Harris v Liu

[2022] NSWLEC 1466

Land and Environment Court

New South Wales

Medium Neutral Citation:

Harris v Liu [2022] NSWLEC 1466

Hearing dates:

26 August 2022

Date of orders:

26 August 2022

Decision date:

26 August 2022

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders that:

(1) The Pt 2A application is refused.

(2) The Pt 2 application is granted to the extent of the following orders.

(3) The Respondents are to engage and pay for a suitably qualified arborist (minimum AQF level 3) with all appropriate insurances to carry out the following works within 30 days of the date of these orders:

(a) remove Tree 1 to no more than 300 mm above ground level;

(b) prune Tree 2, if it is not removed, to reduce the length of branches above the Applicants’ property by reducing them to suitable lateral branches, removing no more than 20% live crown mass; and

(c) prune Tree 3 to reduce the length of branches above the Applicants’ property by reducing them to suitable lateral branches, removing no more than 20% live crown mass.

(4) All tree work is to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’ and AS 4373–2007 ‘Pruning of amenity trees’.

(5) The Respondents are to provide the Applicants with at least 2 days’ notice of the works.

(6) The Applicants are to provide any access required to complete the works during reasonable hours of the day.

(7) The application for compensation is refused.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – neighbouring trees – damage to property – whether a tree with toxic properties is likely to cause injury – consent already obtained to remove two of three trees – compensation – Pt 2A application – neighbouring trees – obstruction of sunlight – whether trees are planted to form a hedge

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 9, 10, 12, Pt 2A, ss 14A, 14B, 14E

Uniform Civil Procedure Rules 2005, rule 36.16(3B)

Cases Cited:

Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192

Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152

Wisdom v Payn [2011] NSWLEC 1012

Yang v Scerri [2007] NSWLEC 592

Texts Cited:

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

Standards Australia, AS 4373–2007 ‘Pruning of amenity trees’

Category:

Principal judgment

Parties:

Graham Harris (First Applicant)
Aida Harris (Second Applicant)
Yang Han Liu (First Respondent)
Tzeng Jwu-ing Liu (Second Respondent)

Representation:

Counsel:
G Harris (Self-represented) (First Applicant)
A Harris (Self-represented) (Second Applicant)
No appearance at onsite hearing (Respondents)
A Campbell (Agent at telephone hearing) (Respondents)

File Number(s):

2022/140730

Publication restriction:

No

Judgment

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

Background to the application

1. Graham and Aida Harris (the Applicants) have applied to the Court pursuant to both s 7 (Pt 2) and s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), seeking orders for the removal and pruning of trees on the neighbouring property belonging to Yang Han Liu and Tzeng Jwu-ing Liu (the Respondents).

2. Under their Pt 2 application, they seek removal of three trees: a cypress (Tree 1) and a jacaranda (Tree 2) that they say have damaged their pathway and stormwater pipes; and a silky oak (Tree 3) that they say is likely to cause injury or damage. They also seek compensation for damage to their stormwater pipe.

3. Under their Pt 2A application, the Harrises seek the removal or pruning of Trees 1–3 and some nearby shrubs that together obstruct sunlight to their property.

4. The parties have discussed the trees. The Respondents’ property manager applied to Ku-ring-gai Council (Council) to remove trees 1–3. Council consented to the removal of Tree 1 and Tree 2, but refused removal of Tree 3, instead consenting to some pruning of the silky oak. At the time of the onsite hearing, all three trees remained on the Respondents’ property.

The hearings

5. The principal hearing in these proceedings took place onsite, allowing the Court to inspect the trees, the Applicants’ property and the surrounding environment. The Respondents did not appear at the hearing. When the Respondents’ property manager was contacted at the hearing’s outset, they stated that the Respondents had no intention of attending. I heard the matter ex parte, with all observations made from within the Applicants’ property.

6. Although the Harrises’ compensation claim was not included in orders on their application form, it was included within their Form H ‘Tree Dispute Claim Details (Damage to Property or Injury to a Person)’. Following the site hearing, where orders were made, a further telephone hearing allowed the parties to be heard on the matter of compensation. Under rule 36.16(3B) of the Uniform Civil Procedure Rules 2005, the orders could be varied if necessary. The orders remain the same as those given at the site hearing, other than the addition of Order (7).

Application under Pt 2

Framework

7. As permitted by s 7 of the Trees Act, the Applicants have applied for orders to remedy or prevent damage to their property or to prevent injury to a person as a consequence of trees on adjoining land. The orders sought are those that the Court has the jurisdiction to make at s 9 of the Trees Act.

8. Orders can only be made if the Court is satisfied of certain matters at s 10 of the Trees Act.

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.

9. Before making orders, the Court must consider relevant matters at s 12 of the Trees Act.

12 Matters to be considered by Court

Before determining an application made under this Part, the Court is to consider the following matters:

(a) the location of the tree concerned in relation to the boundary of the land on which the tree is situated and any premises,

(b) whether interference with the tree would, in the absence of section 6 (3), require any consent or other authorisation under the Environmental Planning and Assessment Act 1979 or the Heritage Act 1977 and, if so, whether any such consent or authorisation has been obtained,

(b1) whether interference with the trees would, in the absence of section 25 (t) (Legislative exclusions) of the Native Vegetation Act 2003, require approval under that Act,

(b2) the impact any pruning (including the maintenance of the tree at a certain height, width or shape) would have on the tree,

(b3) any contribution of the tree to privacy, landscaping, garden design, heritage values or protection from the sun, wind, noise, smells or smoke or the amenity of the land on which it is situated,

(c) whether the tree has any historical, cultural, social or scientific value,

(d) any contribution of the tree to the local ecosystem and biodiversity,

(e) any contribution of the tree to the natural landscape and scenic value of the land on which it is situated or the locality concerned,

(f) the intrinsic value of the tree to public amenity,

(g) any impact of the tree on soil stability, the water table or other natural features of the land or locality concerned,

(h) if the applicant alleges that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property:

(i) anything, other than the tree, that has contributed, or is contributing, to any such damage or likelihood of damage, including any act or omission by the applicant and the impact of any trees owned by the applicant, and

(ii) any steps taken by the applicant or the owner of the land on which the tree is situated to prevent or rectify any such damage,

(i) if the applicant alleges that the tree concerned is likely to cause injury to any person:

(i) anything, other than the tree, that has contributed, or is contributing, to any such likelihood, including any act or omission by the applicant and the impact of any trees owned by the applicant, and

(ii) any steps taken by the applicant or the owner of the land on which the tree is situated to prevent any such injury,

(j) such other matters as the Court considers relevant in the circumstances of the case.

The Applicants made a reasonable effort

10. Discussions between the parties resulted in the Respondents applying for Council’s consent to remove the three trees. I am satisfied that the Applicants made a reasonable effort to reach agreement with the Respondents in this matter.

Tree 1

11. Beneath the concrete path that runs between the Harrises’ dwelling and the common boundary, the Harrises’ stormwater pipes became blocked, causing flooding in their property. A plumber was called and found tree roots in the pipe. The Harrises think the pipe might be the original earthenware pipe. To prevent further flooding, they installed a temporary PVC stormwater pipe above ground, against the side of their dwelling. The Harrises do not claim any compensation for expenses incurred for the temporary fix. Both Tree 1 and Tree 2 are adjacent to the common boundary, close to the area where the pipe was blocked. They seek removal of both trees.

12. The Court must consider each tree separately, and I can only make orders for any tree if I am satisfied that it has caused, is causing, or is likely in the near future to cause, damage to the Applicants’ property, or is likely to cause injury to a person. In this matter, I cannot be sure if roots of only one or both trees grew into the Harrises’ pipe; and if it is only one tree, I cannot be sure which tree. Even though it seems likely that roots in the pipe came from one of these trees, I cannot make orders on this basis. I have also considered the likelihood of further root ingress in the near future. The Harrises stated that the plumber found the pipe was badly damaged and could not be relined, but needs replacing. In its current state, it is unlikely that the trees will cause further damage in the near future. If it is replaced with a new PVC pipe, it is also unlikely that roots would block the new pipe in the near future. Despite the likelihood that roots are from one of these two trees, and the possibility that they are from both, I cannot make orders on this element of the Harrises’ application to remove both trees. I note, however, that the Respondent has agreed to, and has Council’s consent to, remove both Tree 1 and Tree 2.

13. Tree 1 is a cypress, approximately 16 metres tall with a stem diameter of approximately 50 cm. The base of Tree 1’s stem is against the common boundary fence. In line with the stem, the Harrises’ concrete path is cracked, with the crack running across the path from near the tree’s stem to their dwelling wall. I am satisfied, on the balance of probabilities, that this crack is caused by roots of the cypress. It is typical of cracking caused when a concrete path is pushed up by root growth. The tree is still growing and as its roots increase in girth, the extent of damage is likely to increase, so that although the cracking is relatively minor, and does not require repair at present, the likelihood of further and more significant damage warrants action to prevent this. At this proximity to the tree’s stem, cutting roots and installing a root barrier might leave the tree unstable, with an unacceptably high risk of windthrow failure. The tree is close to both the Applicants’ and Respondents’ dwellings. Given the circumstances, it is appropriate to make orders for Tree 1’s removal.

Tree 2

14. The jacaranda is approximately 12 metres tall with a stem diameter of approximately 50 cm. As per my findings regarding Tree 1, I cannot be satisfied that roots of the jacaranda have damaged or are likely to damage the Harrises’ stormwater pipe. There is no significant cracking of their concrete path near the jacaranda. There are no grounds for ordering the tree’s removal based on its root growth.

15. The jacaranda overhangs the Harrises’ dwelling. Some overextended branches are likely to fall within the near future. Although they are relatively small, the minor damage they might cause could be avoided by pruning the tree. The Respondents have apparently agreed to remove the jacaranda, and have Council’s consent to do so, but in case it is not removed orders will be made to prune Tree 2.

Tree 3

16. The silky oak is approximately 20 metres tall with a stem diameter of approximately 50 cm. It appears to be healthy and structurally sound and is a typical example of the species. The Applicants included photographs showing the remaining parts of branches that have otherwise broken and fallen from the tree. I inspected the tree and observed these branches during the onsite hearing. They are not large branches, and in my experience shedding of small branches is typical for this species. The likelihood of further branch failures could be minimised by pruning the tree. Such maintenance is a reasonable expectation considering the benefits provided by the tree: shade, cooling, habitat, amenity and so on.

17. The Harrises are also concerned that the silky oak’s roots might damage their nearby pipes, but at this stage there is no evidence that any root damage has occurred nor that it is likely to occur in the near future. The Harrises provided several documents that recommend certain tree species, including silky oaks, be planted at greater distances from buildings and pipes. The general nature of these documents might be useful for those designing a garden, but they do not demonstrate, to the degree of satisfaction required by s 10(2)(a) of the Trees Act, that this tree has damaged the Applicants’ property, nor that it is likely to do so in the near future, a period I regard as the next 12 months or so as per the principle in Yang v Scerri [2007] NSWLEC 592.

18. The Applicants provided material from several sources identifying the toxic properties of parts of silky oaks (Grevillea robusta). For instance, they provided a 2006 factsheet from the NSW Department of Primary Industries listing ‘poisonous trees’. Grevillea robusta is included in the list, with its poisonous parts identified as flowers, fruit, sap and sawdust, all of which can cause allergic reactions such as skin rashes. The Directions of the Court made on 21 June 2022 and provided to the parties includes the following note at Direction 6:

“Note: When an application is made for an order to prevent injury to any person and the “injury” is an illness, allergy or similar medical condition, specific supplementary directions [see Schedule B] will be made concerning evidence in such cases.”

19. It appears that the Applicants were not provided with supplementary directions from Schedule B. Those directions are copied here:

“Schedule B

Supplementary directions for an order to prevent injury to any person and the “injury” is an illness, allergy or similar medical condition.

1. Further to direction 6 of the principal directions in this matter, the applicant is to provide, by the close of business on ……………………………, any statement of medical or arboricultural evidence and any supporting medical or arboricultural peer reviewed literature relied upon in support of a claim that a tree which is the subject of the application is a “likely cause of injury to any person”;

2. Any expert evidence concerning matters contained in 1 above is to include acknowledgement that the expert has read and agrees to be bound by the Expert Witness Code of Conduct in Schedule 7 of the Uniform Civil Procedure Rules 2005.”

20. The Harrises explained that, even if they were given the supplementary directions, they would be unable to provide evidence of any injury, as nobody has been injured by the tree. While I acknowledge that parts of the tree might be toxic, the species is widely planted across Sydney and I am unaware of any cases of illness among the general population, other than some arborists experiencing skin rashes from the tree’s sawdust when removing the trees. This silky oak has grown next to the Harrises’ property for many years without causing health issues.

21. I find that removing the silky oak is unnecessary, but orders will be made for pruning the tree.

Compensation

22. The Harrises seek compensation for the cost of repairing their stormwater pipe. They obtained a quote from Platinum Pipe Relining for $15,378 to replace the pipe. Although the Court can make orders to remedy any damage caused by the trees, for two reasons no compensation will be ordered.

23. Firstly, as I have explained above, the Court cannot be satisfied of the origin of roots in the pipe. While the roots are likely to come from Tree 1 or Tree 2, there are other smaller trees along the Respondents’ side of the boundary. It is at least possible that roots in the pipe came from one of those trees.

24. Secondly, if not for the Trees Act, any damage caused by these trees would most likely fall under the tort of nuisance: see Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 at [54]. The Respondents were unaware that roots of their trees might be in the Applicants’ stormwater pipe until they were informed of the blockage and the flooding of the Applicants’ property, by which time the damage was done. Had I found that Tree 1 or Tree 2 caused damage to the pipe, I would need to consider the acts or omissions of the parties at s 12(h)(i) of the Trees Act. The Respondents have not knowingly caused or continued a nuisance, so no compensation will be ordered.

Pt 2A application

25. At s 14A, Pt 2A of the Trees Act only applies to certain trees.

14A Application of Part

(1) This Part applies only to groups of 2 or more trees that:

(a) are planted (whether in the ground or otherwise) so as to form a hedge, and

(b) rise to a height of at least 2.5 metres (above existing ground level).

(2) Despite section 4, this Part does not apply to trees situated on Crown land.

26. The Court must be satisfied of certain tests at s 14(E) before making any orders.

14E 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 trees are 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 14C.

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

(a) the trees concerned:

(i) are severely obstructing sunlight to a window of a dwelling situated on the applicant’s land, or

(ii) are severely obstructing a view from a dwelling situated on the applicant’s land, and

(b) the severity and nature of the obstruction is such that the applicant’s interest in having the obstruction removed, remedied or restrained outweighs any other matters that suggest the undesirability of disturbing or interfering with the trees by making an order under this Part.

27. I find that the trees are not planted so as to form a hedge and therefore Pt 2A of the Trees Act does not apply to these trees (s 14A(1)(a)). The trees are planted at irregular spacings; different species of varying heights make up the planting. They do not appear as a hedge. In Wisdom v Payn [2011] NSWLEC 1012, Moore SC (as his Honour then was) and Hewett AC found at [45]:

“… We are satisfied that the words forming a hedge mean that there must be a degree of regularity and arrangement, in a linear fashion, of the trees being considered. Whilst such an arrangement may be more than one tree deep and does not need to be in a perfectly straight line, the impression that is given by the planted arrangement of the trees must be one that, in an ordinary English language understanding of the word, would be perceived to be a hedge.”

28. Nor does the planting suggest that those who planted the trees intended to form a hedge, such an intention being required by the wording of s 14A(1)(a): see Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192 at [28]. The Harrises stated that the trees were clearly planted without an intention to plant a hedge. Pt 2A therefore does not apply to these trees, so the Pt 2A application is refused.

Orders

29. As a result of the foregoing, the Court orders that:

1. The Pt 2A application is refused.

2. The Pt 2 application is granted to the extent of the following orders.

3. The Respondents are to engage and pay for a suitably qualified arborist (minimum AQF level 3) with all appropriate insurances to carry out the following works within 30 days of the date of these orders:

1. remove Tree 1 to no more than 300 mm above ground level;

2. prune Tree 2, if it is not removed, to reduce the length of branches above the Applicants’ property by reducing them to suitable lateral branches, removing no more than 20% live crown mass; and

3. prune Tree 3 to reduce the length of branches above the Applicants’ property by reducing them to suitable lateral branches, removing no more than 20% live crown mass.

4. All tree work is to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’ and AS 4373–2007 ‘Pruning of amenity trees’.

5. The Respondents are to provide the Applicants with at least 2 days’ notice of the works.

6. The Applicants are to provide any access required to complete the works during reasonable hours of the day.

7. The application for compensation is refused.

……………………………….

D Galwey

Acting Commissioner of the Court

**********

Decision last updated: 06 September 2022