is on a slight lean. As these trees are likely remnants of the original vegetation, the lean may be the result of competition for light or something other than movement of the root plate.

34. In regards to Tree B, I concur with Ms Mackenzie’s observations and findings. There is evidence of significant damage to a large structural tension root. Given the distribution of the canopy, the damaged root is sufficient to raise concerns about the long term stability of the tree. It would appear from the slightly confusing SES job sheet that this tree was the subject of the comments noted in paragraph [11]. Given the proximity of this tree to the applicants’ property, should it fail, it could cause damage to their property or injury to any person who may be on their property at the time.

35. Having considered the evidence I find that s 10(2) is not met for Tree A but is met for Tree B. Therefore, the Court’s jurisdiction to consider what orders may be appropriate for Tree B is engaged. This requires consideration of relevant discretionary matters in s 12 of the Act.

36. While the tree is a local species and will play a role in the local ecosystem, I am relying on Ms Mackenzie’s recommended options. While pruning may reduce the loading on the damaged root, given the extent of the bias and the bark inclusion between the two main leaders this would necessitate removal of a significant amount of foliage. This in turn may have an impact on tree health. I am not convinced that pruning is a practical long term option. The only other option is removal. Given the distance of the tree from the other trees, grinding the stump and nearby surface roots is unlikely to cause any significant disturbance of the root systems of the remaining trees.

Orders

37. As a consequence, the Orders of the Court are:

1. The application is upheld in part.

2. The application to remove Tree A and Tree C is dismissed.

3. Within 90 days of the date of these orders, the respondents are to engage and pay for an AQF level 3 arborist to remove Tree B to ground level and grind the stump.

4. The work in (3) is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.

5. The applicants are to provide all necessary access, on reasonable notice, for the purpose of quoting and or the safe and efficient carrying out of the work in order (3).

____________________________

Judy Fakes

Commissioner of the Court

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Decision last updated: 05 August 2015