Chapman v Stevens Holdings Pty Ltd

[2016] NSWLEC 1128

Land and Environment Court

New South Wales

Medium Neutral Citation:	Chapman v Stevens Holdings Pty Ltd [2016] NSWLEC 1128
Hearing dates:	30 March 2016
Date of orders:	07 April 2016
Decision date:	07 April 2016
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application granted – see [38]
Catchwords:	TREES [NEIGHBOURS]: Risk of injury to occupants of respondent’s property as a consequence of the actions of the applicant; applicant to pay for removal and replacement
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Uniform Civil Procedure Act 2005
Category:	Principal judgment
Parties:	Gregory John Chapman (Applicant) Stevens Holdings Pty Ltd (Respondent)
Representation:	Applicant: Mr M Magennis (Solicitor) Respondent: Mr D Burgin (Solicitor)   Solicitors: Applicant: Searson Shannon & Co. Pty Ltd Respondent: Stevens Group
File Number(s):	21191 of 2015

Judgment

1. COMMISSIONER: Mr Chapman, the applicant in these proceedings, owns a block of land on Hastings River Drive, Port Macquarie. He has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the removal of eleven trees growing on the respondent’s property.

2. The orders are sought on the basis that the trees pose a risk of injury to anyone on the respondent’s property. The respondent’s property is a caravan park on which there are a significant number of cabins. The orders filed with the Class 2 Application request that the tree removal be at the respondent’s expense. Damage to property is not pressed, as the applicant’s land is vacant.

3. The respondent does not wish to remove the trees but should the Court make orders for their removal, the respondent has filed alternative orders in the following [summarised] terms:

1. The applicant to pay the cost of:

1. any tree removal ordered by the Court, inclusive of stump grinding, excavator hire, root barriers.

2. Replanting any replacement tree ordered by the Court as set out in the quotation of Woodvale Tree Services [supply of 800 litre trees @ $1,860.00 each plus freight; plus planting and maintenance].

3. Roadway repair and part replacement as set out in the quotation and report prepared by Robson Civil Projects.

2. The applicant pay the respondent the sum of $7,638.95; being the cost of the report from Terras Landscape Architects.

3. The applicant to pay the respondent compensation for damage to the respondent’s trees having regard to the valuation included in the report by Terras Landscape Architects.

4. In regards to the respondent’s proposed order #2, Commissioners of the Court do not have the power to order payment of legal costs, costs of expert reports, application fees and so on. Should either party wish to press an order for costs within the meaning of the Uniform Civil Procedure Act 2005, a separate Notice of Motion can be filed which would then be heard by the Registrar or a Judge of the Land and Environment Court.

5. In respect of the respondent’s proposed order #3, s 7 of the Act enables an owner of land to apply to the Court for an order to remedy, restrain or prevent damage to property on an applicant’s land, or to prevent injury to any person, as a consequence of a tree to which the Act applies that is situated on adjoining land (the respondent’s land). The Court has no jurisdiction under the Trees Act to award compensation for damage to property on a respondent’s land, which in this case comprises the trees the subject of the application [being property on the respondent’s land].

6. During the on-site hearing, Mr Chapman agreed to the removal of the four native trees identified in the respondent’s arborist’s report as well as any other trees specified by the Court. He objected to the proposed size of the replacement trees as well as to the respondent’s proposed orders 1c and 3.

7. The trees in question are eleven of the trees growing along the eastern boundary of the respondent’s property within 1-2 m of the common boundary fence. The row extends to the south beyond the common boundary and past a storage complex to the south of the applicant’s land. There are other smaller trees in the row adjoining the applicant’s property however they have not been identified for removal. The nominated trees are identified as:

• T1-T4 – Cinnamomum camphora – Camphor Laurel

• T5 – Eucalyptus x patentinervis – Bastard Mahogany

• T6 – T7 – Camphor Laurel

• T8 - Eucalyptus x patentinervis – Bastard Mahogany

• T9 – Camphor Laurel

• T10 – Eucalyptus robusta – Swamp Mahogany

• T11 – Casuarina cunninghamiana – River Oak

8. All are mature trees and all have been heavily pruned on the eastern side, the side adjoining the applicant’s property.

Relevant background

9. In 2012 Mr Chapman lodged a Development Application DA 2012/460 for a new commercial complex on his property. The documentation accompanying the DA included an Arborist Report prepared by Mr John Kennedy of JKL Consultants. The purpose of the report was to assess the trees and consider the impact on them of the proposed development. The inspection carried out on 13 November 2012 notes all trees with varying degrees of asymmetry in their canopies and most with minor bark inclusions or evidence of previous lopping. Mr Kennedy applied the methods in AS4970-2009 Protection of Trees on Construction Sites for determining the tree protection zone and calculated structural root zone. He concludes that given the proximity of the proposed concrete strip footing on the boundary line and therefore within 2m of the trees, the consequential loss of structural roots could render the trees unstable and open to failure. In addition he notes the need for additional pruning to clear the proposed adjoining structures. The arborist recommends removal of the trees and their replacement with 12 plants including two koala browse species and twelve native shrubs in accordance with ‘council policy’. Photographs included in the report show branches overhanging the applicant’s property; the asymmetry of the canopy presumably applies to the crown lifting over the internal roadway on the respondent’s land.

10. On 28 February 2013 Port Macquarie-Hastings Council granted development consent for a mixed use building complex on the applicant’s land. The approved plans show 5 proposed ‘bays’ and a paved car park. The plans show the construction of a concrete panel wall, approximately 7m high, along the entire western boundary of the applicant’s property, being the common boundary between the parties’ properties. Condition of the development consent (Exhibit C) B 15 states:

B – PRIOR TO THE ISSUE OF A CONSTRUCTION CERTIFICATE

(15)   (B062)   All of the trees identified on the adjoining property in the submitted DarkHart Ecological Assessment report will be structurally compromised by the development and shall be removed.

11. Surprisingly, there is no mention of the need for owner’s consent and there is no condition of consent requiring the replacement of the trees.

12. It appears that the reason for the imposition of this condition is that as the applicant’s land is flood prone, the site must be filled to above the specified flood level. In order to retain the fill and the future development, a retaining wall is to be constructed along the common boundary. It appears as though the retaining wall is also the western wall of the commercial bays.

13. It appears from emails included in the Statement of Mr Paul Cutting (Exhibit 3), the respondent’s Development Manager, that there had been ongoing discussions between the parties about the fate of the trees. Owner’s consent has not been given for their removal. It seems that in mid-February 2015, Mr Chapman engaged an arborist to remove branches overhanging his property. When the manager of the respondent’s property challenged the arborist, he left the site. According to Mr Chapman’s Statement of Evidence (Exhibit B), Mr Chapman sought advice from council’s tree management officer. He states that he was advised that council permission was not required for the removal of overhanging branches. Mr Chapman engaged another arborist to carry out the work from his property. According to oral evidence given during the on-site hearing, he met with the arborist but left before the pruning works commenced. That work was completed on about 7 April 2015. Mr Chapman states that he was informed by the arborist that the work was done under the supervision of the caravan park Manager and council’s Tree Management Officer. This statement could not be verified and was challenged by Mr Burgin as hearsay; the objection was upheld.

14. The subsequent pruning removed branches well beyond the fence line and back to the main trunk of each tree. The result is an extremely asymmetrical canopy; essentially only the western portions of the canopies remain. With the arboricultural expertise I bring to the Court, the pruning carried out on the trees goes well beyond the extent of reduction pruning, as described in AS4373:2007 Pruning of Amenity Trees that would have been reasonable in order to clear the boundary fence.

15. Part A – GENERAL MATTERS – Condition 20 of the development consent states:

(20)   (A197) A non-approved stormwater drainage pit exists at the rear of this development that drains water into the public storage unit development. This drainage pit and stormwater connection is to be removed and capped off to the requirements of Council’s Section 68 Local Government Act plumbing inspection officer.

16. Whilst the pit is in the south-eastern corner of his allotment, it appears to have been fed by a PVC stormwater pipe located within about 1 m of the common boundary.

17. In order to comply with this condition, Mr Chapman used an excavator with a ‘finger’ to extract the pipe. The effect of this extraction was to displace and disrupt the soil and break roots above the pipe. Photographs in Exhibit 3 clearly show the resulting trench formed by the extraction of the pipe. Several photographs show damage to relatively large woody roots.

18. At the time of the hearing the applicant’s land had been filled to a height of 1-1.2 m above existing ground level with an informal batter back from the common boundary. This obliterated all signs of the excavation/ pipe removal.

19. In May 2015 Mr Chapman engaged Mr Peter Berecry of Port Macquarie Tree Fella, an arborist, to inspect the trees and prepare a report. Mr Berecry reviewed Mr Kennedy’s report and the construction plans. This was carried out post the heavy pruning and the removal of the stormwater pipe. Mr Berecry recommends the removal of three trees, trees 8, 10 and 11 on the basis of severe over-pruning and damage to structural roots in the plane of the lean of the trees. He considers that the other trees can be retained as they have a lower likelihood of failure due to their smaller size. He appears to adopt Mr Kennedy’s recommendation that the roots be pruned under the supervision of an arborist and a root barrier installed.

20. In March 2016 the respondent engaged Mr Shaun King of Terras Landscape Architects to assess the trees and prepare a report (Exhibit 2). In addition, although not identified in his introduction, Mr King used the ‘Thyer Tree Valuation” method (v. 2000b) to place a monetary value on each of the eleven trees. [This forms the basis of the respondent’s proposed order #3.] Mr King also reviewed the applicant’s arborists’ reports.

21. On the basis of the root damage and pruning, Mr King recommends the removal of trees 5, 8, 10 and 11. He states that while the remaining trees pose little risk of failure due to their size, further incursion to the boundary into their structural root zones may destabilise the trees and also lead to further decline. If they are to remain he recommends a maintenance program. Mr King recommends that all replacement trees are to be compliant with AS2303: 2015 – Tree Stock for Landscape Use.

22. The respondent has obtained quotes from Woodvale Tree Services for the removal and stump grinding of the four trees identified by Mr King, excavation of the adjoining driveway to investigate and remove any roots ($29,443.70) the supply and installation of a root barrier, supply of 4 x 800 litre replacement trees, site preparation, planting, watering and on-going maintenance for 3 months ($31,805.95).

23. The respondent also engaged Cardno Geotech Solutions to comment on the potential impact of tree removal on the adjoining road pavement on the respondent’s property. The report recommends the full-depth reconstruction of the pavement as, in the engineer’s opinion, there are likely to be roots below the pavement which will decompose and lead to deterioration of the pavement. A quote from Robson Civil Projects estimates a cost of $67,000 +GST.

24. In applications under Part 2, the key jurisdictional test is found in s 10(2). 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.

25. In this matter, damage to property, s 10(2)(a) is not pressed. Section 10(2)(b) must be applied to each of the trees the subject of an application.

26. Both parties rely on the reports of their arborists and other experts.

Findings

27. On the basis of the photographs included in Exhibits 2 and 3 and the arboricultural expertise I bring to the Court I agree with Mr King that the four largest trees, 5, 8, 10 and 11 have suffered the greatest damage to their roots and to their canopies. During the on-site hearing I also noted the poor condition of tree 9. There is a real risk that these trees have been destabilised and their health compromised. Although the remaining trees have had less impact, it is reasonably foreseeable that the impact they have had to their root systems as a consequence of the removal of the pipe will manifest itself in some dying back of the canopy, this is a common response. Given the location of the trees close to an internal road in a caravan park and its predictable use by pedestrians, the risk of injury as a result of the expected decline of the trees is foreseeable. The impact from the approved construction works will be even greater and could lead to destabilisation of some trees as well as further decline.

28. Therefore I am satisfied that s 10(2)(b) is met for all eleven trees and they should be removed and replaced.

29. The cause of the trees’ decline is undoubtedly the excessive pruning carried out on behalf of the applicant and particularly the damage to the root system caused by the removal of the stormwater pipe by the applicant. While there was some discussion as to whether the pruning work was supervised by either someone from the council or someone from the caravan park, this amounts to hearsay and cannot be relied upon.

30. On this basis the applicant is ordered to remove and replace the trees at his cost. The size of the replacement trees was discussed. I accept Mr Chapman’s experience with the local soils and depths to the water table and rather than 800 litre trees, I have determined that the replacements for the 4 x largest trees should be in 400 litre containers. The remaining stock is to be a minimum of 100 litres. The trees currently provide screening and amenity to the respondent’s land; in my view it is only reasonable that advanced stock be used to replace some of that amenity as quickly as possible, especially given the fact that the development on the applicant’s land replaces open space with a 7m high concrete wall on the boundary. To facilitate the replacement of amenity, the stock must comply with AS2303: 2015 – Tree Stock for Landscape Use and be free of all defects; in particular the trees must have a well-divided and uncompromised root system that enables rapid establishment.

31. The tree removal is to include the stump grinding of all trees to a depth of at least 300mm and along all major woody roots. The grindings are to be removed and the holes backfilled with suitable site or sandy soil.

32. Given the nature of the approved development, and the possible incursion of building works onto the respondent’s property and therefore potential damage to new trees, the planting is to be carried out within one month of the completion of the construction of the boundary wall.

33. In this time, the respondent is to engage and pay for an appropriately qualified landscape designer, who need not be a landscape architect, to prepare a simple landscape plan and specification which specify the location and species of at least four replacement canopy trees and seven other tall shrubs or trees to be incorporated along the eastern boundary. If the council has a preferred list of species this may be a useful source of information. I note in Mr Kennedy’s report that the use of koala browse species may be appropriate. With the expertise I bring to the Court I consider that the new trees may best be located in the spaces between the exiting trees in order to avoid any residual root mass, and at least 2 m from the boundary; however, this is to be determined by the landscape designer. The plan is to include a schedule of plants and the nominated container size of 400 litre or 100 litre and a requirement that all stock must comply with the general requirements detailed in AS2303: 2015 – Tree Stock for Landscape Use. The plan is also to include a planting specification and maintenance schedule for the first three months after planting. The cost of the plan and specifications is to be reimbursed by the applicant.

34. The planting of the trees and a three month establishment period is to be at the applicant’s expense. The work must be carried out by appropriately qualified and experienced landscape contractors.

35. In regards to the installation of a root barrier, during the hearing Mr Chapman explained the depth and nature of the proposed footing. It was determined that a root barrier is unnecessary.

36. In respect of the reconstruction of the road, the internal road showed the expected signs of wear and tear. There was no evidence of root incursion although they may be there. While the respondent’s position is that this is an extension of the removal of the trees, another view is that this is a peripheral issue which constitutes damage to property on a respondent’s land. I hold the other view which places the repair of the road beyond the Court’s jurisdiction to order. Therefore, the respondent’s proposed order 1(c) is rejected.

37. As discussed during the hearing, the applicant is to be given an opportunity to obtain quotes for the works.

Orders

38. As a consequence of the foregoing, the Orders of the Court are:

1. Within 30 days of the date of these orders, the applicant is to engage and pay for an arborist with a minimum AQF level 3 qualification in Arboriculture, and appropriate insurance cover, to remove the eleven trees the subject of this application from the eastern boundary of 128 Hastings River Drive, Port Macquarie. The stumps are to be ground to a depth of at least 300mm and include all major woody roots. The grindings are to be removed and the site made good with a suitable sandy soil mix or local topsoil.

2. The works in (1) are to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry. The contractor must be responsible for ensuring adequate access for any necessary machinery and for any necessary traffic control.

3. The respondent is to provide all reasonable access on reasonable notice for the purpose of quoting the works in (1) and at least 3 working days’ notice for the safe and efficient carrying out of the works in (1). The applicant or their contractor is responsible for ensuring the caravan park manager is aware of the proposed timetable and scope of works.

4. Within 40 days of the date of these orders, the respondent is to engage and pay for an appropriately qualified landscape designer (this need not be a landscape architect however this will depend on locally available expertise), to prepare a simple landscape plan and specifications in the terms detailed in paragraph [33] of this judgment. A copy is to be provided to the applicant for the purpose of obtaining quotes for the implementation of the replacement planting as specified.

1. The applicant is to reimburse the respondent the cost of the landscape plan and specifications within 21 days of the receipt of those documents and a tax invoice.

2. The applicant is to engage and pay for an appropriately qualified and experienced landscape contractor, with appropriate insurance cover to source the stock, and install and maintain the replacement trees as detailed in the landscape plans and specification described in order (4).

3. The works in (6) are to be completed within 30 days of the completion of the western wall of the applicant’s approved development. The 3 month maintenance period commences from the date of planting.

4. The respondent is to provide all reasonable access on reasonable notice for the purpose of quoting the works described in (4) and at least 3 working days’ notice for the safe and efficient carrying out of the works in (6). The applicant or their contractor is responsible for ensuring the caravan park manager is aware of the proposed timetable and scope of works.

5. The exhibits except A are returned.

_____________________

Judy Fakes

Commissioner of the Court

**********

Decision last updated: 07 April 2016