Gauci v Vaughan

[2023] NSWLEC 1594

Land and Environment Court

New South Wales

Medium Neutral Citation:

Gauci v Vaughan [2023] NSWLEC 1594

Hearing dates:

18 July 2023

Date of orders:

11 October 2023

Decision date:

11 October 2023

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

See orders at [37].

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – damage caused by neighbouring trees – risk of damage and injury – whether tree removal is required – whether the boundary fence is functional – orders for tree pruning and fence repair

Legislation Cited:

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

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292

Yang v Scerri [2007] NSWLEC 592

Texts Cited:

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

Standards Australia, AS4373-2007 Pruning of amenity trees

Category:

Principal judgment

Parties:

Andrew James Gauci (Applicant)
Dayle Joan Vaughan (Respondent)

Representation:

Counsel:
A Gauci (Self-represented) (Applicant)
D Vaughan (Self-represented) (Respondent)

File Number(s):

2023/148094

Publication restriction:

Nil

Judgment

Background

1. COMMISSIONER: Andrew Gauci (the applicant), of Seven Hills in western Sydney, has applied to the Court seeking orders relating to four trees growing on the neighbouring property of Dayle Vaughan (the respondent). Pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), Mr Gauci seeks the following orders (as copied from the application):

1. The respondent, permit access to property to inspect four trees by Arborist and applicant. The respondent provides contact telephone number and email address for the applicant to make arrangement to inspect trees on reasonable notice.

2. The respondent, at her expense, remove four trees to ground level, stump grind and poison roots. The respondent provides the applicant with at least 14 days’ notice of proposed date of these works. Compliance of works to be overseen by Blacktown City Council (Council) or undertaken by Council if the respondent fails to comply with this order.

3. Following the tree removal works, the respondent engages a contractor, with suitable qualifications and insurance, to rectify damage caused to common boundary fence by the tree.

4. The respondent pays the applicant $1,505.00 for itemised costs for the applicant's costs incurred making this application.

5. Alternatively, in the event that the Court fails to grant the tree removal orders sought, the applicant seeks orders for compensation payable by the respondent, for damages including diminution in value to the applicant's property in the sum of $150,000.00

2. The hearing took place onsite, allowing the Court to inspect the trees and both properties.

3. In support of his application, and the orders that he seeks, Mr Gauci relies upon the report of Trevor Hawkeswood, who inspected the four trees from within Mr Gauci’s property on 7 February 2023.

4. Before proceeding to the relevant matters at hand, I note here that, as in many tree disputes, the parties have a long history of disagreement. In this case, the parties both refer to a fence dispute involving Mr Gauci’s father, now deceased, going back before 2000. Unless that history demonstrates that the actions or omissions of the applicant or the respondent have contributed to the present situation where it lies within the jurisdiction of the Trees Act, or provides other information to be considered within framework of the Trees Act, that history is largely irrelevant. Certainly, in the historic descriptions filed with the Court, which I have read in full, I found little of consequence that would influence the need for, or the nature of, any orders to be made in these proceedings.

Framework for this decision

5. The Trees Act, at s 10, sets out jurisdictional tests that must be satisfied before the Court can make orders.

10 Matters of which Court must be satisfied before making an order

  (1) The Court must not make an order under this Part unless it is satisfied:

(a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, and

(b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 8.

  (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.

Reasonable effort

6. Mr Gauci submitted that he wrote to Ms Vaughan on 6 occasions during January and February 2023. He has tried to speak to her in person. I am satisfied that the applicant made a reasonable effort to reach agreement with the respondent.

Tree 1

Evidence and submissions

7. In the form accompanying his application (Form H in Exhibit A), Mr Gauci referred to Tree 1 as Eucalyptus crebra, which demonstrates his reliance on Dr Hawkeswood’s report, wherein the tree is also identified as Eucalyptus crebra. Mr Gauci referred to dead branches that fall from the tree into his back garden, in the area occupied by a clothesline, where they are likely to seriously injure his elderly mother, for whom he is a carer. Mr Gauci saved dead branches, which he showed to the Court during the onsite hearing.

8. In his report (Exhibit B), Dr Hawkeswood identified Tree 1 as Eucalyptus crebra (Narrow-leaved Ironbark). He included photos of dead branches that had fallen from the tree, some of which had evidence of borer activity. His report lacks any discussion, but on page 11 he concluded:

“Tree 1, Eucalyptus crebra (Myrtaceae) has had severe dieback from water stress and numerous dead branches from borers and fungi (Figs. 1,2,4). The tree continually loses branches which fall into the subject property of [the applicant’s property]. The tree is also leaning and the lean worsens by about 2 degrees every year. Eventually the tree will fail and fall into the subject property and is therefore a major safety concern.”

9. Ms Vaughan disputes Dr Hawkeswood’s findings. She submitted that Tree 1 is a subspecies of Eucalyptus sideroxylon (Red Ironbark). She spoke with Blacktown City Council’s arborist, who, she submitted, found no need to interfere with the tree. She referred to this as a ‘safety report’, although as Mr Gauci perhaps correctly argued, Council’s role is to assess applications for tree pruning or removal, and to approve or reject them based on their assessment criteria.

Findings

10. Tree 1 is a Eucalyptus sideroxylon (Red Ironbark) growing in Ms Vaughan’s back garden. It is approximately 18 metres tall, its stem approximately 60 cm in diameter. Tree 1 leans to the northeast, its crown extending over the applicant’s backyard. It is in fair condition, with some dead branches present throughout its crown.

11. In some respects, Dr Hawkeswood’s evidence could be regarded as uncontested, being the only expert evidence presented to the Court. However, as a qualified and experienced arborist myself, employed by the Court to bring my expertise to these disputes, I find Dr Hawkeswood’s evidence fundamentally flawed. To begin with, he has misidentified the tree, which is Eucalyptus sideroxylon, as Ms Vaughan, untrained in arboriculture, correctly identified. Were the species not so readily identifiable, this might be an understandable error. Dr Hawkeswood referred to borers in fallen branches, but did not discuss how they might affect those branches – many borers have little, if any, impact on the structural integrity of tree stems and branches. He referred to fungi (see above at [8]) in his conclusions, without any mention of fungi related to Tree 1 in his report prior to this. He concluded that Tree 1’s lean is increasing by 2 degrees each year; however, it seems he only inspected the tree once, and there is no explained reasoning that leads to this conclusion, so I see no grounds for giving this any weight. Somewhat surprisingly, in a report making conclusions based on ‘safety’, Dr Hawkeswood has not applied, or at least not demonstrated, the use of any of the widely accepted tree risk assessment frameworks. For these reasons, I find Dr Hawkeswood’s conclusions for Tree 1 to be of little assistance, and therefore rely on my own observations made during the onsite hearing.

12. Although it is not locally indigenous, Tree 1 is a common garden planting and is suited to the environment in which it is growing. Dieback of low-order branches in the tree’s crown indicates some environmental stress, most likely drought. The presence of borers may exacerbate this stress. Dead branches are likely to fall in the near future, a period I regard as the next 12 months, as per the principle in Yang v Scerri [2007] NSWLEC 592. Overextended branches in the tree’s outer crown, farthest from the tree’s base, also appear likely to fail in the near future.

13. The tree leans to the northeast so that most of its canopy overhangs the applicant’s rear garden. I inspected the tree from all sides, noting that its stem and primary branches appeared to be without any significant defects that would affect their structural integrity. The tree’s root collar appeared undisturbed. There were no signs indicating that the tree’s lean has increased in recent years. The likelihood that the tree’s stem or roots will fail in the foreseeable future is improbable.

14. Mr Gauci does not allege that the tree has caused damage. His concern is the risk of injury to his mother or others in his garden, or damage to his property. I accept that people might spend time beneath the tree’s crown, where branches are likely to fall. I therefore find that Tree 1 is likely to cause personal injury.

15. I have considered the matters at s 12 of the Trees Act in regard to Tree 1. The tree is close to the common boundary and overhangs the applicant’s property. Council’s consent would be required to prune or remove the tree. The tree contributes to local amenity, and to local environmental values, providing habitat for native fauna. It provides other ecosystem services, including shading and cooling, pollutant filtering and carbon sequestration. Neither the applicant nor the respondent have contributed to the likelihood of the tree causing damage or injury.

16. Because the likelihood of branch failure could be minimised by pruning the tree, removing Tree 1 is disproportionate to the risk, and unnecessary. Orders will be made for pruning Tree 1, to remove deadwood and to reduce overextended branches.

Tree 2

Evidence and submissions

17. In his application, Mr Gauci claimed that Tree 2, the Silky Oak, is likely to fall onto his house, with a high risk of causing serious injury to, or death of, his mother. He stated that branches touch the roof and debris blocks his gutters, which has led to water damage inside his dwelling. He stated that the tree’s stem and roots have displaced the dividing fence along the common boundary between his dwelling and Ms Vaughan’s. He submitted that the fence damage lowers his property value, although he expressed no intention of selling his property any time soon.

18. Dr Hawkeswood’s conclusions regarding Tree 2, on p 11 of his report, were:

“Tree 2, Grevillea robusta (Proteaceae) has widespread borer and possibly termite infections throughout the tree (Figs. 7,8), resulting in numerous dead branches and hanger branches. This tree also loses branches continually which fall on the roof of the house at [the applicant’s property] and the tree overhangs the house as well (Fig. 5). The tree appears to be decaying in places on the trunk and major branches (Fig. 7). This tree also produces poisonous flowers during spring and early summer. Overall, this tree poses threats and hazards to persons living or visiting [the applicant’s property].”

19. Following his conclusions, Dr Hawkeswood’s report has no recommendations. Table 1 on p 4 of his report shows ‘Removal’ in the ‘Proposal’ column for Tree 2 (as it does for all four trees) but it is not clear if this describes the applicant’s proposal or the author’s.

20. Ms Vaughan submitted that the Silky Oak is healthy and structurally sound. She submitted that damage to the dividing fence is minor and that the fence remains fully functional. She submitted that debris from the tree is a natural consequence of living near trees, and that she receives the same amount of debris on her property. She thought the tree was unlikely to fall over.

Findings

21. Tree 2 is a Grevillea robusta (Silky Oak), approximately 20 metres tall with two stems around 40 cm and 30 cm in diameter. The basal union between the two stems appears sound. The crown holds some deadwood, but the tree is otherwise healthy and structurally sound. Some low branches are close to, and touching, the applicant’s roof.

22. I observed the Silky Oak to be a fairly typical example of the species, in good health. It is suited to its growing environment and is a common garden planting. The tree has two stems from ground level, with the union between these stems appearing structurally sound. The tree’s root collar appears undisturbed. The stems show no signs of significant decay and are without any other major defects affecting their structural integrity.

23. Photographs in Dr Hawkeswood’s report show signs of borer activity in fallen dead branches, but he presented no evidence of termite activity in the tree. The photo at Figure 7 of his report shows the site of an occluded branch collar from a branch that fell or was removed some time ago. A small amount of exudate can be seen in the photo, but there are no signs of extensive decay. I find that the likelihood of Tree 2 failing completely in the near future is improbable.

24. The foliage of several low branches rests on the applicant’s roof. These may cause minor damage to the tiles during strong winds. Small dead branches are present in the tree’s canopy, although I would not say they are ‘numerous’ as Dr Hawkeswood described. They are likely to fall in the near future and may damage the applicant’s roof tiles, but are unlikely to cause injury to anyone in this part of the applicant’s property.

25. Debris from the tree, including dead foliage, flowers, fruit and twigs, has fallen onto the applicant’s roof and collected in his gutters. Debris has also collected on the ground between his dwelling and the fence. The applicant presented no evidence of damage caused by debris, although he alleged it had led to water damage in his dwelling. Even if I accept this, and if I also accept that blocked gutters might lead to further water damage in the near future, I would refrain from make any orders on this basis. As per the principle established in Barker v Kyriakides [2007] NSWLEC 292, reasonable property maintenance is to be expected in treed environments. There is nothing extraordinary about this situation that would lead me to deviate from this principle.

26. Tree 2 has displaced a section of the Colourbond fence on the common boundary. As Ms Vaughan submitted, the extent of damage is relatively minor and the fence is still functional. Any impact to property values is unlikely to be realised soon. Nevertheless, the fence could be repaired so that it is close to its original alignment without damaging the tree.

27. I find that Tree 2 has damaged the boundary fence, and several of its branches are likely to damage the applicant’s roof in the near future.

28. Having considered the matters at s 12 of the Trees Act, I find that Tree 2 is close to the common boundary, with a small portion of its stem at ground level now on the applicant’s property. Nevertheless, it is principally on the respondent’s property and belongs to her. Tree 2 overhangs the applicant’s dwelling. It contributes to public amenity and environmental values and provides ecosystem services, shading and cooling both the applicant’s and the respondent’s dwellings. Neither party’s actions have contributed to the tree’s risk of causing damage.

29. Removing Tree 2 would be disproportionate to the damage it has caused to the fence, or that it might cause to the roof. Pruning will be ordered to mitigate the risk of damage to the applicant’s dwelling, and further orders will be made for minor repairs to the fence.

Trees 3 and 4

Evidence and submissions

30. Mr Gauci stated in his application that Trees 3 and 4 are likely to drop branches onto his service wire, which might cause a fire.

31. Dr Hawkeswood concluded of these two trees:

“Trees 3 and 4 are mature specimens of Robinia pseudoacacia (Fabaceae) an introduced plant species from North America. Tree 3 appears to be experiencing dieback of crown (Fig. 11) and has numerous dead branches. One branch stub shows past borer activity in this region (Fig. 10). This tree will also drop branches and may be in declining health.

Tree 4, has severe decay at the base (Fig. 13) which will simply get worse and the tree will eventually fail. The tree is also suffering from borer infestations with many dead branches, including one hanger branch (Fig. 12). Thus this tree also has safety issues.”

32. Ms Vaughan pointed out that both trees are healthy and that their branches are not touching, nor close to, the applicant’s service wires.

Findings

33. Trees 3 and 4 are Robinia pseudoacacia (Honey Locust) near the front of Ms Vaughan’s dwelling. To some extent, Dr Hawkeswood’s observations are accurate: both trees have some dead branches, borers are present in some of those branches, and the base of Tree 4 has some decay. However, his conclusions seem exaggerated – the trees’ health does not appear to be declining, and the decay at the base of Tree 4 is unlikely to result in the tree’s failure in the near future.

34. I accept that dead branches are likely to fall from both trees in the near future, possibly damaging the applicant’s service wire.

35. Both trees are close to the common boundary. They contribute to public amenity and provide some ecosystem services. Neither party has contributed to the risk of these trees causing damage. Having considered the matters at s 12 of the Trees Act, I find that removing these trees would be disproportionate to the risk they pose. Pruning the trees to remove deadwood would minimise the risk of branch failures causing damage.

Conclusions

36. According to s 9(1) of the Trees Act, the Court may make “such orders as it thinks fit to remedy, restrain or prevent damage to property, or to prevent injury to any person, as a consequence of the tree the subject of the application concerned.” The orders Mr Gauci seeks are unnecessary for addressing damage caused, or damage and injury likely to be caused, by the trees in his application. Directions made at an earlier hearing allowed Mr Gauci to arrange access to Ms Vaughan’s property for his expert (Direction 10), but he did not take this opportunity. As I have explained above, removal of any of the four trees is unnecessary for avoiding damage or injury; pruning the four trees will mitigate the risk. It is reasonable for the respondent to repair the fence where it is damaged by Tree 2. As is usual in these proceedings, costs of tree pruning and fence repairs ordered below fall to the respondent. It is usual for parties in tree dispute proceedings to each bear any costs they incur in preparing for the hearing. However, should Mr Gauci wish to pursue an order for costs, he will need to file a Notice of Motion to be heard by a Judge or Registrar of this Court. The application lacks any grounds for making Mr Gauci’s final proposed order for ‘damages’ including diminution in property value.

Orders

37. The Court orders:

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

2. The respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3), with all appropriate insurances, to carry out the following works within 60 days of the date of these orders:

1. prune Trees 1–4 to remove all deadwood greater than 25 mm in diameter;

1. prune Tree 1 to reduce the length of branches extending farthest over the applicant’s property (see photo in Annexure A); and

2. prune Tree 2 to provide at least 1.5 metre clearance between the applicant’s dwelling and all branches and foliage of Tree 2.

3. The works in (2) are to be done in accordance with AS4373-2007 ‘Pruning of amenity trees’ and the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.

4. The respondent is to engage and pay for a suitably experienced and insured fencing contractor to carry out the following works within 90 days of the date of these orders:

1. repair and realign the two panels of boundary fence displaced by Tree 2 as much as possible without damaging any part of Tree 2 above or below ground.

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

6. The applicant is to allow all access required for completion of the works in orders (2) and (4) during reasonable hours of the day.

……………………………….

D Galwey

Acting Commissioner of the Court

Annexure A (934065, pdf)

Decision last updated: 13 October 2023