Leech v De Angelis

[2019] NSWLEC 1090

Land and Environment Court

New South Wales

Medium Neutral Citation:	Leech v De Angelis [2019] NSWLEC 1090
Hearing dates:	7 February 2019
Date of orders:	06 March 2019
Decision date:	06 March 2019
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The orders of the Court are: (1)   The respondents are to remove the Eucalyptus pilularis (Blackbutt) to near ground level and poison its stump. Tree climber access into the tree may be gained via the applicant’s property, but the tree is to be removed in its entirety via Sea Street below, not via the applicant’s property. Access to the applicant’s land for these works is subject to 48 hours written notice being provided to the applicant by email, and is to be gained during reasonable working hours. This tree removal shall be undertaken by AQF level 3 qualified arborists with appropriate Public Liability insurance. The tree removal shall meet SafeWork NSW Work, Health and Safety (WHS) guidelines, and the Workcover NSW Code of Practice for the Amenity Tree Industry. This work shall be completed within 45 days of the date of these orders, and at the respondents’ expense. (2)   The Ficus rubiginosa (Port Jackson Fig) growing below the Blackbutt is not to be damaged or negatively impacted during the removal process. Should the Ficus rubiginosa sustain any damage, the applicant is to photograph it, and provide notification and photographs by email to the respondent within 48 hours. Pruning rectification work required shall be undertaken by AQF level 3 qualified arborists with appropriate Public Liability insurance. This work shall be subject to SafeWork NSW Work, Health and Safety (WHS) guidelines, the Workcover NSW Code of Practice for the Amenity Tree Industry, and AS4373-2007 Pruning of amenity trees. Any pruning work required for rectification of damage to the Port Jackson Fig shall be completed within 14 days of the completion of the tree removal, and shall be undertaken at the respondents’ expense. (3)   Should property on the applicant’s land sustain damage during and as a result of this tree removal process, rectification of such damage shall be undertaken at the respondents’ expense. If damage is sustained, the applicant is to photograph it, and provide notification and photographs by email to the respondent within 48 hours. Upon completion of rectification works for any property damage incurred on the applicant’s land during and as a result of the tree removal process, receipted invoices are to be provided to the respondents by email, and the respondents are to reimburse the applicant for the total cost shown on these receipted invoices within 14 days of receiving them. These works shall be completed within 45 days of the completion of the tree removal, and if they are not completed within that period, this order lapses. (4)   Should the respondents not complete the tree removal within 45 days of the date of these orders, the applicant may engage AQF level 3 qualified arborists to remove the Blackbutt as specified in Order (1). Access for such works is subject to 48 hours written notice being provided to the respondents by email, and is to be gained during reasonable working hours. Upon completion, a receipted invoice for this work is to be provided to the respondents by email, and the respondents are to reimburse the applicant for the total cost shown on the receipted invoice within 14 days of receiving it. These works must be completed within 45 days of the termination of the 45 day period specified in Order (1), and if they are not completed within that period, this order lapses.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS): dropping branches – apprehension of injury
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Uniform Civil Procedures Rule 2005
Cases Cited:	Yang v Scerri [2007] NSWLEC 592
Texts Cited:	AS4373-2007 Pruning of amenity trees SafeWork NSW Work, Health and Safety guidelines Workcover NSW Code of Practice for the Amenity Tree Industry
Category:	Principal judgment
Parties:	Michael Leech (Applicant) Arch De Angelis (First Respondent) Robyn De Angelis (Second Respondent)
Representation:	M Leech, litigant in person (Applicant) A De Angelis, litigant in person (First Respondent)
File Number(s):	2018/344491
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an application, pursuant to s 7 of Part 2 of the Trees (Disputes between Neighbours) Act 2006 (the Act) by Mr Leech of Hunter’s Hill, regarding a Blackbutt (Eucalyptus pilularis) (the tree) located in the adjacent neighbouring property.

2. Mr Leech’s property is located on a fairly steep slope with a north to north-western aspect. The tree is positioned about a metre beyond the northern boundary, close to the edge of a north to north-west facing sandstone escarpment, and high above an access road to one row of houses, which are located diagonally below along the waterfront.

3. The tree is mature to over-mature. It stands approximately 19 metres tall with a canopy spread of about 15 metres, and the diameter of its trunk at breast height (DBH) exceeds one metre. Branches extend over parts of Mr Leech’s yard by about seven metres, and over the road by a similar distance to the north, north-west.

The hearing

4. The hearing commenced in the applicant’s yard, near the base of the tree. Mr Leech attended the hearing, while Mr and Mrs De Angelis arrived more than an hour late, soon after the summary judgment was delivered. Mr De Angelis had also failed to attend the Directions hearing, held on December 18, 2018.

5. I examined the southern side of the tree, visible from the applicant’s property. From this aspect, it appeared to have a strong sound trunk, and firm anchorage in the soil. I was, however, unable to confirm this as the tube steel boundary fence and proximity to the cliff edge prevented my access to the northern side of the trunk. I was thus also unable to assess the integrity of the root crown zone, where the primary woody roots emanate laterally from the lower trunk.

6. There were also signs of significant termite damage at an old major pruning wound low down on the southern side of the trunk, though it did not appear to be sufficient damage to compromise the trunk’s structural integrity. The woundwood response growth occluding around this pruning cut was limited, and appeared to be developing at a very slow rate.

7. I thoroughly assessed the branch scaffold from various positions in the yard, and noted many locations on the tree where limbs had shed in the past, along with indications of extensive cockatoo damage. The foliage cover is dense and appeared to be healthy, and free of obvious insect damage.

The applicant’s case

8. Mr Leech seeks orders for an arborist to be engaged to remove the tree on the basis of damage to property, and risk of injury. He proposes that it be removed via Sea Street, below the tree.

The respondent’s case

9. Mr Leech’s proposed order for tree removal is resisted by Mr De Angelis. He does appear to be prepared to have the tree pruned, based on an incomplete pruning application lodged with Hunter’s Hills Council (Council) on December 11, 2018 which was included in the case file. Mr Leech alleged that he was unaware of this application, and had not received a copy from Mr De Angelis.

Jurisdictional requirements

10. With respect to s 7, an owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land.

11. The Court is obliged to consider a number of matters pursuant to s 10 of the Act.

12. As required by s 10(1), I am satisfied that there has been an attempt by the applicant to reach agreement with the owner of the land on which the tree is situated. Mr Leech provided evidence showing repeated unsuccessful approaches to secure Mr De Angelis’ cooperation with respect to lodgement of an application, as per Council’s requirement, for pruning or removal.

13. A Chronology dated December 18, 2018 was included with the application, and referenced at the hearing as Exhibit B. In it, Mr Leech notes that “in the past 12 months branch failures have increased.” He stated that “Neighbour had come to the site in February 2018 and provided a quote to remove suspect branches over our property”, but no pruning was undertaken. Mr Leech notes that after each subsequent branch failure in 2018, he sent messages and photos to Mr De Angelis, but did not receive “response or assurances.”

14. The next major test that is posed, by s 10(2) of the Act, is that the Court must be satisfied that the tree concerned has caused, is causing or is likely, in the near future, to cause damage to the applicant’s property or is likely to cause injury to any person. Only one of these four tests must be satisfied for the case to advance.

Risk of Injury

15. Mr Leech’s request for tree removal is primarily based on the perceived high risk of injury resulting from branches dropping on to people walking across the area below the tree. He specifically noted a path, which runs from his primary residence to a studio occupied by his children, and passes underneath the southern side of the overhanging canopy. He also raised an incident where a branch had landed within a few metres of him, while he was watering the garden, exacerbating his apprehension.

16. Using the guidance decision published in Yang v Scerri [2007] NSWLEC 592 with respect to injury, the Court considers the risk posed by a tree based on the characteristics of the tree/s, any history of previous failures and the circumstances of the site apparent at the time of the hearing.

17. There are obvious characteristics of this tree that raise concern, and considerable evidence of a history of branch failures, reported to have occurred at an increasing frequency over the last two years. Mr Leech noted that these failures had occurred in both windy and still conditions. He included an arborist’s report, dated February 23, 2017, with his application, which was commissioned mainly in response to this branch shedding, and it addressed many of the issues that I note as problematic. This brief report from Mr Kokot of Rain Tree Consulting notes that it is not a “full and detailed risk assessment.” It also states that it has not been prepared for Land and Environment Court (LEC) matters, and that modification would be required for it to reflect the Uniform Civil Procedures Rule 2005 – Schedule 7 Expert Witness Code of Conduct. As such, consideration of its findings must be discounted, but not ignored.

18. The report specifically considered two branches of about 120mm diameter that had failed and fallen onto Mr Leech’s land. It also notes both the cockatoo and termite damage, and a very high likelihood of additional stem failure in the future, given the location of wounds, exposure and bending stress.

19. Copies of an array of photographs, documenting other branches that had fallen from the canopy onto the path, fence and garden, were also provided by Mr Leech. They displayed many branches which were of a length, diameter and volume that had the propensity to cause damage and injury. Some of the photos displayed bending and distortion of the boundary fence, but the applicant has specifically made no claim for compensation for this fence damage. One photo shows a large inverted branch that had recently fallen into the upper canopy of a Ficus rubiginosa (Port Jackson Fig), growing below the tree. The remnants of this branch were still evident at my site inspection and it measured about 100 mm in diameter at the torn point of breakage. Had the branch not lodged in this tree, it would almost certainly have fallen onto the road below.

20. Mr Leech also supplied a copy of a Tree and Vegetation Management determination, dated October 29, 2018 from Hunter’s Hill Council. In this document, Ms Tracy Ivin, Council’s Parks and Landscape Coordinator, noted in relation to the tree, that Council cannot approve pruning works without the owner’s signature/consent. She recommended that the owner of the tree be contacted urgently, and that the fallen limbs should be retained and photographed to provide as evidence if removal is requested for the tree. Ms Ivin also stated that should the owners wish to have the tree removed, a Development Application will need to be lodged with Council.

21. In his Chronology (Exhibit B), Mr Leech noted that after Ms Ivin’s inspection on October 23, 2018, he texted Mr De Angelis and included photos of fallen branches, noted Council’s requirement for owner’s consent for intervention with the tree, and requested an urgent response. A photograph of a copy of this text message is included with his application. He further asserts that after receiving no viable response, some weeks later he lodged his application under the Act.

22. Based on my inspection of the canopy, many branch breakage points were up to about 90mm in diameter, but at least two were greater than 150 mm. A branch of approx. 125mm diameter at the breakage point had been retained by the applicant. It exhibited internal damage and hollowing, and embrittlement of heartwood as a consequence of termite activity, in conjunction with cockatoo damage extending through from the outside of the bark and into the sapwood.

23. Many areas of cockatoo damage were evident throughout the canopy, the majority of the larger ones were located at branch junctions, plus many others at various points along the branches. In all cases that I observed, this cockatoo damage was located on the upper surfaces of the branches, which is the usual pattern of such activity. This combination of internal hollowing from termites and removal of critical tension wood from the upper branch surfaces results in reduction of strength. Based on this evidence, it is also reasonable to expect internal heartwood of other trunks and larger branches to be damaged and hollowed out by termites, and thus weakened, structurally.

24. This is not unusual with a specimen of this age, and the impact is exacerbated by the relatively slow and inadequate response growth, as noted around the pruning wound low on the trunk. Younger trees are generally able to produce vigorous localised compensatory growth in response to this type of strength reduction, but this propensity generally reduces as they reach the latter stages of their life cycle.

25. Some of the photos of smaller diameter branches that had been shed did not exhibit these obvious signs that may assist one to predict likely points of branch failure. Both dead and live branches often shed from many trees in or after heavy storms. Some individual trees shed live branches from a young age and this is generally related to genetics, or species characteristics. Others are structurally stable when young and through much of their mature stage, but become more structurally unpredictable as they grow into the latter stages of their life cycle. This may be a result of cockatoo and/or termite damage, as in this case, but it is often triggered or exacerbated by sustained periods of lower than average rainfall in the context of their location. This results in insufficient moisture absorption, and leads to reduced flexibility and increased brittleness in their branches. Again, this is likely to be the case with this tree.

26. Sometimes the characteristic of branch shedding develops quite quickly, as a result of a marked change in moisture availability caused by an activity such as paving the area below the tree canopy. More often it develops more gradually as a result of the cumulative impact of multiple factors. Unless there is a marked improvement in its environmental conditions, it is normally progressive and very likely to continue.

27. With the arboricultural expertise and experience I bring to the Court, I consider the level of risk from branch drop onto these areas below to be low to moderate, but steadily increasing, and in this context I deem it unacceptable. The likelihood of branches impacting people is very low, but the consequences in terms of injury are serious.

28. Many of the visible branch failures were located along the branches, distant from the trunks, and this increases the likelihood of impacting targets relative to those that break closer to the trunks, because there is less likelihood of the outer torn branches being impeded by other branches that may slow their fall, create more noise, and thus provide more warning.

29. When branches are shed from the northern side of the canopy, they most likely would not be noticed by pedestrians or drivers until they had impacted, or were close to impacting the road below, and, having fallen from a great height, there would be considerable force.

30. There are limited options available to mitigate the associated risk. Exclusion of access to the path and garden, or road below would be unrealistic, in that there are no obvious alternatives where the path between the applicant’s dwellings, or the road, could be re-routed.

31. The option of pruning may seem an obvious compromise solution, but this is not the case. It is important to note that the dense, apparently healthy foliage cover does not necessarily correlate with sound structural integrity of the branches, particularly with over-mature trees.

32. Extensive pruning would be required to clear the canopy from the target zones, most likely 30 to 40 per cent. Pruning of live foliage intrinsically has a negative impact. It reduces the tree’s photosynthetic capacity, causing the tree to use limited stored starches to maintain existing cells, and produce new growth in an attempt to re-establish root/canopy equilibrium. Subsequent regrowth is often more poorly attached than that the original growth, and thus is even more prone to shedding. Mr Kokot, in his report, refers to this in terms of the compromised structural integrity and form of the existing branch scaffold.

33. Should the tree recover from the heavy pruning through regrowth, the pruning would need to be repeated to again reduce the risk. If the tree has insufficient stored resources to re-establish a viable canopy, whether after initial or repeated pruning, it would have reduced capacity to provide sufficient moisture to branches, and, as previously mentioned, the branches would become less flexible, more brittle, and more prone to shedding. This spiral of decline is fundamental arboricultural knowledge, and normal in the latter stages of the trees’ life cycles. Unsurprisingly, it is often hastened by the pressures exerted on tree growth in urban environments.

Discretionary matters – s 12

34. In making an order, the Court must consider relevant matters in s 12 of the Act. The relevant clauses are:

• The tree is located close to the boundary. Although the tree is mature to over-mature, in the absence of constraints it would continue to grow for many years, though more slowly as it ages (s 12(a));

• With reference to s 12(b), the tree is protected by Council’s Tree Management controls under its Development Control Plan. In his belated application to Council for pruning of 20% of the canopy, Mr De Angelis indicated that both his residence and wall are subject to Heritage considerations, but he has not noted the tree in this respect. Removal would not require approval under the Heritage Act 1977;

• With respect to s 12(b2), pruning has already been addressed as not a viable medium or long term option;

• The tree contributes significantly to protection from the sun, and to the amenity of the applicant’s property, and to the immediate locality. It is a large prominent tree and is clearly visible from neighbouring houses and from the waterfront. As such, it has significant intrinsic value to public amenity (s 12(b3)(e)(f));

• This species is endemic to the area. It could be reasonably expected that because of its flowering and fruiting characteristics, and its various cavities, hollows, and other wounds, it would provide food and or shelter for local fauna and thus would contribute to local biodiversity (s 12(d)).

• The tree is likely to be contributing to soil stability in its cliff top location. For this reason, no attempt should be made to remove or disturb its roots after removal (s 12(g)).

Conclusion

35. As is clear from these significant discretionary considerations, when trees pass through maturity into over-maturity, their benefits and environmental value generally increases, while, in urban areas, they often become more difficult to maintain, protect and retain. Had this tree been located distant from stationary and human targets, as would likely have been the case earlier in its long life, it could be left to decline and senesce gracefully, without intervention. This is now not the case, however, and it is unreasonable for the applicant, his family, and residents below, to live with the risk of injury that the tree imposes, and will very likely, increasingly impose. There is evidence to support the applicant’s fear and apprehension.

36. With reference again to the guidance decision published in Yang v Scerri [2007] NSWLEC 592 with respect to injury, the characteristics of the tree, the extensive history of previous failures and the circumstances of the site apparent at the time of the hearing, lead me, regrettably, to order tree removal.

37. It is customary for the respondents to bear the financial burden required to satisfy the Court’s orders, unless there is good reason for this not to be the case. Considering the respondents’ lack of cooperation towards resolving this dispute, there is certainly no good reason.

Orders

38. The orders of the Court are:

1. The respondents are to remove the Eucalyptus pilularis (Blackbutt) to near ground level and poison its stump. Tree climber access into the tree may be gained via the applicant’s property, but the tree is to be removed in its entirety via Sea Street below, not via the applicant’s property. Access to the applicant’s land for these works is subject to 48 hours written notice being provided to the applicant by email, and is to be gained during reasonable working hours. This tree removal shall be undertaken by AQF level 3 qualified arborists with appropriate Public Liability insurance. The tree removal shall meet SafeWork NSW Work, Health and Safety (WHS) guidelines, and the Workcover NSW Code of Practice for the Amenity Tree Industry. This work shall be completed within 45 days of the date of these orders, and at the respondents’ expense.

2. The Ficus rubiginosa (Port Jackson Fig) growing below the Blackbutt is not to be damaged or negatively impacted during the removal process. Should the Ficus rubiginosa sustain any damage, the applicant is to photograph it, and provide notification and photographs by email to the respondent within 48 hours. Pruning rectification work required shall be undertaken by AQF level 3 qualified arborists with appropriate Public Liability insurance. This work shall be subject to SafeWork NSW Work, Health and Safety (WHS) guidelines, the Workcover NSW Code of Practice for the Amenity Tree Industry, and AS4373-2007 Pruning of amenity trees. Any pruning work required for rectification of damage to the Port Jackson Fig shall be completed within 14 days of the completion of the tree removal, and shall be undertaken at the respondents’ expense.

3. Should property on the applicant’s land sustain damage during and as a result of this tree removal process, rectification of such damage shall be undertaken at the respondents’ expense. If damage is sustained, the applicant is to photograph it, and provide notification and photographs by email to the respondent within 48 hours. Upon completion of rectification works for any property damage incurred on the applicant’s land during and as a result of the tree removal process, receipted invoices are to be provided to the respondents by email, and the respondents are to reimburse the applicant for the total cost shown on these receipted invoices within 14 days of receiving them. These works shall be completed within 45 days of the completion of the tree removal, and if they are not completed within that period, this order lapses.

4. Should the respondents not complete the tree removal within 45 days of the date of these orders, the applicant may engage AQF level 3 qualified arborists to remove the Blackbutt as specified in Order (1). Access for such works is subject to 48 hours written notice being provided to the respondents by email, and is to be gained during reasonable working hours. Upon completion, a receipted invoice for this work is to be provided to the respondents by email, and the respondents are to reimburse the applicant for the total cost shown on the receipted invoice within 14 days of receiving it. These works must be completed within 45 days of the termination of the 45 day period specified in Order (1), and if they are not completed within that period, this order lapses.

………………………….

J Douglas

Acting Commissioner of the Court

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Decision last updated: 06 March 2019