Crosskill v Koster

[2014] NSWLEC 1241

Land and Environment Court

New South Wales

Medium Neutral Citation:	Crosskill v Koster [2014] NSWLEC 1241
Hearing dates:	21 November 2014
Decision date:	21 November 2014
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Appeal upheld in part see paragraph [22]
Catchwords:	TREES [NEIGHBOURS] Damage to property, potential risk of injury; orders for pruning
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Barker v Kryiakides [2007] NSWLEC 292 Hinde v Anderson & anor [2009] NSWLEC 1148 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	Ms F Crosskill (Applicant) Mr R Koster (Respondent)
Representation:	Applicant: Ms F Crosskill (Litigant in person) Respondent: Mr R Koster (Litigant in person)
File Number(s):	20615 of 2014

Judgment

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

1. COMMISSIONER: The applicant built her dwelling in Bellingen about 14 years ago. At the time an established Silk Floss Tree (Ceiba speciosa (syn. Chorisia speciosa)) was growing close to the common boundary - albeit smaller than its present size.

1. The applicant has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the removal of the tree. While the orders were not stated in the application form, at the on-site hearing the applicant stated that she would be very disappointed if anything other than removal were to be ordered.

1. The respondent, who purchased the adjoining property on which the tree is growing about five years ago, does not want the tree removed as it was one of his reasons for purchasing his property.

1. In applications made under Part 2 of the Act the key jurisdictional test is found in s 10(2). This states that the Court must not make an order unless it is satisfied that the tree concerned 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.

1. 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...".

1. 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 characteristics of the tree/s, any history of previous failures and the circumstances of the site apparent at the time of the hearing.

1. The applicant's principal contention is that branches falling from the tree could injure her or anyone else on her property. The applicant is also concerned that falling branches and other debris could damage her property. In support of her claim, the application includes photographs of fallen branches on various parts of her property including one branch across her compost bins; this branch broke the top rail.

1. The branches shown in the photographs are dead however the applicant stated that over the years many green branches had also come down.

1. Apart from falling branches, the applicant is concerned about the dropping of the abundant flowers produced by the tree and build-up of them on her roof, gutters and solar panels. She is also concerned about the fallout onto her deck and paving. In her application claim she states that a visitor slipped on the flowers and fell.

1. The applicant included a one page letter from Mr Nick Jenkins of Valley Tree Service. Mr Jenkins does not provide his qualifications. Mr Jenkins inspected the tree on 7 August 2014. His letter states:

This is a huge tree, the canopy of which extends over her property and house.

There are many safety issues with this tree: included bark in the main fork, decay in the major limbs, large dead branches and broken, fractured and crossing limbs in the canopy.

The potential for injury to persons and damage to the dwelling is high.

1. Mr Jenkins makes no recommendations for the trees' management. Mr Jenkins did not attend the hearing.

1. With the arboricultural expertise I bring to the Court, I observed the tree to be a large, mature and well-established specimen with a healthy canopy. I concur in part with Mr Jenkins' observations. The tree bifurcates at about 4m above ground. There appears to be some included bark between the stems but no signs to indicate likely/ imminent failure. Less than 5% of the canopy comprises dead wood - most of which are internal branches; in my opinion this is within a normal range. Some of the dead branches are in a state of advanced degradation and their failure in the near future is likely.

1. There are several large stubs left by previous inexpert pruning. The most concerning of these defective branches overhang the applicant's property. Some of these support epicormic shoots with minimal attachment. It is clear from the ground that some of the previously lopped/shortened branches have decay and other forms of degradation of the wood. The branch shown fallen across the applicant's compost bin is consistent with being an epicormic shoot arising from one of these pruning wounds.

1. On the basis of the evidence I am satisfied to the extent required by s 10(2) that dead wood falling from the tree could cause injury to any person on the applicant's property and could in the near future cause damage to her property. I am also satisfied that a branch from the tree caused damage, albeit minor, to the applicant's compost bin. I am also satisfied that damage or injury could arise from the failure of part or all of the defective/ previously lopped branches.

1. Therefore as the jurisdictional test in s 10(2) is met, the Court's powers to make orders under s 9 of the Act are engaged. The making of orders requires consideration of relevant matters in s 12 of the Act. Relevant here are:

• The tree is located on the respondent's property within 2-3 metres and upslope of the common boundary (s 12(a));
• The removal of dead wood and defective branches will have little impact on the health or structure of the tree as long as the pruning is in accordance with the provisions of AS4373:2007 Pruning of Amenity Trees (s 12(b2));
• The tree contributes to the amenity of both parties' properties and to the natural landscape and scenic value of the immediate vicinity. Its size, prominence in the landscape and flowering will afford it some value to public amenity (s 12(b3)(e)(f));
• The applicant stated that she was advised by council that the tree was not listed as being locally significant; there was some question as to whether it had been planted by Dr Hewitt, a former local doctor responsible for many of the exotic tree plantings that characterise Bellingen (s 12(c));
• The tree is growing on a very gentle slope and its buttress roots may therefore play a role in soil stabilisation (s 12g)); and
• On several occasions, the applicant has paid for the removal of overhanging branches (s 12(h)(i)).

1. Having considered the evidence and viewed the tree, I am not satisfied that the risk of injury is such that the tree should be removed. While a portion of it overhangs the applicant's property, the majority overhangs the respondent's property and he did not raise any concerns about it.

1. The majority of branches that have fallen from it appear to have been dead - the failure of dead wood is predictable and readily managed by its periodic removal. Although the applicant maintains that many green branches have fallen from the tree the applicant provided no evidence to substantiate this claim.

1. However, I have sufficient concerns about the integrity of some overhanging branches to justify the selective removal of those limbs. In particular, there are two sections of the stem closest to the applicant's property (the northern stem) that should be removed. (This stem bifurcates about 2 m above the primary bifurcation.) The first is the remaining dead stub and epicormic shoot on the first branch arising from the main element of the northern stem. The other is the distal or northern end of the continuation of the secondary bifurcated stem (see photograph attached to this judgment). In addition, any other decayed branches may require removal.

1. In regards to the fallout of leaves and flowers, while the applicant raised this as a secondary issue, the evidence is insufficient to order any intervention with the tree on this basis. The Court has published a Tree Dispute Principle in Barker v Kryiakides [2007] NSWLEC 292 which states that:

For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis.

The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree.

1. There are many examples of the application of this Principle. To date it has been adopted consistently and there have been no examples where the Court has been satisfied to the extent required by s 10(2) that any orders should be made for any intervention with a tree on this basis; and so it is with this matter.

1. As discussed in Hinde v Anderson & anor [2009] NSWLEC 1148, a fresh application can be made if the circumstances have changed since the Court determined the earlier application and there is fresh evidence.

1. Therefore as a consequence, the Orders of the Court are:

(1)   The application to remove the tree is refused.

(2)   The respondent is to engage and pay for an AQF level 3 arborist with appropriate insurance cover to remove the portions of branches described in paragraph [18] of this judgment and illustrated in the photograph in annexure A.

(3)   In addition, the arborist is to remove all dead wood greater than 40 mm in diameter at its base from all parts of the tree overhanging the applicant's property to a distance of 3m inside the respondent's property.

(4)   The works in orders (2) and (3) are to be completed by 1 February 2015.

(5)   The works in (2) and (3) are to be carried out in accordance with AS4373:2007 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(6)   The applicant is to provide all necessary access for the purpose of quoting and for the safe and efficient carrying out of the works in (2) and (3) on reasonable notice.

(7)   The works in order (3) are to be carried out at the respondent's expense every two years within two weeks either side of the anniversary of the first pruning until such time as the tree is removed.

(8)   Orders (5) and (6) apply to order (7).

Judy Fakes

Commissioner of the Court

Annexure A

Decision last updated: 24 November 2014