Haigh v Dr Rothwell
[2009] NSWLEC 1319
•26 August 2009
Land and Environment Court
of New South Wales
CITATION: Haigh v Dr Rothwell [2009] NSWLEC 1319 PARTIES: APPLICANT
RESPONDENT
Garnet and Christine Haigh
Dr Sharyn RothwellFILE NUMBER(S): 20441 of 2009 CORAM: Murrell C - Thyer AC KEY ISSUES: TREES (NEIGHBOURS) :- Removal of the tree LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 DATES OF HEARING: 26 August 2009 EX TEMPORE JUDGMENT DATE: 26 August 2009 LEGAL REPRESENTATIVES: APPLICANT
Mr Hudspeth (solicitor)RESPONDENT
Dr S Rothwell (litigant in person)
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Murrell C and
Thyer AC
26 August 2009
JUDGMENT20441 of 2009 Garnet and Christine Haigh v Dr Sharyn Rothwell
1 COMMISSIONERS: A mature Sydney Blue Gum (the tree) is growing about midway across the rear boundary of 170 Bridge Road, Glebe (the property) about 3 m from the common boundary of the adjoining property to the west. The tree is about 26 m tall with a crown spread of about 22 m which overhangs many properties. The tree is said to be about 60 years old. It is visible from many properties and the surrounding streets.
2 The respondent Dr Rothwell is the owner of 170 Bridge Road, Glebe. The property is currently rented and has been rented for the past 23 years. Dr Rothwell was represented at the hearing by Mr Hudspeth, a solicitor with Garland Hawthorne Brahe. A tree assessment report was provided by the respondent dated August 2009, prepared by Mr De Abreu who is an AQF level 5 arborist. Mr De Abreu attended the hearing.
3 The applicant, Mr and Mrs Haigh are the owners of 172 Bridge Road, Glebe the adjoining property to the west. They made an application under the Trees (Disputes Between Neighbours) Act 2006 (the Act) to rectify and prevent property damage, and to prevent risk of injury by the tree. They seek orders for removal of the tree. They have provided an arboricultural assessment report on the tree, dated 23 May 2009, prepared by Ms Mackenzie who is an AQF level 5 arborist.
4 Three members of the City of Sydney arboriculture team attended the hearing as observers. Ms Sweeney, the City Arborist was able to assist the Court by explaining the City’s approach to some tree management issues.
5 We observed the location of the tree, the dividing fence between the properties and the line of the boundary of the rear lane. We find that the tree is a “tree” within the meaning of that term in s 3(1) of the Act, and the trunk of the tree is entirely on Dr Rothwell’s property, meeting s 4(3) and s 7 of the Act. As a consequence this is an application that the Court may determine.
6 When assessing an application under the Act, the Court must be satisfied that one or more of the four tests in s 10(2) (a) and (b) of the Act are met by the tree before making an order regarding that tree. These tests are:
- Has the tree caused damage to the applicant's property on the land?
Is the tree now causing damage to the applicant's property on the land?
Is the tree likely in the near future to cause damage to the applicant's property on the land?
Is the tree likely to cause injury to any person?
7 Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of:
- Is the damage or risk sufficiently serious to warrant the Court intervening?
If so, what should the Court order?
Who should pay to carry out those orders?
8 Further, before determining an application, the Court is to consider the matters in s 12 of the Act.
The tree
9 The tree appears to be generally as described in the two arboricultural reports. Those reports are in agreement that the tree is in good health and there is no sign of dieback which might indicate poor or reduced vigour, or decline associated with old age. Both reports also note that there is some minor deadwood in the crown, and that the tree may have been “topped” in the past. Both reports recommend pruning of deadwood, a variety of pruning of live branches, and further aerial and internal inspections.
10 We observed a dead, upright branch stub, with damaged bark and borer damage on the adjoining live trunk, above the junction of the major scaffold branches, and some staining of the bark and bulging of the trunk in the area below the junction of the major scaffold branches. In this regard, Mr De Abreu’s report states:
- The evidence of previously being topped (pruned) does not represent any immediate concerns, as it appears to be stable and has good wound wood development and no obvious decay symptoms were found.
11 However, his recommendations include additional assessment by tomograph testing or other non-invasive method to determine if decay is present in the area of the topping and first order scaffold branch junctions. At the hearing he strongly recommended that further testing.
Branch failures
12 The Haighs claim that the tree has begun dropping live branches in the last five years. They say one live branch about 40 mm diameter dropped into their backyard in March-April 2009. Their photographs show that a live branch about 120 mm diameter dropped into Dr Rothwell’s backyard in February 2008. They also say that about one live branch with diameter 40 mm or smaller has fallen each year for the last five years. They are not aware of the weather conditions at the time those live branch failures. At the hearing Mr De Abreu suggested the live branch failures might be due to drought stress on the tree in the last five years.
13 The Haighs also claim that dead branches have fallen from the tree. A statutory declaration by Ms Galvin states that she was in the Haigh’s backyard on 4 January 2009 when a dead branch fell from the tree onto the laundry roof and a piece that broke off that, about 3 m long and 50 mm thick would have hit her if Mr Haigh had not deflected it. One of the Haigh’s photographs show a dead branch about 1.2 m long and 30 mm diameter that speared through a plastic chair in their backyard.
Damage
14 We are satisfied that a falling dead branch has caused damage to a chair in the Haigh’s backyard, and that dead branches are likely to fall and cause damage to their property in the near future, thus meeting the first and third tests in s 10(2)(a) of the Act. As a consequence the Court has power to make such orders as it thinks fit in accordance with s 9 of the Act.
15 We are not satisfied on the basis of the one larger live branch that fell in February 2008, that the tree will drop a live branch that will damage the Haigh’s property in the near future, that being a period of about twelve months from now.
Injury
16 We are satisfied that a falling dead branch was likely to have caused injury but for Mr Haigh’s intervention in January 2009, and that injury from falling dead branches is likely in the future, thus meeting the test in s 10(2)(b) of the Act. As a consequence the Court has power to make such orders as it thinks fit in accordance with s 9 of the Act.
17 We accept that the tree began to drop live branches about five years ago, but only one of those branches, in February 2008, was large enough to be likely to cause injury. Also, we find that the fact the tree has dropped one live branch large enough to cause injury, is not sufficient evidence that the tree will drop similar or larger live branches in the foreseeable future. However, we accept Mr De Abreu’s concerns regarding possible decay in the area of the junctions of the main scaffold branches with the trunk, and find that internal investigation of that area should be carried out.
s 12 Considerations
18 Addressing the relevant matters in s 12 of the Act:
- (a) Location of the tree in relation to the boundary and any premises.
- This is a very large tree located in the rear yard of the property, and due to the small land size of the properties in the area, the tree overhangs about 10 nearby properties.
- The tree is protected by the Sydney City Council Tree Preservation Order. In response to an application to remove the tree, the City Council advised that the application would be considered after the report of an aerial inspection of the tree was submitted. Such report has not been submitted to the City Council.
- No evidence has been provided that the tree has historical, cultural or scientific value. It is not known who planted the tree, and the property has been tenanted for more than 20 years.
- While no specific evidence has been provided that the tree makes a substantial contribution to the local ecosystem and biodiversity, we assume that it would provide food and shelter to various native and introduced animals, insects and birds.
- The tree is visible from surrounding streets, and is probably the largest tree within a 200 m radius of the property. The overhead framework of branches, and filtered light through the canopy creates a natural landscape feature and contributes to the neighbourhood character.
- The tree provides a high level of public amenity as an individually visible attractive tree, and as part of the “urban forest”. We are aware that in this case however, lack of maintenance has allowed dead wood to fall causing damage and possible injury to neighbours, and that falling live branches have created a fear of the tree for nearby residents, and a reduction to the Haigh’s in the amenity of their backyard.
- Conclusion
19 On the basis of the evidence we have determined that the tree should not be removed as we are not satisfied the tree presents a danger with respect to falling live branches. However, we make orders for the pruning of dead wood and we will order the pruning of dead wood on an annual basis.
20 Discussion with the City Arborist at the hearing on Council policy for dangerous trees provides for trees to be removed when evidence of a pattern of falling branches can be shown to be a danger, and investigation and management of the tree cannot adequately control the danger.
21 We accept that internal testing of certain parts of the tree should be carried out as recommended by Dr Rothwell’s arborist, to identify any structural problems, with a copy of the report to be given to the Haighs.
22 The Orders of the Court will not prohibit applications to the City Council for pruning or removal of the tree, nor carrying out of that work in accordance will valid consent of the City council.
Orders
23 The application is upheld in part and the Court makes the following Orders in respect of the property known as 170 Bridge Road, Glebe:
- 1. The tree is to be retained.
2. All deadwood with a diameter greater than 20 mm shall be pruned and removed from the crown of the tree by 31 October 2009, by an AQF Level 3 arborist;
3 Beginning in 2010, all deadwood with a diameter greater than 20 mm shall be pruned and removed from the crown of the tree each year during July or August, by an AQF Level 3 arborist;
4. The Court note the recommendation of the respondent’s arborist that, the tree shall be investigated in the area of the first order scaffold branch junctions and the dead stub of the topped branch, by Tomograph or other suitable non invasive method, by a suitably trained operator of that equipment. Such a report and findings shall be prepared by 31 October 2009, by an AQF Level 5 arborist, and a copy given to the Haighs by 15 November 2009;
5. The above inspections, reports and work carried out on the tree shall be at Dr Rothwell’s cost;
6. All climbing, investigation and work on the tree shall be done in accordance with the Australian Standard AS 4373-2007 Pruning of Amenity Trees , and the NSW WorkCover Code of Practice for the Amenity Tree Industry (1998);
7. The Haighs shall grant access over their property to carry out the ordered investigations and work on the tree;
8. The ordered work shall take place at reasonable times and on reasonable notice to The Haighs.
___________________
- Jan Murrell
Commissioner of the Court
- ___________________
Peter Thyer
Acting Commissioner of the Court
- The formal orders may be obtained from the Court’s registry upon payment of a fee. Details are available on the Court’s web site at
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