Fell v Brasier

[2021] NSWLEC 1666

Land and Environment Court

New South Wales

Medium Neutral Citation:

Fell v Brasier [2021] NSWLEC 1666

Hearing dates:

19 August and 20 September 2021

Date of orders:

2 November 2021

Decision date:

02 November 2021

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

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

(2)   Within 60 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 prune the two Angophora costata identified as T1 and T2 in the report of Kyle Hill dated 13 July 2021 as follows:

(a)   reduce overextended branches above the applicant’s property, reducing their crowns by up to 10% total crown mass;

(b)   remove deadwood greater than 30mm in diameter from the trees’ crowns above the applicant’s property.

(3)   Pruning works ordered in (2) must be done in accordance with AS 4373 Pruning of amenity trees and the 2016 Safe Work Australia Guide to managing risks of tree trimming and removal work.

(4)   The respondent is to give the applicant 2 days’ notice of the works.

(5)   The applicant is to allow all access necessary for the works to be completed during reasonable hours of the day.

(6)   The exhibits are returned other than A and B.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – number of trees unclear in application – application for two trees – whether both trees should be included in this decision – whether trees have caused damage – whether further damage or injury is likely – orders made for further tree assessment and report – whether trees should be removed or pruned – orders for pruning

Legislation Cited:

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

Uniform Civil Procedure Rules 2005, r 31.23

Cases Cited:

Yang v Scerri [2007] NSWLEC 592

Texts Cited:

AS 4373-2007 ‘Pruning of amenity trees’

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

Category:

Principal judgment

Parties:

Christopher Fell (Applicant)
Lyndall Brasier (Respondent)

Representation:

C Fell (Litigant in Person) (Applicant)
L Brasier (Litigant in Person) (Respondent)

File Number(s):

2021/123599

Publication restriction:

No

Judgment

Background to the application

1. Christopher Fell (‘the applicant’) has applied to the Court, pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’), seeking orders relating to two trees on the neighbouring Seaforth property belonging to Lyndall Brasier (‘the respondent’).

Orders to be determined for two trees

2. The application filed with the Court, and served on Ms Brasier, sought the following orders:

1. An order that Respondent remove the damaged Angophora costata tree located on [the respondent’s address].

2. An order that the Respondent pay for the cost of removal of the tree pursuant to Order 1.

3. The claim details form accompanying Mr Fell’s application identified one tree, T1 (at question 3, Form H). A plan accompanying the application showed a tree, highlighted in light green, toward the front of Ms Brasier’s property and overhanging the front half of Mr Fell’s dwelling. Other material filed by Mr Fell referred to a second tree for which he sought orders. A separate plan had highlighted a tree close to Ms Brasier’s own dwelling and overhanging Mr Fell’s property near the rear of his dwelling. Following further explanation from Mr Fell at the outset of the hearing, it became clear that he wanted orders for the respondent to remove the tree near the rear of his dwelling (‘T1’ in this decision, highlighted in Exhibit C) and orders for the respondent to prune the tree overhanging the front part of his dwelling (‘T2’ in this decision, highlighted in Annexure B to Exhibit B). The numbering used in this decision aligns with that in the report (within Exhibit 1) of Kyle Hill, arborist, updated 13 July 2021, and shown in Figure 2 on p 3 of that report.

4. Despite the initial confusion around whether Mr Fell’s application included one or two trees, he had filed with the Court evidence regarding both trees. In responding to the application, Ms Brasier engaged Mr Hill, who wrote on p 1 of his report that he was briefed by Ms Brasier to prepare a report to be used in these proceedings. Mr Hill assessed and reported on both trees T1 and T2. Ms Brasier was aware of the applicant’s issues relating to both trees. I was satisfied that Ms Brasier would not be disadvantaged by the Court including both trees in this determination, so granted leave for Mr Fell’s application to include both T1 and T2.

The hearing

5. The matter was heard via MS Teams. At the initial hearing of 19 August 2021, I explained that a subsequent site inspection would be arranged if that seemed necessary to complete the decision. During the hearing I determined that tree T1 required further investigation, rather than relying on ground-based observations of other arborists in existing reports, or my own at a later date. Orders were made for the respondent to engage an arborist to undertake testing of T1 and to submit a further report, after which I heard further submissions from the parties on 20 September 2021. The orders made at the first hearing were:

“(1) Within 21 days of the date of this order, the respondent is to engage and pay for a suitably qualified arborist (minimum AQF level 5) with appropriate insurances to test the structural integrity of the stem of tree T1 (as highlighted in Exhibit C) at and around the large visible stem defect (described in Exhibit D as being ~5 metres above ground level) using suitable testing methods such as sonic tomography, resistance drilling, or a combination of both. The arborist is to prepare a clear and concise report that outlines the methodology, shows and discusses the findings, and makes logical conclusions and recommendations.

(2) The respondent is to give the applicant 24 hours’ notice of the arborist attending.

(3) The applicant is to allow any access required for the arborist to complete the testing.

(4) Within 28 days of the date of this order the respondent is to provide a copy of the report to the applicant and file a copy with the Court.”

6. At the initial hearing, each party had an arborist provide oral evidence. Ms Brasier’s arborist, Mr Hill, had prepared a report for Ms Brasier to use in these proceedings. Mr Fell relied on oral evidence from Stuart Sutton, arborist. Mr Sutton had not prepared a report for these proceedings, but had written a letter in June 2021, unrelated to these proceedings, to certify that excavation works on Mr Fell’s property beneath tree T1 had been adequately supervised and had not adversely impacted the tree. Although Mr Fell has engaged other arborists to specifically assess the condition of T1, most recently Tristan Bradshaw in December 2020, Mr Fell explained that he relied upon Mr Sutton to review their findings in oral evidence and to express his own opinions regarding the tree. In the absence of a report from Mr Sutton complying with Schedule 7 to the Uniform Civil Procedure Rules 2005 (the ‘UCPR’) (at r 31.23), his evidence was given very little weight. Mr Hill was also available at the second hearing to answer questions regarding additional evidence arising from the latest inspection. He had assisted during testing of T1 but did not prepare the report.

Framework for this decision

7. Before making orders, the Court must be satisfied that the applicant has made reasonable effort to reach agreement with the tree owner (s 10(1)(a) of the Trees Act).

8. Under Pt 2 of the Trees Act, the Court can only make orders if 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 (s 10(2) of the Trees Act). The Court must consider a range of matters at s 12 of the Trees Act before making orders as it sees fit at s 9.

The applicant made reasonable effort to reach agreement

9. Mr Fell has discussed the trees with Ms Brasier and written to her requesting removal of T1. He applied to Council for consent to remove T1 (Council required the tree owner’s consent before considering the application). He applied for mediation through the Community Justice Centres but Ms Brasier did not wish to mediate. I am satisfied that Mr Fell’s efforts to reach an outcome were reasonable.

The trees

Reports in evidence

10. The arboricultural reports in evidence provide, to varying degrees, useful information to the Court. Mr Fell engaged Tristan Bradshaw to provide a risk assessment of T1, with Mr Bradshaw’s report dated December 2020 (the ‘Bradshaw report’, exhibit D). The report was not prepared as expert evidence. Mr Bradshaw applied the International Society of Arboriculture’s (ISA) risk assessment method (also known as ‘TRAQ’) and included his methodology, findings and assumptions. Whether or not one accepts his conclusions, the report clearly shows how they were reached.

11. In 2017, Mr Fell engaged Andrew Scales, of Naturally Trees, to provide a condition and risk assessment of T1, with Mr Scales’ report dated 28 November 2017 (‘the Scales report’, exhibit E). The report was prepared to inform Mr Fell; it was not prepared as expert evidence in these proceedings. Mr Scales applied the Quantified Tree Risk Assessment method (QTRA). Mr Scales’ risk assessment assumptions and scoring are not explained, such that his client could not interpret them and his conclusions do not greatly assist the Court.

12. In February 2015 Bradley Magus, of Abacus Tree Services, assessed 16 trees for the Fells to provide information to assist with the Fells’ development application for a new dwelling. Mr Magus’ report (‘the Magus report’, exhibit F) included T1 (‘Tree 12’ in his report) and T2 (‘Tree 7’ in his report).

13. Mr Hill’s report of July 2021 (‘the Hill report’, within exhibit 1) was prepared as expert evidence. Mr Hill’s report provides limited evidence regarding either tree. Mr Hill has instead focussed his attention on rebutting the Bradshaw, Scales and Magus reports, and providing information of a general nature.

14. In accordance with the orders made 19 August 2021, Ms Brasier filed a report by Mark Hartley, of Arborist Network, dated 6 September 2021 (‘the Hartley report’, exhibit 2), prepared as expert evidence. Mr Hartley’s report includes the results of the very limited testing of tree T1 undertaken in response to the Court’s orders, along with interpretation and discussion. Mr Hartley applied the QTRA methodology for assessing risk, although risk assessment was not included in the interlocutory orders. Mr Hartley’s report does not include his assumptions and reasoning applied to his risk assessment.

Tree T1

15. Tree T1 is an Angophora costata (Sydney Red Gum or Smooth-barked Apple). Based on the arborists’ reports, it seems likely that T1 is 20–25 metres tall, in good health, with no significant structural defects within its crown. Deadwood present within the crown is no more than is typical for this and many other species.

16. T1 has a cavity in its stem approximately 6 metres above ground level. A long wound extends for more than a metre up the stem’s western side, covering 20% or so of the stem’s circumference (the Hartley report). Within the wound’s exposed necrotic wood is an opening to a cavity. Sulphur-crested cockatoos occupying the cavity have apparently done so for some time. T1’s stem swells around the wound and cavity as a result of the growth of reaction wood.

17. The Magus report recommended removal of T1 (p 31) due to “extensive decay in the trunk.” Being a report to provide tree advice in relation to proposed development on the Fells’ property, Mr Magus also recommended, as an alternative option, relocating an outdoor area.

18. The Scales report recommended removal of T1 (p 1) due to “…a 1 in 3,000 chance that the subject tree could fail [at the stem defect], over the next calendar year, to cause significant damage to the adjoining dwellings or persons.” As stated above, Mr Scales did not sufficiently explain his reasoning that led to his conclusions, such that his recommendation is given little weight here.

19. The Bradshaw report also found that T1 might fail at its stem defect. As a result, the tree had a high risk of causing damage to the Fells’ property but a low risk of causing injury to anyone. On p 9 Mr Bradshaw wrote (wording as is):

“Not all hollows are structurally unsound and can exist as critical nesting sites for birds and mammals. In this case, from the visual inspection identifying the excessive swelling of the cavity, it is concluded that the decaying cavity is likely a probable point of failure. Further structural testing identifying the extent of decay can be undertaken with the use of a Resistograph or Sonic Tomograph and will provide a conclusive result regarding the structural integrity of the tree.”

20. On p 10 Mr Bradshaw concluded:

“Further structural assessment of the cavity should be undertaken to accurately determine the extent of decay. In the absence of this work, the tree should be removed as soon as possible, retaining the habitat.”

21. Mr Bradshaw’s reasoning here seems to be: that visual assessment suggests the defect might be an issue; that without further testing, T1 should be removed; but further testing might show it does not need to be removed – otherwise there would be no reason to spend resources testing the tree. I accept Mr Bradshaw’s conclusion that further testing could provide relevant information for determining appropriate action, possibly avoiding removal of T1.

22. Ground-based assessments of stem defects that are well above ground level are inherently limited. Even closer visual assessments can be limited due to our inability to see the size of a hollow, to measure the thickness of structurally sound wood around a hollow, and to determine the extent of any decay within remaining wood and its impact on a stem’s ability to resist loading. Testing stem and branch wood with appropriate equipment can inform a tree assessor, taking some of the guesswork out of determining strength loss and the resulting failure likelihood. Sonic tomography gives a picture of the internal condition of a stem’s cross-section. In my experience, the results are reliable for determining overall condition and strength loss, even if there is some variation in accuracy at individual locations within the cross-section. On the other hand, resistance drilling provides accurate results for a single test site (a drill hole) but gaining a picture of the stems’ cross section using drilling requires several test sites around the stem. The orders made on 19 August 2021 sought further testing of the nature described here.

23. The Hartley report provided less information than the Court expected. Mr Hartley was assisted by Shaun Talent, who climbed the tree to access the stem cavity. Although tomography testing can be done by a climbing arborist, Mr Hartley suggested that sonic tomography was not done due to a lack of access for an aerial lift device. And, despite the Court’s orders, Mr Hartley wrote (p 2):

“Based on the visual inspection, questions were also raised about the need for testing and the risk associated with drilling. However, we were mindful of the court’s expectations. Consequently, we chose to limit the drilling to one point to reduce the risk associated with drilling and the spread of decay.”

24. On the same page, Mr Hartley explained that: “In the drilling process, the battery went flat, resulting in a peak so marked on the test results.”

25. Mr Talent drilled into wood behind the cavity. Mr Hartley wrote (p 3): “The results show 9 cm of solid wood followed by 9 cm of wood with reduced strength. Testing was stopped at this point, and a decision was made not to undertake further testing.”

26. Following the test result on p 3 of his report, Mr Hartley continued: “The Treecalc modelling suggests…”, without referencing the Treecalc model within his report. ‘Treecalc examples’ included in an appendix provide little assistance to the Court.

27. Following in Mr Scales’ footsteps, Mr Hartley applied the QTRA method for assessing the risk associated with stem failure of T1, but showed no background material or reasoning for the scores applied in the table on pp 5 and 6. Mr Hartley concluded the ‘Risk of Harm’ is less than 1 in 1,000,000. Mr Hartley suggested that the annualised value of risk is less than $1 per year (p 5), while the tree provides annual benefits greater than $2,800 (p 6). Not only did I find these conclusions less than convincing, they did not give the Court the answers sought. Mr Hartley has referred to numerous models and references for calculating strength loss, failure likelihood, tree benefits and risk, but all based on a single drill hole to a depth of 18 cm in a stem that is almost 80 cm in diameter. What he has not done is provide the Court with test results that might put the strength-loss models to work and in turn inform the Court.

28. Despite the Hartley report’s limitations, the Court now has the benefit of its closer inspection of the wound and cavity in T1’s stem. While I sought more data on the stem’s condition, I gain some comfort knowing that qualified arborists have inspected the cavity at close range and one of those arborists has recommended retention of the tree. If, as Mr Hartley suggested, the tree was indeed drilled where the intact wood sounded thinnest, then sufficient sound wood should remain to support the crown. As the tree is healthy, it has the ability to lay down further reaction wood around the cavity. Mr Fell submitted that cockatoos using the hollow are increasing its size by removing wood, bits of which can be seen on the ground beneath the tree in photographs. To my eye, and as reported by Mr Hartley, it appeared that these bits of wood were already affected by white rot. That is, the cockatoos had removed wood already weakened by fungal activity, so had not further weakened the tree’s stem.

29. Ms Brasier has now undertaken at least some testing of her tree. Given the opportunity to obtain further evidence after commencing these proceedings, Mr Fell undertook no testing, nor did he engage an arborist to prepare an expert report. To that extent, Mr Hartley’s evidence is uncontested, other than for the opinions of arborists who undertook ground-based assessments and whose reports were not prepared as expert evidence. I do not accept Mr Hartley’s assessment that the tree poses a risk of harm of less than 1 in 1,000,000. He has not provided sufficient reasoning in his report to demonstrate that this conclusion is realistic. However, I do accept that, on the available evidence, failure of T1’s stem is not likely within the near future, a period I regard as the next 12 months as per the principle at [14] in Yang v Scerri [2007] NSWLEC 592.

30. Dead branches and overextended branches above the Fells’ dwelling might fall in the near future and damage the roof. Considering that branches are most likely to hit the roof, injury is not likely.

31. Because I find damage is likely in the near future as a result of branches falling from T1, the Court can make orders for T1. Pruning can mitigate the risk of damage caused by falling branches. Before determining orders, I must consider matters at s 12 of the Trees Act, which I shall come to after discussing tree T2.

Tree T2

32. A branch that damaged the Fells’ roof, resulting in an insurance claim in 2020, came from T2.

33. Most of the arborists’ reports do not deal with T2. It is included (as Tree 7) in the 2015 Magus report, a pre-development report to assist the Fells’ development application for their current dwelling. Mr Magus described T2 as an 18-metre Angophora costata with good vigour. Despite describing it as 3 metres from the common boundary, with a symmetrical crown, he found 65–70% of the crown was overhanging the Fells’ original dwelling (p 17). Nevertheless, his photo on p 17 shows the tree’s crown extending well over the Fells’ dwelling. I find it difficult to rely on the inconsistent findings of the Magus report, as Mr Magus describes T2 variably as having a single stem at 1.4 metres above ground level (p 9), having a bifurcated stem at 1.4 metres above ground (p 16), and being bifurcated at ground level (p 26). Mr Magus did not identify any structural defects in T2, and recommended (p 26) only pruning for clearance to the Fells’ proposed building and to remove deadwood.

32. At question 16 of the application to the Court, Mr Fell wrote that he sought orders for T2 to be pruned:

“To prevent further future damage to my property and prevent injury to people. Refer to Annexure F of tree limbs recommended by Arborist (refer to Annexure E) to be cut to prevent injury to people and damage to property.”

35. Annexure E is a quote from Aura Tree Services to prune three branches overhanging the Fells’ roof from an Angophora on the neighbouring property. There is no evidence that the works were recommended by an arborist – the quote could be for works requested by Mr Fell.

36. Annexure F to Mr Fell’s application includes two photographs of T2, each marked with three lines showing the three large branches he wants removed. There is no evidence that the photos were marked up by an arborist.

37. Tree T2 has caused damage to the Fells’ property. On the adduced evidence, I am not satisfied that the three large branches indicated by Mr Fell require removal. Photos show deadwood and overextended branches above the Fells’ dwelling, some of which are likely to fall and damage the roof in the near future. The risk could be reasonably mitigated by reduction pruning and removal of deadwood.

Matters at s 12

38. I find both trees T1 and T2 are likely to cause damage to Mr Fell’s property in the near future. I have considered all matters at s 12 and discuss below those that are relevant.

The trees’ locations

39. Both trees are growing in suitable environments with sufficient space for root and crown development. Both trees are reasonably close to the common boundary shared by the parties. Both overhang the Fells’ dwelling.

Council consent

40. Northern Beaches Council’s consent would be required to remove the trees and for major pruning works. Pruning to remove up to 10% of a tree's crown within a 12-month period, and removing deadwood, are allowed without a permit.

Impacts of pruning

41. Both trees T1 and T2 would tolerate pruning to remove deadwood and to reduce their crowns above the Fells’ property, if done according to AS4373 Pruning of amenity trees. Pruning T2 as proposed by Mr Fell would remove a greater portion of the tree’s crown and would leave large wounds at their branch collars. While the tree’s useful life expectancy would not be significantly affected, that extent of pruning does not appear necessary.

The trees’ benefits

42. Both trees are indigenous to the area, forming part of the local ecological community. They can be seen from public areas, so they contribute to public amenity. The trees contribute significantly to Ms Brasier’s landscape and to the broader natural landscape. Removing either tree would have a significant impact on the landscape character of the respondent’s property and the neighbourhood. They deliver shading, cooling and other ecosystem services. They provide habitat for birds and other fauna, including most obviously the sulphur-crested cockatoos occupying the stem hollow in T1.

43. Ms Brasier expressed her appreciation of the trees as part of the natural environment, and submitted a petition signed by several local residents supporting the trees’ retention. The petition has little bearing on the outcome of this decision, but reflects community values regarding the natural environment. Mr Fell also expressed his appreciation of local native trees in general.

Actions or omissions of the parties

44. The Fells demolished an earlier dwelling on their property before building the dwelling in which they currently live. They located their existing dwelling beneath the trees’ crowns. They do not seek compensation for past damage. Mr Hill suggested in his report that the location of the Fells’ existing dwelling demonstrated their tolerance for any resulting risk. I do not accept that suggestion. There may be numerous factors leading to the Fells’ decision to locate their dwelling where it sits. Mr Fell has taken reasonable steps, described earlier in this judgment, in his efforts to persuade Ms Brasier to remove T1 and prune T2, whether or not the outcome being sought was reasonable. It seems to me that the Fells hold fears relating to the trees that are disproportionate to the risk posed by the trees. The Court can make orders to mitigate the risk, but those orders might not dispel the fears.

45. Ms Brasier has taken reasonable steps as the trees’ owner. She has lived at her property for many years and raised a family here. She submitted that she has always maintained her property responsibly. She engaged Aura Tree Services to assess trees on her property in 2015, 2017 and 2018, and then again in 2021 in response to these proceedings. She has avoided changes to the ground around the trees. She intends to continue regular inspections and maintenance of the trees. Considering this history and her intentions, I see no need to make orders for ongoing regular pruning.

Conclusion

46. Tree T2 has damaged the applicant’s property. Overextended branches and deadwood falling from both trees T1 and T2 are likely to cause damage to the Fells’ roof. Adduced evidence does not satisfy me that larger parts of these trees are likely to fail in the near future. Pruning ordered below can reasonably mitigate the risk.

Orders

47. Based on the foregoing, the Court orders:

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

2. Within 60 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 prune the two Angophora costata identified as T1 and T2 in the report of Kyle Hill dated 13 July 2021 as follows:

1. reduce overextended branches above the applicant’s property, reducing the trees’ crowns by up to 10% total crown mass;

2. remove deadwood greater than 30mm in diameter from the trees’ crowns above the applicant’s property.

3. Pruning works ordered in (2) must be done in accordance with AS 4373 Pruning of amenity trees and the 2016 Safe Work Australia Guide to managing risks of tree trimming and removal work.

4. The respondent is to give the applicant 2 days’ notice of the works.

5. The applicant is to allow all access necessary for the works to be completed during reasonable hours of the day.

6. The exhibits are returned other than A and B.

……………………………….

D Galwey

Acting Commissioner of the Court

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Decision last updated: 02 November 2021