Joaquim v Adamson - [2009] NSWLEC 1312

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Joaquim v Adamson [2009] NSWLEC 1312

PARTIES:
APPLICANTS
J & J Joaquim
R$ESPONDENTS
J & J Adamson

FILE NUMBER(S): 20138 of 2009

CORAM: Moore SC - Fakes AC

KEY ISSUES: DISCRETION - EVIDENCE - JURISDICTION - NEIGHBOUR APPLICATION - TREES (NEIGHBOURS) :-
Poisoning of tree
Interference with roots of tree
Death of tree caused by applicant
Applicant to pay costs of removal

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 ss 9, 10, 12 and 16
Civil Procedure Act 2005 s 56(1)
Land and Environment Court Act 1979 s 38(2)
Uniform Civil Procedure Rules 2005

CASES CITED: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Barker v Kyriakides [2007] NSWLEC 292
Yang v Scerri [2007] NSWLEC 592
Robson v Leischke [2008] NSWLEC 152; (2008) 72 NSWLR 98; (2008) 159 LGERA 280
Horn & anor v Latter [2007] NSWLEC 744
Hinde v Anderson and anor [2009] NSWLEC 1148

DATES OF HEARING: 29 May and 30 June 2009

DATE OF JUDGMENT:
2 October 2009

LEGAL REPRESENTATIVES:
APPLICANTS
Dr B Caffrey, barrister
RESPONDENTS
In person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE SC
FAKES AC

2 October 2009

20138 of 2009 J & J Joaquim v J & J Adamson

JUDGMENT

Introduction

1 COMMISSIONERS: Mr and Mrs Joaquim live at 21 Turriell Bay Road, Lilli Pilli. Mr and Mrs Adamson live next door at 23 Turriell Bay Road. Mr and Mrs Adamson have a large number of trees on their property. Mr and Mrs Joaquim havemade an application pursuant to the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) seeking orders for removal of a number of these trees, two at the front of the Adamson property and six at the rear.

2 The most prominent of these trees is a Hills Fig tree located in close proximity to the dwelling on each of the Joaquim and Adamson properties. The Hills fig is dying, asymmetrically, with the portion closest to the Joaquim's property being dead or nearly so. The causes of the death of this tree are significant matters for consideration in these proceedings.

The inspection and subsequent court hearing

3 In order to understand some of what follows, it is necessary to set out a little of the procedural history in this matter. When this application first came before the Court, at a preliminary hearing on 24 April 2009, the applicants were represented by their barrister, Mr Caffrey, and the respondents appeared in person.

4 During the course of the preliminary hearing, as is the practice of the Court in these matters, the appropriate directions from the set of standard directions in tree dispute matters were made (the set of standard directions in tree dispute matters is publicly available on the Court’s Internet website) and copies were provided to the parties.

5 Particularly relevant to this decision, Standard Directions 5, 6 and 7 were made as this application included not merely an application for orders requiring interference with or removal of a number of trees on the respondents’ property but also an application for the respondents to pay the applicants compensation for claimed past damage to the applicants’ property. Accompanying the application was a timeline dated 26 February 2009 prepared by the applicants setting out the history of what they considered to be matters relevant in the proceedings.

6 These directions (5, 6 and 7) were in the following terms:

5. The applicant is to lodge with the Court and give a copy to the owner of the tree and to the council, by 4.30pm on 1/5, any further statements, reports, affidavits, photographs or any other documents upon which the applicant intends to rely;

(Note: When an application is made pursuant to s 10(2)(b) of the Act (the tree “ is likely to cause injury ”) and the “injury” is an illness, allergy or similar medical condition, specific supplementary directions will be made concerning evidence in such cases).

6. For compliance with Direction (5), for all claims for compensation for damage or claims for orders to rectify damage, the applicant is to provide details (including copies of any correspondence) of when and how the damage was brought to the attention of the owner of the tree (if this information has not been provided as part of the application).
7. The applicants’ documents are to detail the basis of any amount claimed for past damage (including all relevant receipts and/or invoices) and any quotations for proposed works which the applicant seeks that the Court orders be undertaken (whether such proposed works are to the applicants’ property or to the property where the tree is located);

7 In response to these directions, the applicants filed and served, by the date required in Direction 5, a variety of additional material, including in an amended version of the timeline noted in paragraph (5) above.

8 The respondents filed their written material, in reply, as directed, by 12 May.

General observations about the site inspection

9 As had been set down at the preliminary hearing, the matter proceeded to a hearing on site on 29 May. During the course of the on-site portion of the hearing, we examined all of the respondents’ relevant trees, from both sides of the fence between the parties’ properties. We were also requested to (and did) crawl under the applicants’ house in order to inspect the tree roots that were of concern to the applicants.

10 There are three particular matters concerning the on-site hearing that need to be noted, specifically, at this point. These are set out below.

Trees subject of consent orders

11 At the front of the properties, two trees that form part of the application, a privet and a camphor laurel, are growing close to the boundary but on the respondents’ property. Each of these trees is in close proximity to the power supply lines forming the electrical connection to the respondents’ house. In light of that proximity, we indicated to the respondents that we considered that those trees satisfied the jurisdictional test in s 10(2)(b) of the Trees Act – namely that they were a likely risk of injury to persons.

12 The respondents agreed with this preliminary assessment and indicated that they also agreed to consent orders requiring them to remove those two trees – as requested by the applicants.

The scope of the site inspections

13 Second, during the course of our inspection of each of the properties, we looked at each of the trees that are the subject of the application and we inspected all other matters and locations that we were asked to inspect by Mr Caffrey or by the respondents.

14 Specifically, we did not decline to inspect any location that we were requested to inspect and, as earlier noted, we crawled underneath the applicants’ house in order to inspect the matters concerning tree roots and the supporting piers and footings of the dwelling that were of concern to the applicants. We note that Mr Caffrey did not join us in this element of the inspection.

Adjourning to Court

15 Finally, at the conclusion of the inspection and what was said by Mr Caffrey, at that time, to be the completion of the applicants’ evidence, Mr Caffrey indicated that he wished to make a significant number of formal procedural objections to material contained in documents prepared by the respondents and filed and served by them.

16 As a consequence of this, we concluded that it would not be appropriate at an on-site hearing to deal with legal objections of that nature to the extent that Mr Caffrey foreshadowed them. As a consequence, we adjourned the matter to a further hearing to take place in court. That the hearing subsequently took place on 30 June.

Procedural matters during the Court hearing

17 At the commencement of the resumed hearing, Mr Caffrey sought to tender four new documents of which no notice had been given to the respondents. Each of these comprised fresh evidence in the proceedings. The basis upon which two of those documents were admitted and two of them, including potentially highly prejudicial material (as noted, no prior notice of which had been given to the respondents) were excluded in an interlocutory decision on that day. That decision was in the following terms [transcript of 30 June at page 9 line 12 to page 11 line 15]:

The preliminary hearing of this matter was held at Sutherland Court House on 24 April. The applicants were represented by Mr Caffrey, who appears for them this morning. A site inspection took place on 29 May, during the course of which a number of observations were made concerning both the presence of tree roots, from trees on the respondents’ property, travelling across the applicants’ property and evidence where at least one substantial root of one of the trees had been partially severed, on the applicants’ property.

At this hearing Mr Caffrey, who represented, as earlier noted, the applicants at the preliminary hearing and who also represented them during the course of the on site hearing, which has been adjourned until this morning, has sought today to tender four additional documents. It is important to note that on 24 April a number of directions were made, in writing, in accordance with various elements of the court’s standard directions given in tree dispute applications.

Relevantly for these proceedings standard directions 5, 6 and 7 were made, which required the applicant to lodge with the court and serve on the respondents all further documents upon which they relied by 4.30pm on 1 May. That included any matters of detail relating to both the claim and the application for removal of the trees and for the claims for compensation which have been made.

It is in that context that we turn to consider the four documents that are now provided. We do so, given that the material that is attached to the application, includes material concerning the use of plumbers and the like to deal with tree roots. There are two documents of before that are sought to be tendered this morning, that are relevant to that. The first is a letter dated 24 June 2009, from a Mr Grahame Wick and the second is a letter dated 20 June 2009 from Mr Carlson. Both of them are plumbers.

Both of them simply provide corroborative statements concerning the work that was undertaken on the sewers and their opinions about what roots may have entered the sewers. They are in minor detail comparatively speaking corroborative of material that is already in evidence, both from the site inspection and from the earlier documents that have been provided.

Although the applicants have been legally represented throughout, we have not been provided with any satisfactory explanation as to why these two documents, dated the 24th and 20 June respectively, were not served on the respondents, who are the neighbours of the applicants. Mr Caffrey, barrister, for the applicants has sought to tender them this morning. The Adamsons, as respondents, have seen the documents, all four of them, for the first time this morning. We are required to consider issues of procedural fairness and whether there is any prejudice to the Adamsons in permitting any of these documents to be provided.

With respect to the two documents from plumbers we are satisfied that as they are merely corroborative of material that has already been provided to the court that there is no prejudice to the Adamsons to admit them. So the letters from Messrs Carlson and Wick will be admitted as evidence in the applicants’ case.

The third document is an unsigned and unacknowledged note that purports to recount a conversation, which Mr Caffrey has informed us, is a conversation between Mr Joaquim and Mr Adamson, which is alleged to have taken place on 6th and 7th concerning incidents that are alleged to have taken place on 6th and 7 March 1999. No explanation is given as to why that count not have been provided as part of the material, if not in the original application, in the opportunity for supplementary material afforded by virtue of the directions that were given on 24 April. It is unsworn, unsigned and well out of time. That document is rejected and returned.

The final document is a significantly prejudicial one to the Adamsons. During the course of the site inspection we observed that the major tree in the vicinity of the two house, a fig tree, which had multiple leaders, was dying in at least part of its canopy structure approximate to the fence between the two properties. There were a number of holes which were located in the tree, on the applicants’ side of the trunks of the tree closest to the fence. There were no holes on the side of the tree close to the Adamson’s property.

Mr Caffrey has sought to tender this morning a letter dated 25 June 2009, some nearly four weeks after the original hearing. A document which has been provided to the Adamsons for the first time, slightly after 9 o’clock this morning, which contains a number of significantly potentially prejudicial hearsay statements.

Whilst we are not bound by the strict rules of evidence and can admit hearsay as evidence, if it is appropriate for us to do so, as we inform ourselves as we see fit, as we are permitted to do by the Land and Environment Court Act, this letter is one which contains a significant number of assertions concerning drilling of holes in various trees by an employee of Steve Cope Pest Control. It was provided to the Adamsons at ten past nine this morning. Mr Adamson has indicated that they are not in a position to respond to it.

It would be unreasonable, given the nature of the matters that were discussed during the site hearing, it would be unreasonable to permit it to be admitted now when first, the Adamsons have been given no notice of it. Second, Mr Madonis, who is the author of the letter, who is the neighbour of the Adamsons on the other side to the Joaquims, provided a written document in support of the application dated 23 February 2009, which makes no mention of any of these matters whatsoever.

18 During his closing submissions, Mr Caffrey made an application to re-open the evidence to permit Mr Joaquim to give further evidence, which evidence is discussed later, concerning holes in the Hills Fig tree that is part of the application under the Trees Act. This application to re-open was granted and Mr Joaquim’s additional evidence is discussed in more detail later in this decision.

19 Later in the course of his final submissions, Mr Caffrey made a further application to re-open the evidence to have Mr Joaquim give further evidence about when Mr and Mrs Joaquim said notice of their problems of tree roots in their sewer pipe had been communicated to the respondents. Leave to reopen further in this regard was refused.

20 We made that decision because of the express nature of Direction 6 that had been made, in the terms set out above, and which had been responded to by an amended timeline being filed and served by the applicants. The exchange and ruling concerning this application was as follows [transcript of 30 June at page 29 line 5 to page 32 line 21]:

SENIOR COMMISSIONER: Where do we find any evidence in any material that your clients have provided to us that demonstrates that there was any contact between your clients and the Adamsons about their sewer pipes prior to 18 December 2007? That question does not dispute what appears to be the uncontradicted written documentation from your clients that they have had problems with their sewer pipes for a number of years. Your clients, as they say in attachment 5, the penultimate paragraph to which you have taken us, in the second sentence, indicate that they have had difficulties with their sewer pipes for ten years or longer, which I interpolate would mean that they have had problems with their sewer pipes before they purchased the property, a proposition I found difficult to understand but one which is understandable in the stress of a letter like that to one’s neighbours. So I’m not suggesting we have any concerns about that. But where do we find any evidence that Mr and Mrs Adamson were put on notice prior to 18 December 2007?

CAFFREY: Well prior to 2005 there has been many contacts on a verbal level between my client and the Adamsons making complaint about the roots and the branches overhanging the house and the roots attacking the sewer pipes.

SENIOR COMMISSIONER: Where is the evidence of that?

CAFFREY: Well there’s no written evidence of complaining prior to that date, but I’m instructed very positively by both my clients that there was. Now I think I’ll have to ask leave to recall Mr Joaquim to give that evidence-in-chief orally, because otherwise a great injustice is about to be done, because he spent a lot of time from 1993 onwards, five years after he moved in, complaining to
Mr Adamson about the branches, the tree and the roots, and what he’s going to do about it.

SENIOR COMMISSIONER: Well, I’ll tell you this Mr Caffrey, we’re going to take the morning adjournment now. I assume that your clients’ papers include the directions that were made at the preliminary hearing on 24 April. Before you make that application to us to recall Mr Joaquim, I invite you to contemplate the terms of direction 6 that were made on 24 April, we’ll adjourn until 12 o’clock.

SHORT ADJOURNMENT

SENIOR COMMISSIONER: Mr Caffrey?

CAFFREY: Yes Commissioner I think we were at the point--

SENIOR COMMISSIONER: You were contemplating making an application and I’d drawn your attention to direction 6.

CAFFREY: Yes. I think - I make an application to recall Mr Joaquim for the purpose of showing, satisfying, in compliance with s 6 and 5 in that the damage to his property was brought clearly to the attention of the Adamsons long before 2007, 2006 or 7. Unfortunately we have no written documents to show this, it’s just - it’ll have to be proved by the evidence Mr Joaquim can give himself under oath.

SENIOR COMMISSIONER: Mr Caffrey you were present in court on 24 April when I made the directions which I signed and provided to you and to the respondents.

CAFFREY: That’s right.

SENIOR COMMISSIONER: That included direction 6.

CAFFREY: Yes I have it right here.

SENIOR COMMISSIONER: In response to that direction your clients provided a supplementary bundle of material to the court which was filed on 1 May 2009. That material includes at p 5, that is p 5 of the amended version of the application form, at para questions numbered 14 on p 5, p 5 at the top of the page. Do you have it?

CAFFREY: Yes.

SENIOR COMMISSIONER: “Have you had discussions or negotiations with the tree owner to try and resolve this matter?” Answer, “Yes. Attached notes and time lime”, an understandable typographic error, “between the two parties explains.” That commences with a date in 2007. There is an amended document which comprises the last three pages, which is dated 26 February 2009 which is the date of the original version, but it’s headed ‘amended version’, the last three pages of that bundle.

CAFFREY: The last three pages.

SENIOR COMMISSIONER: That bundle of papers, if you turn right to the end of that bundle of papers. Yes thank you Mr Joaquim, take him to the relevant pages. The last three pages are headed with blue highlighting, ‘amended version’. Is an amended version of a letter from your clients dated 26 February 2009 which is an amended version of a document attached to the application. It includes a time line. That document was provided in response to direction number 6. There is nothing in that document that details any earlier discussion or dates of discussions with Mr and Mrs Adamson. There was a very specific direction made, there’s been a document provided in response to it.

CAFFREY: Can you tell me what document we’re supposed to be looking at. I’m totally lost. You went through it at high speed.

SENIOR COMMISSIONER: Mr Caffrey, there is a bundle of documents filed on 1 May that is approximately 30 to 40 pages long. It includes a number of photographs and a number of amended versions of your clients’ application and supporting documents. The final three pages of that document as it was provided to the court. The final three pages of the document which is on the court’s file is a document headed with blue highlighting, ‘amended version’. It is a letter from your clients address. Right. You are now with me. Ms Joaquim has showed you the document. It’s headed ‘amended version’.

CAFFREY: Yes.

SENIOR COMMISSIONER: And it’s an amended version of a document dated 26 February, do you see that immediately below your clients’ address?

CAFFREY: Yes.

SENIOR COMMISSIONER: The original version was provided with the original application. This amended version has a number of highlighted changes to it.

CAFFREY: Cost, money amounts.

SENIOR COMMISSIONER: Indeed. It is the time line that is referred to at question 14 on p 5 of the amended application to which I took you a moment ago. The answer to question 14 says, “As attached notes and time lime”, an understandable spelling error, “and correspondence between the two parties explains”. The time line is the document at the rear of the bundle to which I have just taken you. That is the amended document supplied in response to an express direction given in plain English requiring the applicant to provide details including copies of any correspondence of when and how the damage was brought to the attention of the owner of the tree. That is direction 6 of the directions that were made on 24 April.

Unless you are able to provide us with some satisfactory reason why that direction was not complied with, it is not appropriate for us to permit evidence on that matter to be brought into being now. Indeed this hearing is continuing at some length because directions were not complied with. Had Mr and Mrs Adamson been legally represented, that might well have resulted in us referring the matter elsewhere for consideration of costs orders being made. As they are not legally represented, that question does not arise. But at the moment we are not going to permit additional evidence on that matter unless there is some satisfactory reason why an express direction which was made and to which some compliance was given, should be regarded as inadequate and your client should be permitted to give further evidence. Do you understand me?

CAFFREY: I think so. Well my clients instruct me that they have nothing in writing that they, prior to the dates mentioned in the bundle, which the earliest date was 2005, 2006? Well the earliest date appears to be 2007.
SENIOR COMMISSIONER: Mr Caffrey direction 6 was not, from its terms, confined to written material. The applicant was to provide details and it then says “(including copies of correspondence)”. Your clients have provided a time line, the original of which was attached to their application and comprises the unamended version of the letter of 26 February 2009 and in response to directions 5, 6 and 7 of the court’s standard directions in tree disputes, they provided a supplementary bundle, which included a number of documents including, as I have taken you to, an amended version of the letter of 26 February 2009, which is an amended time line as noted in their response to question 14 on p 5 of their amended application. Do you understand? It was not confined and their document is not confined, to letters. It includes, by necessary inference, their recollection of times and events which have taken place in the past, which are not necessarily supported by correspondence. They are entitled to do that and they have done that. We are not going to hear any further evidence from Mr or Mrs Joaquim as to what might or might not have been omitted from that document, because the time is well past, without any adequate reason for why any omissions occurred, for them to provide further evidence in response to direction number 6 of the directions of 24 April.

21 It is the practice of the Court, in all Trees Act matters, because of the very high proportion of self-represented parties, to provide directions that are written in plain English and to endeavour to ensure that all information is exchanged between the parties before the on-site hearing takes place.

22 These directions are given to ensure that the objectives set for the Court by s 56(1) of the Civil Procedure Act 2005 – “The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings” – are met.

23 In an instance such as this, where the applicants were represented by counsel at all stages in the proceedings, there is a particular responsibility for their legal representative to ensure that the parties for whom he is appearing are properly advised of the requirement to satisfy the procedural directions of the Court.

24 Under such circumstances, it is reasonable for us to expect competent advice to be given and a stricter standard of compliance than might otherwise be the case where parties are self-represented.

25 However, in addition, for Trees Act applications to the Court, to cater for the high level of self represented parties:

the preliminary hearings at which directions are given are of longer duration than would ordinarily be the case in other classes of the Court’s jurisdiction;

the directions are explained to the parties or their representatives;

the hearing process is also explained the parties or their representatives; and

the parties or their representatives are given the opportunity to ask questions of the presiding Commissioner to remove any uncertainties that might exist about the responsibilities arising out of the directions made in the particular proceedings.

26 In this case, as he has done in over two hundred Trees Act applications, Senior Commissioner Moore presided over the preliminary hearing at which the directions were given.

27 As a consequence, we are aware that the conventional process for such preliminary hearings did, in fact, take place on this occasion and an opportunity was provided both to Mr Caffrey and to the respondents to ask any questions they might have considered necessary to clarify the intent of the standard directions then being made.

28 In addition, there are significant elements in the documentary evidence – specifically the introductory material prior to the detailed list of dates and events in the applicants’ timeline dated 26 February 2009 – supporting the conclusion we have reached as to when and how the applicants communicated to the respondents that roots from the fig tree had entered the applicants’ sewer line.

Consideration of the issues

29 We turn now to consideration of the issues concerning the trees in this application (other than the two trees at the front of the respondents’ premises where there is agreement that there should be orders for their removal at the respondents’ expense and where we are satisfied, as earlier noted, that there is a proper jurisdictional basis for us to make those orders).

30 The relevant provisions of s 10(2)(a) and (b) of the Trees Act require that we be satisfied that one or more of four tests are met, with respect to each tree subject of an application, before we have jurisdiction to consider the application concerning that tree.

31 These tests are:

Has the tree caused damage to the applicants’ property?
Is the tree now causing damage to the applicants’ property?
Is the tree likely in the near future to cause damage to the applicants’ property?
Is the tree likely to cause injury to any person?

32 Only if one or more of these tests is satisfied, can we then move to consider the discretionary questions of:

Is the damage or risk sufficiently serious to warrant us making some order?
If so, what should we order?
Who should carry out those orders and how long should they have to complete what is ordered? and, finally,
Who should pay?

33 These discretionary questions lead us to consider relevant issues to which we are required to have regard by virtue of the provisions of s 12 of the Trees Act before turning to make any orders consistent with the broad powers under s 9 of this Act.

The Hills Fig

34 The fig tree located on the respondents’ property is a significant specimen of this tree type. During the course of the inspection of this tree, we observed that portion of this tree was in significant decline and was dying. We observed that the fig tree was dying asymmetrically and that that part of the tree closest to the applicants’ property being, if not dead, was close to being so. The elements of this tree closest to the respondents’ house appeared healthy.

35 A photograph tendered by Mr Caffrey, as part of Exhibit A - a group of photographs that had been taken by us during the course of the site view and provided to parties at the adjourned hearing, demonstrates the nature of this impact on the fig tree. It appears below:

36 Two other matters were observed during the course of our examination of the fig tree. First, on the applicants’ side of the fence, there had been significant damage to a major root of the tree – this being occasioned by an incomplete attempt to sever this root with some sharp instrument. Second, during the course of a closer inspection of the fig tree from the respondents’ property, we observed a number of round holes (approximately 10 mm in diameter) on the portion of the fig tree that was dying. We observed no holes of the nature described in the bark of the trunks of the fig tree that remain of good vigour. We discuss, in more detail later, the damage to the root and these holes, two of which are depicted in the photograph below (part of Exhibit A), one with a key inserted to show its depth:

37 After discovering these holes and having seen significant damage to a major root of the tree on the applicants’ on the side of the fence, we indicated to Mr Caffrey that, at an appropriate time, we would require him to address us on the question of whether or not there was a basis upon which we could be satisfied (to the necessary degree of comfortable satisfaction discussed by the High Court in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336) that the reason for the asymmetrical dying of the fig tree was caused by the actions of his clients.

38 We also asked the respondents to consider (and be prepared to address us on) the issue of whether

if we were to conclude that the dying elements of the fig tree should be removed because one of the jurisdictional preconditions had been met and the state of the tree was such that the dying element required removal; and

we were to conclude that the removal of that element of the fig tree would cause sufficient instability in the remaining live elements so that the fig tree would then constitute a likely risk of injury to the occupants of their house

would they wish to accept the risk and have us consider if we were prepared to leave the live element of the tree remaining or if they would wish us to order the removal of the entire fig tree.

39 When asked to respond to this question during the course of the adjourned hearing, the respondents indicated that, if we were satisfied that the dying elements of the fig tree should be removed as there was a likely risk of injury to the occupants of the applicants’ property and that the result of that removal, in our opinion, itself created a significant risk of injury to occupants of their property, they did not wish to accept that risk and would wish that any order for removal of the fig tree be for removal of the whole of the fig tree.

40 We turn, first, to the jurisdictional questions arising for consideration with respect to the dying elements of the fig tree. The matters that were raised by the applicants as warranting an order for the removal of the fig tree fell in two parts. The first arose from the depositing by the fig tree, over time, of leaf litter and twigs in their gutters causing blockages resulting in backing up of water, overflow into the walls and consequent internal damage to their property. We accept their evidence that this has taken place.

41 The second is their contention that there is a likely risk of injury as the fig tree is adjacent to the applicants’ house, because the adjacent part of the fig is dying (if not already dead) and because it is a substantial tree structure in close proximity to their dwelling.

42 In Barker v Kyriakides [2007] NSWLEC 292, the Court published a tree dispute principle concerning the responsibility of those living in urban environments who have the environmental and aesthetic benefits of trees in their vicinity. The tree dispute principle is in the following terms:

For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis. The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree.

43 In the present case, there are no exceptional circumstances that would cause us to set aside this principle. As well, if healthy, the tree would have been a significant element of the local treescape and warranting retentionAs a consequence, the failure of Mr and Mrs Joaquim to undertake what would be the reasonably expected levels of maintenance of their gutters is the cause of any damage to their house from the deposition of detritus from this tree in their gutters. Although this damage caused by gutter blockage satisfies the first of the jurisdictional tests in s 10(2)(a) of the Trees Act, as a matter of discretion, we are not prepared to make any orders based on damage caused by gutter blockages.

44 There is, in our assessment, a likely risk of injury to residents of the applicants’ house. The risk of injury arises because of the size and substantial nature of this element of the tree and the extent to which it is dying (if not already dead). If it were to fail and fall on the applicants’ property, it could cause a significant injury to persons inside the house.

45 Whilst we do not consider that the likelihood of this occurring is such that it would take place within the next 12 months or so, as discussed in the rule of thumb published by the Court in Yang v Scerri [2007] NSWLEC 592, so as to engage the third of the property damage tests in s 10(2)(a) of the Trees Act, we consider that the structure of the tree (primarily a two leader structure from about 1.5 m above the ground) and the extent to which the element closest to the applicants’ house is already almost dead (if not already dead) means that the likelihood of it failing, whilst not being in the near future, is such that the risk of injury is unacceptable when considered in the context of s 10(2)(b) of the Trees Act. One of the major roots is already partially severed. As a consequence, we have concluded that that dead portion of the tree requires removal.

46 We now turn to consider the consequences that this removal will have on the remainder of the tree. The removal of the dead portion of the tree will have two consequences. The first is that the structure of the tree will be significantly unbalanced with the overwhelming portion of the remainder of the structure being in the direction of the respondents’ house. Second, the canopy of the dead or dying elements – the portion of the tree that is to be removed – has already largely disappeared as part of the dying process. That canopy, in the past, has provided a sheltering effect for the portion that would remain if we were to order, solely, removal of the nearly dead portion.

47 We are satisfied that the opening of the canopy of the otherwise apparently healthy element of the tree (as a consequence of removal of the dying portion) and the resultant structural imbalance caused by removal of that portion will, on balance, lead to there being a likely risk of injury to occupants of the respondents’ house. We have so concluded for reasons and a timeframe similar to that set out above for the dead portions of the fig tree.

48 As a consequence, although a conclusion we have reached with considerable reluctance because of the significant nature of this tree, we have concluded that the whole of this tree must be removed.

49 Having concluded that the tree is required to be removed in its entirety, we now turn to the question of who should pay for the removal; being a removal that will be, on our understanding, quite a difficult and expensive task for an appropriately qualified arborist to undertake.

50 During the course of the written material provided by the respondents, a number of references are made to their suspicions that Mr Joaquim (or somebody on his behalf) had poisoned the fig tree.

51 If we were to be satisfied that this was the fundamental cause of the necessity to remove the tree, it would be appropriate to make an order that the cost of the removal of the tree be met by the person or persons who were responsible for the poisoning. This is a course that is available to us, as a matter of discretion, being a matter to be taken into account to as part of consideration pursuant to s 12(i)(i) of the Trees Act:

including any act or omission by the applicant

emphasis added

52 Such a decision would also be consistent with what was discussed by Preston CJ in Robson v Leischke [2008] NSWLEC 152; (2008) 72 NSWLR 98; (2008) 159 LGERA 280 at para 205 noting that this was the basis for the decision for such an order in Horn & anor v Latter [2007] NSWLEC 744. Horn, however, it should be noted, was a case in which the applicants in that case acknowledged, in their written statement, that they had poisoned roots of the tree.

53 We now turn to consider, specifically, whether we could be satisfied, on a Briginshaw basis, that the fig tree has been poisoned and that the poison that was applied by or on behalf of Mr Joaquim.

54 First, we deal with the general statements made by the respondents of their suspicions concerning Mr Joaquim. The respondents observed Mr Joaquim and/or his son (this not being material for these purposes) undertaking activities designed to sever a major root of the fig tree just inside the boundary of the Joaquims’ property and a matter of 400 mm or so from the main trunk base of the tree. However, there is no evidence that the respondents actually saw Mr Joaquim applying anything that could be construed as a poison to this point of the partially severed tree root. As a consequence, we pay no regard to the respondents’ suspicions as they do not have any direct personal, observational evidence of any such poisoning.

55 The respondents also, in their written material, referred to a number of arborists and other relevant professionals who have told the respondents that they considered that the tree had been poisoned. Except to the extent that documentary evidence may have been provided by such persons, a matter to which we will return, these persons are not identified and the precise terms of the conversations had not been recorded (as to the name of the person, the content and context of these conversations and the time and place these conversations took place).

56 The result of this is that the applicants were not afforded the opportunity to require the unidentified makers of those statements to attend for cross-examination about the basis upon which they formed such a conclusion. As a consequence, although we are not bound by the strict rules of evidence (vide s 38(2) of the Land and Environment Court Act 1979), we consider that it would be a denial of natural justice to the applicants to give any weight to such unidentified hearsay and we pay no regard to it.

57 However, the respondents have filed and served two documents that provide evidentiary foundations in support of a conclusion that the tree has been poisoned. The first of these is a letter from Mr Glastras, a contractor who trades under the business name Surroundscape Landscaping and Horticultural Services. In a letter, dated 28 December 2007, he said, inter alia, specifically referring to the fig tree (although incorrectly identifying it as a Port Jackson fig):

I found evidence that the tree in question has been subject to recent stress most likely from unnatural means. Signs are most consistent with having been recently poisoned. This tree has significant age and size and should be protected.

58 Second, the respondents commissioned a report from a consulting arborist, Mr Varley, who trades under the name of Allied Tree Consultancy. Relevantly to the fig tree, his report is in the following terms:

The tree exhibited a sudden dieback of over half the crowns foliage (associated with one stem) with symptoms consistent with poisoning via a herbicide. Roots extending into the adjacent lot had been recently severed at the fence line.

The existing symptoms are contrary to such a tenacious species, and no further symptoms of pathogen or insect attack exist, nor changes around the tree other than the severed roots.

The dieback of at least half the crown (one stem of the tree) that corresponded with the time that the excessive root severance had occurred appears to be permanent.

59 No notice was served on the respondents that either Mr Glastras or Mr Varley was required for cross-examination. As this material had been written prior to the directions given at the preliminary hearing, it was not subject to any direction to comply with the expert witness requirements of the Uniform Civil Procedure Rules 2005. It was also not prepared in response to the litigation. As a consequence, this evidence stands as both independent and uncontradicted opinion of each author. These opinions are matters to be taken into account in our consideration of evidence subsequently given by Mr Joaquim.

60 At this stage it is appropriate to make what we consider to be an important observation about the root severing attempt by Mr Joaquim which took place in late 2007. Mr and Mrs Joaquim had applied to Sutherland Shire Council (the council) for permission to remove the fig tree, amongst other trees, located on the respondents’ property. Permission was refused.

61 However, the council's approval pursuant to its Tree Preservation Order, was granted to the pruning of a number of branches and the installation of a root barrier (on the Joaquims’ property). The permission under the Tree Preservation Order was subject to a number of express conditions written in plain and unambiguous terms. The first two of these conditions were in the following terms:

62 No such consent was granted by the respondents and this condition, condition (a) is in absolute terms and was a necessary precondition to have been met prior to any interference with the roots of the fig tree.

63 Mr Caffrey submitted that the activity by Mr Joaquim was lawful because condition (b) “is more applicable” than condition (a). By implication, he submitted that the necessary precondition set by the council approval had been satisfied by satisfaction merely of condition (b). He put this in the following terms [transcript of 30 June at page 35 line 13 to line 26]:

CAFFREY: ………………………. My submission there is that council approved the pruning of overhanging branches and the installation of a root barrier. See attachment 1. And my client met the conditions (b) in attachment 1.

SENIOR COMMISSIONER: What do you say to us about condition (a) in attachment 1?

CAFFREY: Well obviously that didn’t take place.

SENIOR COMMISSIONER: Right, is it not a condition precedent from the face of that document, prior to the carrying out of any work?
CAFFREY: No. Subpara (b) is more applicable.

64 This is incorrect from the face of the council’s document concerning the root barrier, in our view. Whilst there is some ambiguity in the document, we are of the view that taking the document as a whole, reliance on condition (b) alone is permissible for the pruning of overhanging branches but compliance with condition (a) was necessary for the installation of the root barrier. Condition (b), in its express terms, applied only to branches – not to roots – and satisfaction of condition (b) does not provide any assistance with non-satisfaction of condition (a). Condition (a), set out above, we consider was a necessary, plain English and unfulfilled condition that was required to be fulfilled prior to the carrying out of any work on the roots of the fig tree.

65 In this context, we consider it appropriate to have regard to the fact that Mr Joaquim commenced attempting to sever the roots of the fig tree without the respondents’ consent and thus in breach of a necessary precondition of the council's Tree Preservation Order permission. We consider it reasonable to conclude that his action was contrary to the terms of the council's instruction and failed to have regard to those instructions.

66 As we have earlier observed, the tree is dying asymmetrically.

67 A significant root of the fig tree has been partially severed by the applicants. A significant number of holes are located on the applicants’ side of the portion of the fig tree that is nearly dead. The nature and spacing to the holes’ location together with the fact that, at least around some of the holes, there was no sub-bark disturbance, leads us to conclude that these holes, in their totality, are not consistent with what might be expected had they been caused by wood borers or some other form of insect attack on the fig tree. Although Mr Caffrey urged that we should reach such a conclusion, we are not inclined to do so. His submissions were as follows [transcript of 30 June at page 49 line 33 to page 50 line 45]:

CAFFREY: Good, thank you. A comment about these holes. Now, well, first of all, the roots of the fig tree are such that commonsense would dictate that the sewer lines of my client’s house, there’s no other tree in the area that could possibly have caused the damage, the roots coming under the fence and damaging his sewer pipes. There’s no other possible, reasonable explanation for that.

With these photographs, again the problem remains is that neither Mr Adamson nor any of his arborists and tree specialists, including the biggest one at the end, ever mentioned anything about holes and thirdly, it is common knowledge that borers make holes exactly like that, as easily as round and smooth as any drill could possibly do it and the problem with borers is that they go in and out, they just don’t go in and stay there and die; they come back out and they’re different size holes and apparently they’re similar to these holes, or different in size and the only point, in my respectful submission, to the fact that there’s borers in the area and they go after trees and they are showing signs of weakness and this could easily account for the holes. It’s certainly inconceivable that my client would have taken a long extension cord and hopped over a fence and drill holes only facing his way. If he were going to try and manufacture evidence, it seems to me he would have gone, had the brains to go around the other side and have the holes facing Mr Adamson’s house and there’s been no suggestion that my client’s a raving idiot or a maniac, that he would have done such a thing to incriminate himself, drill holes facing his house. The whole proposition is ridiculous. More likely and the borers did this and my submission also is that the arborists who actually did test for poison drilled one or more holes to see if there was poison inside and this would make a lot of sense because that’s how you would test for a poison, by drilling.

SENIOR COMMISSIONER: If it is your submission, Mr Caffrey, that there were only one or two holes of the nature shown on photographs 1 and 2, I should advise you that that is contrary to my express recollection of what was observed on site.

CAFFREY: I’m ready to agree with you, Commissioner. They weren’t - I’m not suggesting there’s only one or two holes. There were several holes and if you’ll notice that there are several holes and quite a few of them are all different sizes, which again points to the incident of borers, because if my client was using a drill he wouldn’t have sat on the side of a fence and changed bits or size of the drill but because they’re all different, it’s clearly, more clearly points to the fact that a borer or borers were there doing their duties of drilling holes, as well as there could easily be said that the arborist who tested for this poison like whose name I can’t pronounce could well have used different size bits and could well have drilled more than one hole, looking for and testing for poison and, of course, he didn’t find any, as you know.

68 We observe that these submissions include a number of assertions – particularly in the final paragraph immediately above – for which there was no evidentiary basis in these proceedings. They are also contrary to Commissioner Fakes’ professional experience. We have ignored these assertions.

69 As earlier noted, we granted leave to Mr Caffrey, although in the midst of his closing submissions, to re-open the evidence to permit Mr Joaquim give evidence concerning the holes. He denied drilling the holes or poisoning the fig tree using the holes. That evidence was in the following terms [transcript of 30 June at page 19 line 14 to page 20 line 28]:

Q. It’s been alleged by Mr Adamson in his submissions or his paperwork, his response to the application, that you have applied poison to the fig tree. Are you aware of that allegation in his--
A. (No verbal reply)

Q. Now, have you ever applied poison to any tree, specifically to the fig tree?
A. No.

Q. Do you have any poison in your house?
A. No.

Q. There’s also a matter of holes in the tree. Did you drill any holes in any of the trees on Mr Adamson’s lawn?
A. No.

Q. Yard?
A. No.

Q. Did you know about existing holes in the tree before the site inspection?
A. No.

Q. And was your first notice of holes in the tree, was that due to the Commissioner pointing it out to you at the time?
A. Yes.

Q. I show you these photographs submitted by the court.

SENIOR COMMISSIONER: I think more correctly provided to the parties at this stage. They’ve not been submitted. They’ve been provided to the parties. They are not yet in evidence. We have indicated we propose to invite that they be tendered, but they’re not in any sense submitted. Do you understand? They are neutral at the present time. However, if you want to ask Mr Joaquim questions about them you are entitled to do so and you can then choose whether you wish to tender them or not.

CAFFREY: Thank you, Commissioner.

SENIOR COMMISSIONER: Each or any of them, not--

CAFFREY: Pardon me?

SENIOR COMMISSIONER: Each or any of them. They are not on a take-it-or-leave-it basis as a single package.

PHOTOGRAPHS SHOWN TO THE WITNESS

CAFFREY

Q. Do you recognise any of those photographs, Mr Joaquim?
A. I only recognise them from the day the Commissioner came to investigate the trees. I’ve never seen them before.

Q. And do you see any of the holes in the tree in those photographs?
A. I can see holes in the trees, yes.

Q. And would you have drilled any of those holes?
A. No, not at all.

Q. Do you have facilities to be able to drill holes like ie a long extension cord running from your house to the fence?
A. No.

70 In addition, we have evidence from the respondents that they had a tissue sample taken from the fig tree and tested for glyphosphate, a common vegetation poison. However, they also stated that they did not test for other herbicides because of the expense involved.

71 Mr Caffrey submitted that we should not have regard to the independent evidence to which we have earlier adverted concerning the likely poisoning of this tree. The following exchange took place [transcript of 30 June at page 44 line 33 to page 45 line 23]:

CAFFREY: Thank you. Paragraph 3, page 15, continuing paragraph 3, “Around 22 December ’07 the ficus began to shed.” Again I’d ask if it be struck out. If this fellow Galosthros (as said), is he an arborist or just a landscaper and how did he inspect? A visual inspection? What evidence did he see that what poisoned and what poison did he suspect? Did he make any tests? No, he didn’t. A spontaneous death of mandarin tree is not relevant. Many things wrong with that letter of 22 December by Mr Glastros(as said), whatever his name is.

SENIOR COMMISSIONER: Did you, at any time, indicate to Mr and Mrs Adamson, after you received this document, that you required Mr Glastras for cross-examination?

CAFFREY: No, we didn’t receive it. The Adamson’s are saying that they received - sorry, that their ficus began to shed.

SENIOR COMMISSIONER: The letter that you take us to is attachment 2 from Mr Glastras, is attachment 2 to the bundle of documents filed on 12 May 2009 that you are taking us through. Is that correct?

CAFFREY: I didn’t follow that.

SENIOR COMMISSIONER: We are now at page 15 of a bundle of documents omitting the first two pages which you have not numbered and we are following your number of the document--

SENIOR COMMISSIONER: Yes. We are at page 15 which refers to a document which is attachment 2 to that bundle.

CAFFREY: Yes.

72 However, we consider, as we earlier noted, that this independent evidence stands unchallenged by any contradictory expert evidence provided by the applicants. All we have is the bald denials by Mr Joaquim.

73 We accept, on the basis of the holes which we have observed and for which there is no credible alternative explanation coupled with the independent evidence of the horticulturalist and of the arborist retained by the respondents to advise on the health of the tree, that, notwithstanding the denials of Mr Joaquim, this tree has been poisoned. This observation is also consistent with Commissioner Fakes’ professional experience and, with the more limited (but modestly extensive) experience of Senior Commissioner Moore in hearing tree dispute cases. We also consider that, given the respondents did not wish this tree to be removed and that Mr and Mrs Joaquim had had an application for its removal refused by the council a very short time prior to the tree’s symptoms first being independently examined on the half of the respondents with that examination leading to a poisoning conclusion, it is reasonable for us to conclude, on the balance of probabilities, that despite his denial, this tree was either poisoned by Mr Joaquim or by some other person on his behalf.

74 We have concluded that the otherwise inexplicable asymmetric dying of the fig tree has been caused either by:

The administration of poison to the fig tree by the applicants [whether via the holes we have observed in the trunk of the dying portion of the fig tree or via application to the partially severed fig tree root – either being possible – a matter which we do not need to determine];
The partial severing of the significant root by the applicants and by the administration of poison to the fig tree by the applicants; or
The partial severing of the major root by the applicants.

75 We consider it more likely than not that poisoning is the more probable cause of the fig dying. However, it is not necessary for us to determine whichever of these causal factors is correct as, on any construction of them, we are comfortably satisfied on the Briginshaw standard that the cause of the death of the element of the fig tree closer to the applicants’ property has been caused solely by actions undertaken by or on behalf of the applicants.

76 The necessary first consequences which follows from that conclusion is that the removal of the portion of the fig tree closest to the applicants’ house is made necessary solely as a consequence of some activity or combination of activities undertaken by the applicants.

77 The second consequence that necessarily flows is that the requirement for the removal of the remainder of the fig tree is, in turn, wholly necessary because of the actions of the applicants or persons acting on the applicants’ behalf.

78 It therefore follows that, in consideration of the causal matters that are contained in s 12(i)(i) of the Trees Act, the sole cause of the necessity to remove what would otherwise have been a healthy, significant and mature fig tree are actions by the applicants or some person acting on the applicants’ behalf.

79 For that reason, although we have concluded, for the reasons earlier enunciated, that the fig tree should be removed and we are of the view that we should order that that removal be undertaken by the respondents, we also have concluded that they should be reimbursed the totality of the cost removal of the fig tree by the applicants.

Fig tree roots in the Joaquim’s sewer

80 We are satisfied, from the evidence before us, that the earliest that we can be satisfied that the applicants raised the issue of fig roots in their sewer pipes was by letter dated 18 December 2007. There have been no plumbing expenses for the applicants since then until the hearing – likely to be because the applicants have killed the portion of the fig tree growing in the direction of their sewer pipes.

81 Although we accept, from our subfloor inspection of their house that roots from the fig tree may have, in the past, interfered with their sewer pipes and thus the first of the tests in s 10(2)(a) may have been satisfied, they have provided no opportunity for the respondents to rectify these matters before taking events into their own hands. We therefore refuse any claim for plumbing costs prior to notice being given to the respondents and there are no post notice plumbing costs requiring any order for reimbursement.

The Pine tree

82 We turn now to the question of the Pine tree that is leaning on the common boundary fence toward the rear of the properties. The extent to which the trunk of this tree is pressing on the fence can be seen from the photograph below:

83 The fact that a minor twisting of the fence has occurred at its top, although there is no significant other damage to the fence apart from the buckling of the metal and a minor displacement of the fence from its line, clearly satisfies the first of the tests under s 10(2)(a) of the Trees Act.

84 The applicants also submit that, because of leaning of this tree over the fence, it should be regarded as also satisfying s 10(2)(b) of the Trees Act as, they say, there is a likely risk of injury to persons using their backyard. This tree has no history of having shed branches in the past. We have carefully examined the points of attachment of this tree's branches, from the ground, and could see no defects in the structure of the tree. When we were on the respondents’ side of the fence, there was no indication of lifting of the root plate of this tree.

85 Mr Varley, the arborist to whose opinion concerning poisoning of the fig tree we have already adverted, was also commissioned by the respondents to provide a report on various trees that are the subject of this application. Although his report, dated 6 May 2009, does not contain any acknowledgement of the expert witness requirements of the Uniform Civil Procedure Rules 2005, Mr Caffrey made no objection to the admission of this document based on non-compliance with those requirements. As a consequence, this expert report forms part of the uncontradicted evidence in the proceedings.

86 Mr Varley reported that he did not detect any structural flaws in this tree. He gave it a Safe Useful Life Expectancy of between 15 and 40 years

87 We can see no basis, on the evidence of our own observations and on this arborist's report, to conclude that the test in s 10(2)(b) of the Trees Act is satisfied.

88 It is pertinent to note that a fear, no matter how honestly or genuinely held, is not a basis for ordering intervention with or removal of tree unless there is some factual basis upon which it is reasonable to conclude that the feared occurrence will, in fact, come to pass. In this instance, whilst we accept that there is an apprehension that there is a risk of the injury, we are satisfied that there is no evidentiary basis upon which we could conclude that there is, in fact, such a risk.

89 We now turn to whether or not the extent of the damage to the fence warrants any order for interference with or removal of this tree. We have no evidence on the age of the fence but the extent of the damage causes us to conclude that it has occurred over some period of time and in a slow and incremental fashion. The damage, in addition to being minor, is merely aesthetic and does not now (nor is likely in the future) to be functional.

90 The tree, in itself, is a mature and significant specimen without any apparent structural defects. As the damage is minor and the tree will become even more significant in the landscape of the respondents’ rear yard as a consequence of the order for removal of the fig tree, on balance, we do not consider that the damage to the fence is sufficient to warrant any order for interference with or removal of this tree. For completeness, we note that there is a plant growing on the tree but we are satisfied that this plant, in itself, is unlikely to have any significant immediate or longer-term impact on the tree.

91 Having reached that conclusion with respect to this tree, as noted in Hinde v Anderson and anor [2009] NSWLEC 1148, should circumstances change, a subsequent application concerning a tree that had already had a determination made about it could be made to the Court under the Trees Act in light of any changed circumstances. Such a position, obviously, applies to this tree.

The Kaffir Plum

92 With respect to the Kaffir Plum (the plum tree), it is, obviously, in serious decline. A branch from it fell on the fence and the applicants’ clothesline in June 2008 and another in July 2008. The first test in s 10(2)(a) is therefore satisfied. However, there had been no further branch failures from this tree between that time and the on-site hearing.

93 This tree is toward the rear boundary of the respondents’ property and at sufficient distance from the common side boundary shared with the applicants that if it were to fail, a failure we consider unlikely in the next 12 months or so, the target area within the applicants’ property, if the tree were to fall in that direction, is also close to the rear boundary of the applicants’ property and would also be adjacent to the fence with the respondents’ property.

94 However, in addition to not considering it likely that there would be whole tree failure of this tree within the next 12 months, if it were to fail, there is no rational basis upon which we could conclude that it would fall in the direction of the applicants’ yard if it did so. Although this tree is in serious decline (as Mr Varley noted), we could not see any branch junction indicating a further branch failure was likely.

95 We have no information about the use of the area in the property located immediately to the rear of the respondents’ property and, as a consequence, are not able to make any assessment as to whether any of the tests in s 10(2) of the Trees Act would be satisfied for this tree with respect to that property. In the rear yard of the respondents’ property, this tree is located in what appeared to be a comparatively untrafficked area of the garden and, if it were to fail in any direction within their property (other than directly towards the fence with the applicants’ property, would be unlikely to cause any injury to any person or damage to any property.

96 As a consequence, as we do not consider that this tree is likely in the near future and cause damage to the applicants’ property and because we do not consider that it is a likely risk of injury to any person, there is no jurisdictional basis upon which we could conclude we should order removal of this tree.

97 However, in reaching this conclusion, we note that, as recorded earlier, it will be open to the applicants to bring a further application if circumstances were to change that might lead to a conclusion differing from that which we have reached immediately above.

The small eucalypt

98 Immediately adjacent to the fig tree is a small eucalypt. With respect to the fate of this tree, we are satisfied its exposure to further wind influences as a consequence of the complete removal of the fig tree together with the fact that its proximity to the trunk of the fig tree risks unacceptable damage to this tree as a consequence of the removal of the fig tree. This risk causes us to conclude that we should order the removal of this tree as well.

99 However, that is not the end of the matter. As indicated, the primary reason why this tree requires removal is because of several factors directly attributable to the causes of and necessity for removal of the fig tree. This removal, as we have earlier held, is solely necessary because of the actions of the applicants. As the consequence, the removal of this eucalypt is also solely necessary as a consequence of the actions of the applicants. It therefore follows that the removal of this tree should also be at their expense.

The large eucalypt and damage to the applicants’ house

100 We now turn to the eucalypt whose branch, we are satisfied, for the short reasons that follow, has caused damage to the applicants’ house. The applicants say that a large branch has fallen from this tree and caused damage to their television aerial and a number of tiles on the roof of their house. They seek an order for removal of the tree and for compensation for the damage. The compensation sought for the damage is based on the loss of their no claim bonus on their household insurance policy. During the course of the inspection, we were shown a large branch on the respondents’ property adjacent to the fence in the vicinity of the area on the applicants’ house where the damage was occasioned. We accept from the photographic evidence of the roof and the documentary material provided concerning the repairs that have been undertaken – coupled with the location of the fallen branch – that the first test pursuant to s 10(2)(a) is satisfied thus engaging the jurisdiction of the Trees Act.

101 It is not possible to tell whether the branch that fell from the larger eucalypt some distance within the respondents property causing damage to the roof and television aerial of the applicants’ house was dead or dying at the time it separated from the tree. However, from our examination of this branch during the course of the site inspection, we consider it likely that the branch was identifiably dead at the time it separated from the tree.

102 Two matters arise as a consequence of this. First, we turn to consider whether any work should be ordered to the tree and, if so what. Mr Varley considers that this tree is in decline. However, he did not consider that it posed any further risk of damage or injury beyond the boundaries of the respondents’ property. We concur from our observations. Although our jurisdiction is engaged because of the past damage to the applicants’ house, the unlikelihood of future damage or injury beyond the boundaries of the respondents’ property causes us to assess merely the likelihood of injury to persons on the respondents’ property.

103 We accept there is some risk of this if dead wood is not removed from this tree. Therefore we consider that it would be prudent, for this tree, to order that all dead wood with a diameter greater than 30 mm at the point of attachment be removed because, by so doing, the risk of further failure by a dead branch will be appropriately minimised. This is an appropriate preventative measure which should be undertaken at the respondents’ expense as part of the prudent future management of this tree particularly in light of the fact that, as we propose to order removal of the Hills fig, this tree will have greater exposure to any wind stresses in the vicinity as its canopy will be much more open by removal of the protective effect of the fig.

104 With respect to compensation for the damage caused, as we have concluded that the branch was likely to have been dead at the time it fell, although the applicants had not put the respondents on specific notice of their concern about this tree prior to the event, we consider that proper management by the respondents of trees on their property should have led to the removal of this branch before it separated from the tree. We have therefore concluded that the loss of insurance no-claim bonus and the claim excess for rectification of this damage should be allowed to the applicants.

The Illawarra Flame tree

105 The final tree that is the subject of the application is an Illawarra Flame tree. This tree has a substantial amount of its structure covered by an ivy vine growing over it.

106 Although, in the longer term, the presence of the ivy may contribute to the death of the tree and, eventually, its failure, there is no indication, from our observation, that this is likely to occur in the near future. This tree has not caused any damage to the applicants’ property. There is, therefore, no jurisdictional basis upon which we could order interference with or removal of this tree.

Sale of the respondents’ property

107 We note that, since this decision was reserved, the respondents have advised the Court that they have sold their property. Until title is transferred, these orders will still bind the respondents.

108 After title is transferred, the new owners may become bound by the orders concerning the trees if the provisions of s 16(2) of the Trees Act are followed. The orders concerning direct payment of monies by the respondents to the applicants as compensation for damage to the applicants’ property will continue to bind the respondents notwithstanding the sale of their property.

Enforcement of orders

109 The orders we propose will create a responsibility on the respondents to carry out a number of works to trees. The orders will also require significant reimbursement by the applicants of much of the costs of carrying out those orders. Processes for enforcement of orders in tree dispute matters are discussed on the Court’s website in the Tree Dispute Practice Collection.

110 Although we do not have the power to order payment of interest on any unpaid amount, we observe that a power to order payment of such interest lies with any court that might be called upon to enforce payment pursuant to any order of this Court.

Conclusions

111 As the necessary consequence of that discussed earlier, we have concluded that there is an appropriate jurisdictional basis for us to agree to the consent orders for the removal of the two small trees at the front of the respondents’ property and for that removal to be at the respondents’ expense.

112 With respect to the contested issues, we have concluded that:

The state of health of the dying portion of the Hills Fig tree is such that we are satisfied that there is a likely risk of injury to residents of the applicants’ property if this portion of the Hills Fig tree is not removed;
Therefore, the Hills Fig tree, as to the portion of it that is dying and is closer to the applicants’ house should be removed;
As a consequence of the necessity to order removal of the dying portion of the Hills Fig tree closest to the applicants’ house, the remainder of the Hills Fig tree will be rendered sufficiently unstable to be a likely risk of injury to persons resident in the respondents’ house and, consequently, the remainder of the Hills Fig tree requires removal;
The asymmetrical dying of the Hills Fig tree would not have occurred, on the balance of probabilities, without the intervention of the applicants, by partially severing a major root of this tree and/or by poisoning this tree;
Because we have concluded that the actions of the applicants have required removal of the dying portion of the Hills Fig tree and, as a necessary consequence, removal of the remaining portion of the Hills Fig tree, the total cost of removal of the Hills Fig tree is to be borne by the applicants after the presentation to the respondents of a receipted account for the completion of the work of removal of this tree;
A small eucalypt, adjacent to the Hills Fig tree also requires to be removed as we cannot be satisfied that the removal of the Hills Fig tree can be carried out in a fashion that will not impact sufficiently adversely on this tree's integrity to require that this tree be removed. Because the removal of this tree is a necessary consequence of the move of the Hills Fig tree, removal of this tree should also be at the cost of the applicants on the same basis as the removal of the Hills Fig tree;
There is no appropriate basis to order interference with or removal of the Kaffir Plum;
Although the Pine tree is leaning on and has caused a minor displacement to the boundary fence between the properties thus giving rise to jurisdiction pursuant to s 10(2)(a) of the Trees Act, we are not satisfied that there was any likely risk of injury as we consider it unlikely that this tree will fail. As the damage to the fence is minor, we have concluded, as a matter of discretion, that although the Court's jurisdiction is engaged, no order should be made with respect to this tree; and
As the applicants’ property has been damaged by a dead branch falling from the second eucalypt on the respondents’ property under circumstances where we have concluded that prudent tree management would have avoided this, we are satisfied that we should order the removal of dead wood from this tree and require payment to the applicants of the amount of $250 as claimed;
As to the question of root damage to the sewer, we have concluded that the failure to notify the respondents earlier than the time identified from the evidence means there is no basis for any compensatory order and the possibility of future damage is to be removed by removal of the fig tree; and
Finally, any other aspects of the application should be refused.

113 It therefore follows that we need to make two distinct elements in the required orders to give effect to this decision. The first will be by consent to reflect the agreed position concerning the two small trees at the front of the respondents’ property. The second element of these orders is necessary to give effect to the matters which we have determined that are required in response to the application

Time for compliance

114 Because the orders we make will involve not merely significant work to be organised and undertaken by the respondents but also, significant expenditure by the applicants to reimburse the costs of the bulk of those works to the respondents within the comparatively short period we propose to allow for such reimbursement to take place (as we do not consider that the respondents should carry any significant monetary cost for actions that have been made necessary by the applicants conduct), we propose to allow a longer (than would ordinarily be the case) period of time for such works to be arranged.

115 In addition, we consider this appropriate because the scope of the works to the Hills Fig tree may render it necessary to take additional care given the proximity of this substantial tree to both houses.

116 As a consequence, we propose to order that the works to be carried out to the various trees on the respondents’ property are to be carried out by the end of February 2010. By allowing this period of time, the applicants will also have had sufficient time to make such arrangements as may be necessary for them to meet the substantial portion of the costs of the works to be undertaken.

117 As a consequence of this additional time period, we do not propose to allow a significant period of time between the service on the applicants of a receipted account for the portion of the works that are to be at their expense and the requirement that they reimburse the respondents for this.

118 In this context, we note that the respondents will need to ensure, as some of the works are to be undertaken at their expense, that any account furnished to them by the arborist carrying out the works is sufficiently precisely itemised to enable a clear identification of the costs of the removal of the Hills Fig tree and of the small eucalypt adjacent to it as the reimbursement order will be confined to those elements of the works.

119 The orders of the Court, by consent, are:

1. The Camphor Laurel at the front of the respondents’ property adjacent to the boundary with the applicants’ property is to be removed at the height of 100 mm above ground level and the stump poisoned; and
2. The Privet at the front of the respondents’ property adjacent to the boundary with the applicants’ property is to be removed at the height of 100 mm above ground level and the stump poisoned.

120 The further orders of the Court are:

3. The Hills Fig tree in the rear of the respondents’ property adjacent to the boundary with the applicants’ property is to be removed and the stump ground to 100 mm below ground level;
4. The small eucalypt immediately adjacent to the Hills Fig tree is to be removed and the stump ground to 100 mm below ground level;
5. Any dead wood greater than 30 mm in diameter at the point of attachment on the eucalypt located generally to the west of the Hills Fig tree (and from which eucalypt branches fell on the applicants’ property causing damage to the applicants’ roof and television antenna) is to be removed;
6. Organisation of the carrying out of all works in orders (1) to (5) is the responsibility of the respondents;
7. All work in orders (1) to (5) is to be carried out by an arborist with AQF level 3 qualifications and appropriate insurances;
8. All work in order (5) is to be carried out in accordance with Australian Standard 4373-2007
9. The applicants are to provide any necessary access to their property for the carrying out of any of the works in orders (1) to (5);
10. The applicants are to be given reasonable notice of any access being required to their property for purposes of carrying out work required by orders (1) to (5);
11. Any access to the applicants property for the purposes of carrying out works in orders (1) to (5) is to be between the hours of 7:30 AM and 5 PM Monday to Friday or 8.00-4.00 on Saturday;
12. The application with respect to the Kaffir Plum tree and the Pine tree in the rear yard of the respondents’ property is refused;
13. All work in orders (1), (2) and (5) is to be carried out at the respondents’ cost;
14. The cost of the work required in the orders (3) and (4) is to be reimbursed by the applicants to the respondents within 14 days of the service on the applicants of an itemised receipted account for the carrying out of those works;
15. The respondents are to pay the applicants, within 90 days of these orders, the sum of $295.44 as compensation as a consequence of damage to the roof and television aerial of the applicants’ property
16. Despite (15), if an itemised receipted account for the cost of the work required in the orders (3) and (4) is served on the applicants within 76 days of these orders, the applicants are to deduct the sum of $295.44 from the amount to be paid to the respondents pursuant to (14) in lieu of the requirement for the respondents to pay this sum to the applicants;
17. Liability for payment of any amounts pursuant to these orders is a joint and several liability of the parties required to make such payment;
18. All works required to be undertaken by orders (1) to (5) are to be completed by 28 February 2010;
19. Any remaining aspect of the application is refused; and
20. The exhibits are retained.
Tim Moore Judy Fakes
Senior Commissioner Acting Commissioner of the Court

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Citations

Joaquim v Adamson [2009] NSWLEC 1312

Most Recent Citation

Joaquim v Adamson (No 2) [2009] NSWLEC 1367

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Cases Cited

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Statutory Material Cited

4

Briginshaw v Briginshaw [1938] HCA 34

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CITATION:	Joaquim v Adamson [2009] NSWLEC 1312
PARTIES:	APPLICANTS J & J Joaquim R$ESPONDENTS J & J Adamson
FILE NUMBER(S):	20138 of 2009
CORAM:	Moore SC - Fakes AC
KEY ISSUES:	DISCRETION - EVIDENCE - JURISDICTION - NEIGHBOUR APPLICATION - TREES (NEIGHBOURS) :- Poisoning of tree Interference with roots of tree Death of tree caused by applicant Applicant to pay costs of removal
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006 ss 9, 10, 12 and 16 Civil Procedure Act 2005 s 56(1) Land and Environment Court Act 1979 s 38(2) Uniform Civil Procedure Rules 2005
CASES CITED:	Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Barker v Kyriakides [2007] NSWLEC 292 Yang v Scerri [2007] NSWLEC 592 Robson v Leischke [2008] NSWLEC 152; (2008) 72 NSWLR 98; (2008) 159 LGERA 280 Horn & anor v Latter [2007] NSWLEC 744 Hinde v Anderson and anor [2009] NSWLEC 1148
DATES OF HEARING:	29 May and 30 June 2009
DATE OF JUDGMENT:	2 October 2009
LEGAL REPRESENTATIVES:	APPLICANTS Dr B Caffrey, barrister RESPONDENTS In person