Hepworth v Walker

[2014] NSWLEC 1248

Land and Environment Court

New South Wales

Medium Neutral Citation:

Hepworth & anor v Walker [2014] NSWLEC 1248

Hearing dates:

2 December 2014

Decision date:

02 December 2014

Jurisdiction:

Class 2

Before:

Fakes C

Decision:

Application upheld

Tree removal ordered

Catchwords:

TREES [NEIGHBOURS] Damage to property; injury; apportioning of costs

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006
Rural Fires Act 1997

Cases Cited:

Black v Johnson (No 2) [2007] NSWLEC 513

Category:

Principal judgment

Parties:

Mr P and Mrs K Hepworth (Applicants)
Mrs G Walker (Respondent)

Representation:

Applicants: P & K Hepworth (Litigants in person)
Respondent: G & L Walker (Litigants in person)

File Number(s):

20665 of 2014

Judgment

1. COMMISSIONER: Both parties in this matter have resided on their Hornsby Heights properties since the early 1970s.

1. The applicants have applied to the Court for orders seeking the removal of three Eucalyptus grandis (Flooded Gum) on the basis of actual damage and injury caused by falling branches from the trees as well as the potential for further damage or injury.

1. The application is made under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006(the Act).

1. The respondents do not oppose the removal of the trees.

1. The key jurisdictional test in applications made under Part 2 of the Act 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. This must be applied to each of the trees.

1. The trees are three remaining healthy, early mature specimens of Flooded Gum planted by the respondent in the mid 1970's shortly after the applicants' dwelling was completed in 1974. The trees were planted to reduce the glare from the applicants' new roof.

1. The trees are growing in a relatively confined small terrace at the base of a steep sandstone escarpment that drops below the respondent's property. The trees are located on the northern, rear boundary of the respondent's property. The applicants' property is at the base of this escarpment.

1. In 1988 a large sandstone floater was dislodged from the escarpment. This threatened the safety of the applicants' dwelling and necessitated some excavation at the base of the escarpment including the area immediately adjoining the trees.

1. In 1994 the applicants built a small studio on the excavated area below the trees. While there is a timber retaining wall along part of the excavated embankment, the area behind the studio and closest to the trees, is not retained.

1. In 2008 during a storm, a green branch fell from one of the respondent's trees onto the applicants' roof. A claim on insurance was made. The respondent's husband maintains that the branch came from another Flooded Gum that was removed with permission from Hornsby Council in 2010. The trees were reportedly dead-wooded in 2008 and again in 2010.

1. The application claim form also records instances of the falling of dead wood from the trees that resulted in minor damage to the applicants' property as well as injury to one of the applicants. A number of photographs support the applicants' claim.

1. Apart from the failure of branches, given the position in which the trees are growing, the applicants are concerned about the possibility of whole tree failure.

1. The applicants engaged JK Geotechnics to prepare a 'Geotechnical Assessment' of the trees. Mr Nicholas Smith, Associate Geotechnical Engineer prepared the report dated 23 July 2014 (included in Exhibit A).

1. Mr Smith notes the colluvial nature of the soil and the jointing of the sandstone. He notes the unknown nature of the interface between the roots and the bedrock and considers that whilst the trees currently appear to be stable, from a geotechnical point of view, and applying a qualitative risk assessment, the trees pose an unacceptable risk to life and property and should be removed.

1. The applicants also engaged an arborist, Ms Louise Bennett, to prepare a report on the trees. Ms Bennett inspected the trees and reviewed the Geotechnical report.

1. For the reasons outlined in her report (included in Exhibit A) Ms Bennett also recommends the removal of the trees.

1. The respondent engaged Mr Russell Kingdom, an arborist, to inspect the trees and review Ms Bennett's and Mr Smith's reports. Mr Kingdom considers the detrimental impact on the trees' root zones as a consequence of the excavation that occurred in 1988. In his opinion the excavation has compromised the long term viability and stability of the trees and he agrees that the trees should be removed.

1. On the evidence and with the arboricultural expertise I bring to the Court, I find that while the trees are healthy and do not pose an immediate risk of failure, the area in which they are growing is very constrained and the trees' stability has been compromised by the excavation of the applicants' land. There is no practical way of improving or extending the area available for future root growth.

1. On the basis of the evidence I am satisfied that s 10(2) is met for each of the trees. As the Court's jurisdiction is engaged, I can consider the parties' agreed position that the trees should be removed. In doing so, a number of discretionary matters under s 12 must be considered.

1. The trees are growing very close to the common boundary between the parties' properties. As the trees are not locally indigenous species, they are exempt from Hornsby Council's Tree Preservation Order. They could also be removed in accordance with the 10/50 Vegetation Clearing Code of Practice under s 100Q of the Rural Fires Act 1997. The trees provide shade and amenity to the respondent's property.

1. Relevantly, the trees were present and reasonably well-established when the site was excavated in 1988. The trees would have been larger again when the applicants elected to construct the studio immediately beneath and beside the trees.

1. The Court has published a Tree Dispute Principle in Black v Johnson (No 2) [2007] NSWLEC 513 that considers the issue of whether the tree was there first. In summary, the fact that a tree was planted before a structure was built beneath it, and s 10(2) is satisfied, does not impact on whether an order should be made for any interference with it, but it is a relevant consideration in determining who should pay for the cost of carrying out any orders the Court may make.

1. The parties were given time to consider what contribution, if any, each should make to the cost of removing the trees. The parties agreed that each should contribute 50%. I have no reason to order otherwise.

1. Given the role of the roots in stabilising the embankment, it was agreed that the trees should not be ground out but be removed to about 300mm above ground level and the stumps poisoned to prevent coppicing. It is noted that the work may necessitate the use of a crane and that the contractor may need to undertake some of the work from the applicants' property.

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

(1)   The application to remove the trees is upheld.

(2)   Within 14 days of the date of this judgment, the parties are to obtain and exchange up to 2 quotes each from an experienced AQF level 3 arborist with an appropriate level of insurance cover to remove the trees to a height of no more than 300mm above ground level and to poison the stumps. Should there be no agreement as to the choice of contractor; the cheapest quote is to be selected.

(3)   The respondent is to engage the contractor and pay for the works in (2).

(4)   The work is to be carried out in accordance with the WorkCover NSW Code of Practice.

(5)   Both parties are to provide access on reasonable notice for the purpose of quoting and for the safe and efficient carrying out of the work.

(6)   The works in (2) are to be completed within 90 days of the date of this judgment.

(7)   Within 21 days of the receipt of a tax invoice for the completed work the applicants are to reimburse the respondent 50% of the cost of the agreed quote.

__________________________

Judy Fakes

Commissioner of the Court

Decision last updated: 02 December 2014