Lovering v Bromage

[2023] NSWLEC 1029

Land and Environment Court

New South Wales

Medium Neutral Citation:

Lovering v Bromage [2023] NSWLEC 1029

Hearing dates:

27 October 2022

Date of orders:

24 January 2023

Decision date:

24 January 2023

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

The Court orders that:

(1)   The application is granted, in part.

(2)   Within 45 days of the date of these orders, the Respondent, at her expense, shall remove Tree 1 and Tree 2, including stump grinding to approximately 300mm below ground level.

(3)   Within 45 days of the date of these orders, the Respondent, at her expense, shall prune Tree 3, to remove all dead branches in excess of 20mm diameter at the branch collar, plus one particularly overextended live branch, growing over the properties of the Applicant and the Applicant’s west side neighbour.

(4)   All works in Orders 2 and 3 shall be completed by AQF level 3 arborists with all appropriate insurances, and all pruning shall conform with the guidelines of AS 4373:2007 Pruning of amenity trees.

(5)   All works shall comply with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work 2016.

(6)   Upon completion of the works specified in Orders 2 and 3, the Applicant shall pay the Respondent an amount equivalent to 35% of the total cost of the works, within 14 days of receipt of a paid itemised invoice.

(7)   Should access be required into the Applicant’s property to undertake these works, or for removal of refuse, all reasonable access shall be granted, subject to 72 hours written notice to the Applicant’s Agent, and to the Applicant’s tenant.

(8)   All works are to be completed during normal work hours.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) –trees causing damage to roof and retaining wall – are there viable alternatives to tree removal – do benefits from trees exceed the imperative to remove them

Legislation Cited:

Environmental Planning and Assessment Act 1979
Trees (Disputes Between Neighbours) Act 2006

ss 6, 7, 10, 12, Pt 2

Cases Cited:

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

Gardiner v Bisley [2021] NSWLEC 1176

Hodgson v Woodward [2009] NSWLEC 1283

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

Stevens v Russell [2016] NSWLEC 1233

Yang v Scerri [2007] NSWLEC 592

Texts Cited:

Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016.

AS4373:2007 Pruning of amenity trees.

Category:

Principal judgment

Parties:

Robert Lovering (Applicant)
Beverley Anne Bromage (Respondent)

Representation:

Counsel:
K Knezevic (Agent) (Applicant)
B Bromage (Self-represented) (Respondent)

Solicitors:
BCM Property P/L (Agent)(Applicant)

File Number(s):

2022/246433

Publication restriction:

No

Judgment

Background

1. COMMISSIONER: Mr Lovering (the Applicant) and Ms Bromage (the Respondent) share a boundary between their properties in North Richmond, where the rear of the Applicant’s dwelling adjoins the southern side of the Respondent’s back yard. A tall fence separates the properties.

2. Originally, both properties were established as single dwellings, but the Applicant subsequently developed his land by building a small second dwelling close and parallel to the rear common boundary. This dwelling is leased to Ms Connell, who attended the onsite hearing.

3. Three trees are growing close to the common boundary in the Respondent’s back yard, and their canopies extensively overhang the Applicant’s rear dwelling. The Applicant claims that, particularly during storm conditions, branches have fallen from the trees onto this dwelling’s roof, breaking and piercing through tiles. Secondary damage from saturated ceilings and extensive mould is also alleged by the Applicant, along with damage to the rear retaining wall. The Applicant alleged that the property’s insurer had advised that the trees require removal before the insurer will rectify recent damage and claimed that the Respondent should pay for the trees’ removal, because they are located on the Respondent’s land.

4. The Respondent also leases her property to tenants and was pragmatic about the trees, notwithstanding preferring that they be retained. She acknowledged that either pruning or removal was most likely required but expressed frustration that the Applicant had built his second dwelling so close to large, long-established trees, and thus indirectly created the problem.

5. In a letter to the Court, filed on 30 September 2022, the Respondent submitted that the Applicant had “always had the right to trim, lop, topping [sic], cut back any and all overhanging branches but have never attempted to do so”. The Respondent claimed that in past and recent communication, Hawkesbury City Council had advised that, had the Applicant applied to remove the trees at the time of the rear dwelling’s development permission would probably have been granted, but the cost of removal would have sat with the Applicant.

6. As a result of this impasse, where both parties claim that the other should pay for removal of the trees, Mr Lovering made an application pursuant to s 7 of Pt 2 of the Trees (Disputes Between Neighbours) Act 2006
   (Trees Act) seeking orders for the removal of the trees, at the Respondent’s expense.

The onsite hearing

7. The hearing was conducted onsite on 27 October 2022, with Ms Knezevic from BCM Property P/L acting as the Applicant’s Agent, Ms Connell providing first-hand evidence, and Ms Bromage self-represented. At the directions hearing of 20 September 2022, Ms Bromage had advised the Court of her recent marriage and change of name, however the property and the Court still record the owner by the name Beverley Anne Bromage.

8. Both properties were inspected, commencing with the trees growing in a row along the boundary in the Respondent’s back yard. Starting at the rear of the yard, the trees are a Grevillea robusta (Silky Oak) (Tree 1), a Eucalyptus saligna (Sydney Blue Gum) (Tree 2) and a Eucalyptus crebra (Grey Ironbark) (Tree 3). All three are large and mature with Tree 2 being the tallest, at about 18 metres (m). Both Tree 1 and 2 were probably planted 30 – 45 years ago, regrettably close to the common boundary, which they are now enveloping. Both their canopies, but particularly Tree 2, extend far over the Applicant’s dwelling.

9. Tree 3 is indigenous to this area. Ironbark trees are generally slow growing and long lived and this tree may predate development of the land. Most importantly, it is at least 300mm from the common boundary, and its roots appear to be clear of structures in the Applicant’s property.

10. The Court inspected damage in the Applicant’s dwelling and backyard. Water damage to the ceiling was evident, and Ms Connell provided oral evidence of water pouring into the house through broken tiles during a storm of the night of Saturday 6 March 2022. Ms Connell submitted that regardless of storms, she regularly needed to climb on the roof and replace broken tiles damaged by fallen branches, and that such damage had been especially common over the previous six months.

11. Ms Connell displayed an admirably positive attitude in the face of this situation, but it is not reasonable for the tenant to be placed in a position of possible injury by having to take responsibility for tile replacement. In a further display of resilience and adaptability, to deal with large quantity of leaves and sticks falling from the trees, Ms Connell had suspended netting above walkways to catch the refuse and reduce maintenance.

12. It appears that the level of the rear of the Applicant’s land was lowered in preparation for building the dwelling, such that a wall below the fence retains the Respondent’s land. This retaining wall is being damaged in close proximity to the location of Tree’s 1 and 2.

Jurisdictional requirements

13. With respect to s 7 of the Trees Act, 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.

14. The Court is obliged to consider a number of matters pursuant to s 10 of the Trees Act which states:

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

(a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, and

(b) if the requirement to give notice has not been waived, that the Applicant has given notice of the application in accordance with section 8.

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

(a) has caused, is causing, or is likely in the near future to cause, damage to the applicant's property, or

(b) is likely to cause injury to any person.

15. Though scant evidence of the Applicant’s efforts to reach agreement with the Respondent was provided in the application, it became clear at the hearing that discussions regarding quotes and access had been ongoing over recent years, notwithstanding the disagreement over who pays. Therefore, I am satisfied that the requirements of s 10(1)(a) of the Trees Act have been met.

16. The following commentary provides explanation of the ‘reasonable effort required to reach agreement’. In Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (“Robson”), at [194 – 195], Preston CJ notes:

“[194] The Trees (Disputes Between Neighbours) Act 2006 does not specify any particular time at which the applicant must make a reasonable effort to reach agreement with the tree landowner, other than fixing the end point by requiring that the Court cannot make an order under the Act unless it is satisfied that the applicant has made a reasonable effort to reach agreement with the tree landowner. Hence, although it would be preferable for an applicant to make a reasonable effort to reach agreement with the tree landowner before making application to the Court, so as to avoid court action, there is no requirement to do so and a reasonable effort to reach agreement can be made after making the application at any time up until the Court determines the application.

[195] The language in s 10(1)(a) of the Trees (Disputes Between Neighbours) Act 2006 that the applicant has made “a reasonable effort to reach agreement” is less demanding than the language used in provisions of other statutory enactments which require parties to make reasonable attempts to reach agreement in relation to matters claimed in the court originating process.”

17. The application was filed with the Court on 19 August 2022 and provided the required notice to satisfy s 8 of the Trees Act.

18. The next jurisdictional test is at s 10(2).

Damage from falling branches

19. The evidence on site, Ms Connell’s oral submission, and copies of emails between Ms Connell, BCM Property P/L and the Applicant, which followed the March 2022 storm, satisfy me that the trees have caused damage to the roof of the dwelling, and consequent damage from water entry. Therefore, s 10(2)(a) of the Trees Act is engaged.

20. There are many dead branches amongst the overhanging canopies of the trees, some of which are long and heavy. I am thus also satisfied that, without intervention, the trees are likely to cause further roof damage in the near future, where, in a guidance decision published in Yang v Scerri [2007] NSWLEC 592, the ‘near future’ is deemed to be a period of about 12 months from the date of the determination. Consequently, s 10(2)(a) is engaged.

21. The Respondent concluded her letter to the Court of 30 September 2022, claiming that she should “not be held accountable financially for another’s (the Applicant’s) lack of duty of care”. This was apparently based on the Applicant building the rear dwelling so close to the established trees, but the Respondent failed to consider the duty of care which she owes the Applicant and the Applicant’s tenant.

22. The Trees Act extinguishes previous common law rights with respect to the tort of nuisance, but it does not extinguish action under negligence.

23. Preston CJ provided extensive commentary on negligence and duty of care at [93] – [99] of Robson, as follows:

24. Negligence

“[93] The third cause of action at common law is in negligence. To succeed in a cause of action in negligence, the plaintiff must prove:

(a) the defendant owed the plaintiff a duty, recognised by law, requiring the defendant to adhere to a certain standard of conduct;

(b) the defendant breached that duty;

(c) the plaintiff suffered loss;

(d) the loss was caused by the defendant’s breach of duty; and

(e) the loss suffered by the plaintiff was not too remote, that is to say, the injury complained of was not only caused by the alleged negligence, but was also an injury of a class or character which was reasonably foreseeable as a result of the possible negligent act or omission: Kenny & Good Pty Ltd v MGICA (1992) Ltd (1997) 77 FCR 307 at 322.

[94] As to the first element, the existence of a duty of care, one unifying principle for determining when a duty of care will arise has not emerged: Perre v Apand Pty Ltd (1999) 198 CLR 180 at 210 [76], 217 [93]. At the minimum, there needs to be reasonable foreseeability: a defendant must know or ought reasonably to know that he or her conduct is likely to cause harm to the person or the tangible property of the plaintiff unless the defendant takes reasonable care to avoid that harm: Perre v Apand Pty Ltd (1999) 198 CLR 180 at 208 [70] and see also s 5B(1)(a) of the Civil Liability Act 2002 (NSW).

[95] The difficulty that has arisen is ascertaining what, if any, further requirements need to be satisfied before the law will impose a duty of care. Proximity had been suggested as a determinant of a duty of care, but it has now been rejected: Hill v Van Erp (1997) 188 CLR 159 at 176-177, 210, 237-239; Perre v Apand Pty Ltd (1999) 198 CLR 180 at 198 [27], 209 [74], 283 [280], 301 [330]-[331]; and Vairy v Wyong Shire Council (2005) 223 CLR 422 at 433 [28] and 444-445 [66]. Other factors have been suggested (see Perre v Apand Pty Ltd (1999) 198 CLR 180 at 194 [10]-195 [15], 231 [133], 254 [201], 275 [259], 303 [335], 326 [406]) but no consensus has emerged.

[96] Determining whether a duty of care arises is more straightforward where the relationship between the plaintiff and the defendant falls into one of the established categories of cases in which the common law imposes a duty of care on a person in the position of the defendant to take care of a person in the position of the plaintiff: Vairy v Wyong Shire Council (2005) 223 CLR 422 at 432 [27], 443 [63]. The relationship between the owners or occupiers of neighbouring properties is a familiar category where the common law imposes a duty of care on each neighbour in relation to the other neighbour.

[97] As to the second element, breach of the duty, Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at [47]-[48] said:

“In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.”

[98] This statement of principle has been repeatedly approved and applied: see, for example, Brodie v Singleton Shire Council (2001) 206 CLR 512 at 577 [151]; Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 at 472 [39], 482 [72] and [74], 502 [138]; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at 585 [106]-[107], 612 [193]; Vairy v Wyong Shire Council (2005) 223 CLR 422 at 433 [27], 447 [72], 456 [105], 464 [134] and 466 [144]. A statement to similar effect is to be found in s 5B(2) of the Civil Liability Act 2002 (NSW).

[99] One situation in which the owner or occupier of land may be liable in negligence is where a tree growing on the land, or a branch or part of the tree, falls and causes damage to a person and/or their property. An example is where a tree falls onto a public road, injuring a person using the road, either directly or indirectly, such as where the person’s car collides with the fallen tree: Brown v Harrison (1947) 204 LT 24 (tree fell injuring users of the highway); Quinn v Scott [1965] 2 All ER 588 (tree fell onto highway causing collision between two vehicles); Smibert Group Transport Pty Limited v Clifford [2005] SADC 80 (8 July 2005), 241 LSJS 1 (tree fell onto highway and user’s vehicle collided with fallen tree); and Turner v Ridley (1958) 144 A2d 269 (tree fell onto adjoining road striking a car parked at the curb). In each of these cases, the tree was apparently in a state of decay and the risk of causing damage to road users posed by the tree or parts of it falling was obvious, but the defendants failed to take steps to mitigate the risk of damage.”

25. A large quantity of dead branches has accumulated amongst the trees’ canopies over a period of some years. Many of them are large and long. They are overhanging the Applicant’s dwelling, such that branch breakage and subsequent roof damage is foreseeable. This satisfies all five elements of negligence, outlined above at [93] of Robson, as “The relationship between the owners or occupiers of neighbouring properties is a familiar category where the common law imposes a duty of care on each neighbour in relation to the other neighbour” (see Robson at [96]).

26. In describing the circumstance where parties were found negligent after omitting to prevent trees or branches from falling onto roadways, his Honour notes, at [99] of Robson, that “In each of these cases, the tree was apparently in a state of decay and the risk of causing damage to road users posed by the tree or parts of it falling was obvious, but the defendants failed to take steps to mitigate the risk of damage.” In this case, the “risk of causing damage’ to the Applicant’s property was similarly obvious.

Damage to retaining walls

27. In Stevens v Russell & anor [2016] NSWLEC 1233 at [41], Fakes C notes that “it is a common assumption that the mere presence or proximity of a tree is sufficient to conclude that the tree is the cause of the damage. It is not. It is necessary to find evidence to substantiate the assumption that the tree has caused the damage. In the case of alleged root damage, some excavation is usually required.”

28. Though excavation by the Applicant is thus normally required, in this case, having examined the trees from the Respondent’s back yard and noted damage within the rear of the Applicant’s property, I am satisfied that a causal relationship exists between two of the trees and damage to retaining walls. Tree 1 and Tree 2 are located about 6 m apart, and the location of wall damage aligns with each tree. Tree 2 has a large trunk, the base of which appears to be in close contact with the wall. Consequently, s 10(2)(a) is again engaged.

29. Tree 3 was located near the boundary that the Applicant shares with his west-side neighbour, relatively clear of structures in the Applicant’s property. There is no evidence of Tree 3 causing structural damage.

30. With s 10 satisfied with respect to damage or injury, I am required to consider relevant discretionary matters in s 12 of the Trees Act, as follows:

1. Tree 1 and Tree 2 are located very close to the boundary while Tree 3, which is of a slow growing species, is about 300mm clear. All three trees significantly overhang the Applicant’s adjacent dwelling, subs (a).

1. In the absence of s 6(3) of the Trees Act, interference with the trees would likely require consent of Council under the Environmental Planning and Assessment Act 1979, subs (b).

2. Pruning the trees regularly or to a significant extent would not prevent additional wall damage. Rather, it may promote additional damage in the medium term, subs (b2).

3. The trees contribute to the Respondent’s protection from the sun and wind. They are large trees that cumulatively make a strong impact on the landscape, subs (b3).

4. The trees do not appear to be of historical, cultural, social or scientific value, subs (c).

5. Being mature large native trees, they likely provide food and habitat for flora and fauna and thus make a significant contribution to the local ecosystem and biodiversity, subs (d).

6. The trees contribute to the natural landscape and scenic value of the land on which it is situated and the nearby locality. They provide considerable public amenity in a busy residential/ commercial area, subss (e) and (f).

7. Given the different levels on which the properties are located, the trees are likely to be providing benefit to soil stability, and to the absorption of water and the reduction of run off, subs (g).

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

9. The fact that ‘the tree was there first’ is one such important consideration, where the structure that is the subject of a damage claim was erected in the vicinity of an existing tree. In Black v Johnson (No 2) [2007] NSWLEC 513 (Black), the Court has published a tree dispute principle which says, in summary, that the fact that the tree was there first should not impact on whether or not some order should be made about the tree but, subject to a range of matters discussed in the principle, the prior existence of the tree may be a relevant matter to be considered when deciding who should meet the cost of carrying out any orders which the Court might make, (subs (i)).

10. Following on from ‘the tree was there first’ structures built beneath existing trees may be of a design that fails to take account of existing adjacent trees and thus exacerbate problems (see Hodgson v Woodward [2009] NSWLEC 1283), (subs (i)).

Findings

31. I am satisfied that branches that have fallen from the trees have caused damage to the Applicant’s rear dwelling, and that further damage from falling branches is likely in the near future. I am also satisfied that the trunk base and primary roots of Tree 1 and Tree 2 are causing emerging damage to a retaining wall at the rear of the Applicant’s land.

32. The canopies of these three large native trees meld together, imposing a significant visual impact on the surrounding locality, and providing an important contribution to local biodiversity. In contemplating orders, I initially considered pruning of major dead and overextended overhanging branches to be the best option, but given the extent of the overhang, and the history of an absence of tree maintenance by the Respondent, the situation is likely to recur.

33. Most significantly, Tree 1 and Tree 2 are impacting the Applicant’s rear retaining wall. The last two years of above average rainfall have been especially favourable for tree growth and Tree 2, in particular, displays considerable vigour and strong growth.

34. Given Tree 2’s close proximity to the boundary wall, this emerging wall damage is likely to increase relatively rapidly, and root pruning to provide clearance from the wall would necessarily be so severe that it would likely lead to destabilisation of the trees.

35. Therefore, the only viable option to address the damage, and resolve the dispute, is removal of Tree 1 and Tree 2 and pruning of Tree 3.

Conclusion

36. I have examined the tree and the site and have reached the following conclusions:

1. While the trees provide many environmental services, as displayed in consideration of discretionary elements in s 12 of the Trees Act, the nature and extent of damage to property resulting from the trees, necessitates the removal of Tree 1 and Tree 2 and the pruning of Tree 3.

2. Though the Respondent considered the location of the Applicant’s dwelling to be the primary cause of the damage, Ms Bromage made no submission that the dwelling was not compliant with Council requirements. While most Council’s consider the impact of development on adjacent large trees in neighbouring properties, this does not appear to have occurred here.

3. In contemplating the apportionment of financial responsibility between the parties in carrying out orders, I considered the fact that the trees were in situ long before the Applicant’s dwelling, and the poor design in the placement of the dwelling as close to the trees as appeared possible. In Gardiner v Bisley [2021] NSWLEC 1176, in a similar situation with a mature Eucalyptus pilularis (Blackbutt), the Applicant was ordered to pay the Respondent an amount equivalent to 50% of the cost of aerial inspection and pruning works, within 14 days of receipt of a paid invoice.

4. I am, however, not satisfied that it was reasonable for the Respondent to rely on generalised communication from Hawkesbury City Council, provided to the Court as hearsay evidence only, and referred to previously at [5], to justify not paying for, and thus not undertaking any past maintenance on the trees that was clearly required to prevent likely damage or injury. Though the Respondent claimed that the Applicant had a duty of care to prune the trees, considering the foreseeability of damage to the Applicant’s land as a result of the presence of long, heavy dead branches overhanging from the Respondent’s trees for a sustained period of time, the primary duty of care rested with the Respondent.

5. As a result of balancing these considerations, I have determined that the Respondent shall pay for 65% of the required works and the Applicant shall pay 35%.

Orders

37. The Court orders that:

1. The application is granted, in part.

2. Within 45 days of the date of these orders, the Respondent, at her expense, shall remove Tree 1 and Tree 2, including stump grinding to approximately 300mm below ground level.

3. Within 45 days of the date of these orders, the Respondent, at her expense, shall prune Tree 3, to remove all dead branches in excess of 20mm diameter at the branch collar, plus one particularly overextended live branch, growing over the properties of the Applicant and the Applicant’s west side neighbour.

4. All works in Orders 2 and 3 shall be completed by AQF level 3 arborists with all appropriate insurances, and all pruning shall conform with the guidelines of AS 4373:2007 Pruning of amenity trees.

5. All works shall comply with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work 2016.

6. Upon completion of the works specified in Orders 2 and 3, the Applicant shall pay the Respondent an amount equivalent to 35% of the total cost of the works, within 14 days of receipt of a paid itemised invoice.

7. Should access be required into the Applicant’s property to undertake these works, or for removal of refuse, all reasonable access shall be granted, subject to 72 hours written notice to the Applicant’s Agent, and to the Applicant’s tenant.

8. All works are to be completed during normal work hours.

J Douglas

Acting Commissioner of the Court

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Decision last updated: 24 January 2023