Kounavis v Roux; Hickin v Roux

[2021] NSWLEC 1646

Land and Environment Court

New South Wales

Medium Neutral Citation:

Kounavis v Roux; Hickin v Roux [2021] NSWLEC 1646

Hearing dates:

18 August 2021

Date of orders:

26 October 2021

Decision date:

26 October 2021

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

Proceedings 2021/125018

See orders at [20]

Proceedings 2021/125156

See orders at [21]

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – risk of damage and injury – three trees – two applications from neighbouring property owners – council consent for tree removal already granted – dispute over property access for tree removal – whether access via applicant’s property is necessary

Legislation Cited:

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

Category:

Principal judgment

Parties:

Proceedings 2021/125018
Maria Kounavis (Applicant)
Ernest Roux (Respondent)

Proceedings 2021/125156
John Charles Hickin (First Applicant)
Deonne Amy Hickin (Second Applicant)
Ernest Roux (Respondent)

Representation:

Proceedings 2021/125018
M Kounavis (Litigant in Person) (Applicant)
L Roux (Agent) (Respondent)
C Roux (Agent) (Respondent)

Proceedings 2021/125156
J Hickin (Litigant in Person) (First Applicant)
D Hickin (Litigant in Person) (Second Applicant)
L Roux (Agent) (Respondent)
C Roux (Agent) (Respondent)

File Number(s):

2021/125018 & 2021/125156

Publication restriction:

No

Judgment

Background to the application

1. Two applications have been made pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’) seeking orders for the removal of three trees on a residential property in Glenhaven. Maria Kounavis (‘the applicant, 2021/125018’) and John and Deonne Hickin (‘the applicants, 2021/125156’) each live on properties adjoining the property occupied by Lawrence and Carolina Roux but owned by Mr Roux’s father, Ernest Roux (‘the respondent’). Three hoop pines (Araucaria cunninghamii) (‘the trees’) stand on the respondent’s property close to its eastern boundary, being the common boundary with the applicants’ properties. If the trees fell, they could cause severe damage to property of the applicants in each application, or injury to anyone in their vicinity.

Framework for this decision

2. The Court may only make orders under Pt 2 of the Trees Act if satisfied that the applicant has made a reasonable effort to reach agreement with the tree’s owner (s 10(1)(a) of the Trees Act).

3. Then, at s 10(2) of the Trees Act, the Court may only make orders if satisfied that the subject trees have caused, are causing, or are likely in the near future to cause, damage to the applicants’ property, or are likely to cause injury to any person. Then, before making any orders, the Court must consider the matters at s 12 of the Trees Act. If orders are made, they might be those sought by the applicants. Alternatively, at s 9(1) of the Trees Act, “the Court may make such orders as it thinks fit to remedy, restrain or prevent damage to property, or to prevent injury to any person, as a consequence of the tree the subject of the application concerned.” Orders can only be made for each tree that meets the jurisdictional tests.

4. Each application must be considered on its own merits, but in the matters before me each applicant’s submissions are generally consistent with the other’s, so that the matters can be discussed together except where discrete mention of issues in one or the other is required.

5. In these proceedings, the parties generally agree that the three trees need to be removed. Dispute remains over the method of their removal and property access during removal.

The hearing

6. The hearing took place via audio-visual link, with applicants in both matters self-represented and Lawrence and Carolina Roux representing the respondent. I informed the parties at the end of the hearing that a decision could be made on the adduced evidence and submissions, so no site inspection would be required.

The applicants made reasonable effort

7. I am satisfied that the applicants in each matter made reasonable effort to reach agreement with the Rouxs. They wrote to the respondent requesting action be taken to reduce the risk of trees causing damage. Correspondence demonstrates the considerable effort made by the applicants over many months. Ms Kounavis engaged an arborist to prepare a report on the trees. The parties arranged mediation. The applicants have each found it challenging to get clear answers or agreement from the respondent, a difficulty reflected by my own experience with the Rouxs during the hearing.

The trees are likely to damage the applicants’ properties

8. The respondent lodged a Tree Management Application Form with The Hills Shire Council (’Council’) in February 2021. Council issued a permit allowing removal of all three hoop pines, noting very poor structure (tree 1), history of major branch failure (tree 2) and bark inclusion within the union of codominant stems (tree 3). Council “highly recommended” the removal of Tree 1. The applicants provided photographs that support Council’s description of the trees.

9. Ms Kounavis engaged consulting arborist Jim McArdle to assess and report on the trees. Photographs and descriptions in Mr McArdle’s report further support Council’s findings and recommendations, although Mr McArdle’s risk assessment provided no assistance to the Court.

10. Tree or branch failure is likely to result in property damage for applicants in both matters, and could cause injury to anyone in the vicinity of the trees. Open space within the trees’ target zones include gardens and the paved area around a swimming pool.

Tree removal is required

11. As I am satisfied that the trees are likely to damage the applicants’ properties in the near future, I can make orders (s 10(2) of the Trees Act). Based on descriptions of the trees’ structure, pruning would not sufficiently mitigate the risk, so tree removal is the appropriate outcome.

Access for tree removal

12. Before making orders, the Court must consider matters at s 12 of the Trees Act. The respondent no longer disputes that the three hoop pines must be removed, and I find that tree removal is necessary, so many of the discretionary matters at s 12 are not relevant in these proceedings. The issue remaining in dispute is access for removing the trees. The respondent obtained quotes for tree removal. The respondent submitted that the quoting arborists expressed concern that the respondent’s property would be damaged if the trees were removed through their own property, so it would be safer, cheaper and more convenient to gain access for a crane through Ms Kounavis’ property. Aerial access via climbing was apparently impractical. Ms Kounavis does not want a crane on her property due to the damage it is likely to cause to her driveway, underground services and garden.

13. The applicants had recommended certain arborists to the respondent, and spoke with one of them. They submitted that Sam’s Tree Services explained to them that dismantling the tree without a crane, but using a climber, and removing it through the respondent’s property, was in fact possible and reasonable.

14. With the Court in the position of having to determine what is fair and reasonable, I requested from the respondents all the information that would assist an informed and fair decision. The applicants had filed with the Court extensive evidence of the history of their communications with the respondent, a copy of Council’s determination, an arborist’s report and photographs. The respondents provided nothing to the Court. When pressed, Lawrence Roux said they had obtained seven quotes to remove the tree (none of which was provided to the Court), but preferred those using a crane with access through Ms Kounavis’ property for two reasons: to avoid potential damage to their own property, and for price. Mr Roux conceded that they had obtained a quote from Sam’s Tree Services for removing the three trees through their own property without a crane, but stated that it was significantly more expensive than the others. When pressed for further clarity, he could not say exactly how much more expensive because he did not have the quotes in front of him, despite being at home for the hearing at a scheduled time, and being otherwise prepared for this hearing. Eventually he suggested, less than convincingly, a difference of $7,000. He also stated that arborists who quoted with crane access through Ms Kounavis’ property told him that any damage should only be minor, such as cracks in her driveway. He thought it reasonable that she should accept this, while he was unwilling to accept potential damage to his own property.

15. Unable to see clearly through the haze of the respondent’s submissions, especially where Mr Roux was asking the Court to order crane access through an applicant’s property based on an unquantified cheaper cost to the respondent, I made the following interlocutory order at the hearing:

1. By COB 18 August the respondent or their agents are to email to the Court and to the applicants in both matters copies of the three quotes they described at today’s hearing (Sam’s Tree Services, McArdle’s, Hills Stump Grinding). They may include copies of other quotes they have received should they wish.

16. The respondent later sent the three quotes to the Court. Sam’s Tree Service quoted $25,300 to remove the three trees without requiring crane access through Ms Kounavis’ property. The other two quotes, for removing the trees with crane access through Ms Kounavis’ property, were both $20,900. The difference is $4,400.

17. The respondent has given Ms Kounavis no assurance that any damage to her property during works would be repaired. The applicants submitted that the respondent has not proven trustworthy to the extent that Ms Kounavis would feel confident allowing crane access through her property. Ms Kounavis submitted that the risk of property damage with a crane on her property would be greater for her than the risk of tree removal through the respondent’s property without a crane.

18. I find that the risk of damage to Ms Kounavis’ property from crane access outweighs the price difference of $4,400 to the respondent for removing the trees through their own property. No orders will be made for crane access through Ms Kounavis’ property. Orders will be made for the respondent to remove the three trees through their own property, with access to the applicants’ properties only for cleaning up debris and other minor elements of the works as required.

19. Were it not for the dispute regarding access, the three trees could have been removed pursuant to Council’s determination. The permit issued by Council on 15 February 2021 included conditions for replanting. It is therefore appropriate that replanting of that nature be ordered here. As is usual in a decision covering two tree dispute applications, orders are made separately in each matter in case orders in one matter are overturned. In these proceedings, satisfying the orders in one matter also satisfies those in the other.

Orders

Proceedings 2021/125018

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

1. The application is granted to the extent of the orders below.

2. Within 60 days of the date of these orders, the respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF Level 3) with all appropriate insurances to remove the three hoop pines near their eastern boundary to no more than one metre above ground level. Works are principally to be done from within the respondent’s property, other than minor elements of work and the cleaning up of debris. Any removal of logwood and branches from the site is to be done via the respondent’s property.

3. The works in (2) must be carried out in accordance with the 2016 Safe Work Australia Guide to managing risks of tree trimming and removal work.

4. The respondent is to give the applicant at least one week’s notice of the works in (2).

5. The applicant is to provide all reasonable access required to complete the works in (2) during reasonable hours of the day.

6. Within 90 days of the date of these orders, the respondent is to plant at suitable locations within their property that will allow for canopy and root development, at least 5 metres from any building and at least 2 metres from any boundary, three trees selected from the following:

1. Araucaria heterophylla (Norfolk Island Pine)

2. Angophora floribunda (Rough-barked Apple)

3. Hymenosporum flavum (Native Frangipani)

4. Buckinghamia celsissima (Ivory Curl Tree)

5. Callistemon salignus (Willow Bottlebrush)

7. The exhibits are returned except for A, B and C.

Proceedings 2021/125156

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

1. The application is granted to the extent of the orders below.

2. Within 60 days of the date of these orders, the respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF Level 3) with all appropriate insurances to remove the three hoop pines near their eastern boundary to no more than one metre above ground level. Works are principally to be done from within the respondent’s property, other than minor elements of work and the cleaning up of debris. Any removal of logwood and branches from the site is to be done via the respondent’s property.

3. The works in (2) must be carried out in accordance with the 2016 Safe Work Australia Guide to managing risks of tree trimming and removal work.

4. The respondent is to give the applicants at least one week’s notice of the works in (2).

5. The applicants are to provide all reasonable access required to complete the works in (2) during reasonable hours of the day.

6. Within 90 days of the date of these orders, the respondent is to plant at suitable locations within their property that will allow for canopy and root development, at least 5 metres from any building and at least 2 metres from any boundary, three trees selected from the following:

1. Araucaria heterophylla (Norfolk Island Pine)

2. Angophora floribunda (Rough-barked Apple)

3. Hymenosporum flavum (Native Frangipani)

4. Buckinghamia celsissima (Ivory Curl Tree)

5. Callistemon salignus (Willow Bottlebrush)

7. The exhibits are returned except for A and B.

……………………………….

D Galwey

Acting Commissioner of the Court

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Decision last updated: 26 October 2021