Ludevig & Cramer v Howard

[2008] NSWLEC 1340

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:
Ludevig & Cramer  v  Howard [2008] NSWLEC 1340

PARTIES:
APPLICANT
Sabine Ludevig and Daniel Cramer 

RESPONDENT
Robyn and Ken Howard

FILE NUMBER(S):
20671 of 2008

CATCHWORDS:
Trees (Neighbours) :- Removal of tree, damage to property, risk of injury to persons

LEGISLATION CITED:
Trees (Disputes Between Neighbours) Act 2006

CORAM:
Thyer AC

DATES OF HEARING:
12/08/2008

EX TEMPORE DATE:
12 August 2008

LEGAL REPRESENTATIVES

APPLICANT
Ms S Ludevig and Mr D Cramer, litigants in person

RESPONDENT
Mrs R Howard and Mr K Howard, litigants in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Thyer AC

12 August 2008

20671 of 2008

Sabine Ludevig & Daniel Cramer  v  Robyn & Ken Howard

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1. ACTING COMMISSIONER:  Mariana Close is situated in a rocky, damp gully at the eastern edge of St Ives.  There is a large natural rock overhang at the end of the street where the water drip keeps moss and ferns green.  The view is dominated by remnant forest trees and native bushland.  Although significant engineering has been necessary to construct houses in this landscape, those houses are well screened by the trunks and canopies of the trees.

1. The Howards bought their property at 4 Mariana Close more than 40 years ago with the driveway graded and compacted on the uphill side of a large Blackbutt tree (Eucalyptus pilularis).  They had the driveway and carparking area concreted in about 1973, the edge of the concrete being within about 0.3 m of the trunk of the tree.  The Angophora (Sydney Red Gum, Angophora costata) growing a few meters down slope of the Blackbutt is thought to be at least 30 years old.

1. Mrs Ludewig and Mr Cramer bought 2 Mariana Close in 2000.  The property is located to the north and downhill of the Howards.  The Ludewig and Cramer house is situated close to the common boundary with the Howards, about 3 m from the Angophora and about 7 m from the Blackbutt.  Both trees overhang the Ludewig and Cramer house by about 10 m.

1. In 1987 the previous owners of 2 Mariana Close extended the house to its present location under the trees.  That work included excavation of the hillside possibly up to 10 m deep near the boundary, about 6 m from the Blackbutt.  The excavation caused collapse of the embankment under the Howards’ carport, leaving the concrete slab suspended in air.  A large retaining wall was constructed to support the carport.  The Howards claim that the ground around the Blackbutt and Angophora did not collapse even though it is only about 5 m from the carport, and credit the Blackbutt with keeping the ground in that area stable.  The Howards also claim that the Blackbutt has not changed much in the last 20 years, and that it has had the same slight lean for all of that time.  The Howards had new concrete laid over the existing driveway and carport in 2004.

1. In 2004 a treeworker on the Ludewig and Cramer property advised them that the Blackbutt tree ‘grows at an odd angle at the top, which usually is due to soil erosion’.  He suggested ‘immediate heavy pruning because of its huge branches hanging directly over’ the house.  He also recommended removal of the Angophora while it is not fully grown.  They informed the Howards of these opinions on the same day but no pruning or removal was done.

1. Ludewig and Cramer had the tree looked at by Ku-ring-gai Council in 2005 after a falling dead branch damaged their pool fence, and received advice to apply for pruning and to keep an eye on the tree for possible movement.  The tree was also inspected by three ‘arborists’ in May and June 2008, two of these arranged by the Howards.  The ‘arborists’ were in agreement that ‘the tree is potentially dangerous and ideally should be removed, which would include removal of the Angophora for access purposes.’  They also alerted Ludewig and Cramer to ‘a big crack in one of the huge main branches, which hangs directly over our bedrooms’.  No written reports were provided from these inspections.

1. Ludewig and Cramer seek orders that the Angophora be removed and that the Blackbutt be removed or heavily pruned depending on expert advice, at the owner’s cost.  At the hearing they accepted the recommendations of Mr Hill’s report with regard to pruning of deadwood and the condition of the branches, but did not feel satisfied that the report adequately addressed the stability of the trees in the ground.

1. The Howards obtained a written report dated 1 August 2008 from qualified arborist Mr Hill.  That report assessed both trees as ‘being generally of good health and vigour’ and an asset due to their ‘significant contribution to site stability’.  The report also stated that both trees had ‘long term deadwood’ of greater than 75 mm diameter.  Aerial inspection of the Blackbutt revealed the ‘crack’ to be ‘bark splitting’ not splitting of ‘structural woody tissue’, and ‘no structural defects were noted at or close to major trunk/branch junctions’.  Areas of bark damage attributed to cockatoos were also observed in the canopy. 

1. Mr Hills report recommended pruning of dead/dying branches greater than 75 mm diameter from the Blackbutt and greater than 50 mm diameter from the Angophora, monitoring of the trees by photographs from fixed points at six monthly intervals and keeping a record of tree incidents, and two yearly inspections and written reporting by a consulting arborist.

1. When assessing an application under the Trees (Disputes Between Neighbours) Act 2006  the Court must be satisfied that one or more of the four tests in s 10(2) (a) and (b) of the Act are met by each tree before making an order regarding that tree.  These tests are:

   Has the tree caused damage to the applicant's property ?
   Is the tree now causing damage to the applicant's property ?
   Is the tree likely in the near future to cause damage to the applicant's property ?
   Is the tree likely to cause injury to any person?

2. Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of:

   Is the damage or risk sufficiently serious to warrant the Court intervening?
   If so, what should the Court order?
   Who should pay to carry out those orders?

   The trees

3. The Blackbutt is described as having height of 24 m, spread of 15 m and trunk diameter of 0.7 m on a land survey dated 13/12/01 held by the Howards.  Having observed the tree at the hearing I find no reason to disagree with the dimensions of the tree shown on the survey, nor Mr Hill’s assessment of the tree.

1. The Angophora has suppressed height, growing under the canopy of the Blackbutt, and appears to be in good condition and otherwise as described in Mr Hill’s report.

   Damage and likelihood of injury

2. A dead branch of about 70 – 80 mm diameter and 2.5 m length fell onto and damaged the pool fence of 2 Mariana Close in 2004.  Ludewig and Cramer assume that the branch was from the Blackbutt as no other nearby tree has deadwood of that size.  I accept that the branch was from the Blackbutt and therefore that the Blackbutt has caused damage to the applicants’ property, meeting the first test in s 10 (2) (a) of the Act.

1. I understand Mr Hill’s report to recommend pruning of dead wood from both trees on the basis that to leave the deadwood would make risk of damage or injury likely.  I accept that damage may not be likely to be caused by falling deadwood in the near future, but there is a likelihood of injury from falling deadwood at some time in the future, thus meeting the test in s 10 (2) (b) of the Act for both trees.

Considerations

1. Although each tree satisfies at least one test in s 10(2) of the Act, I am required to consider matters in s 12 of the Act before determining the application.

1. Under s 12 (c) and s 12 (d) of the Act, I find that the trees are of local cultural value providing the bushland character that typifies the suburb, and being remnant and self-grown species which are an integral part of the native flora and fauna ecosystem that exists in this suburban area and links with the nearby national park..

1. Under s 12 (e) and s 12 (f) of the Act, I find that the trees contribute to the natural landscape and scenic values of both the Howard and Ludewig and Cramer properties.  The trees are also visible from surrounding properties and make up part of the woodland canopy of the suburb, contributing to the scenic values of the local area.  The trees also provide intrinsic value through local climate amelioration, oxygen production and carbon sequestration.

1. Under s 12 (h) and s 12 (i) of the Act, I consider that the excavation and embankment collapse caused by the previous owners of 2 Mariana Close may have had some effect on the rootzone of the trees and may have contributed to deadwood in the trees, especially the Blackbutt.  I also consider that the Howards have now shown a willingness to responsibly manage the trees by obtaining a written report from a qualified arborist, agreeing at the hearing to carry out the pruning work recommended in that report, and also agreeing to allow the tree to be drilled by a suitably qualified pest inspector to find if there are termites in the tree.

   Conclusion

2. I find no reason to order removal of the trees or pruning in excess of that recommended in Mr Hill’s report.   Therefore I refuse the application for removal of the Angophora and removal or heavy pruning of the Blackbutt.  However, I recognise the concerns of Ludewig and Cramer that it has taken since 2004 for the Howards to have the tree inspected and a report written by a qualified arborist, and that they deserve certainty that the recommended pruning work will be carried out.  I also recognise their concerns that the report does not describe the stability of the site and the trees in the ground in a manner that gives them comfort.  For these reasons I will order that the Howards carry out pruning of deadwood and one crossing branch, and that they obtain further written advice from Mr Hill regarding stability of the trees and the site.  

Orders

1. The Orders of the Court are:

   A. The application is upheld, in part;

   B. 1)The Howards shall prune out all dead wood having a diameter greater than 20 mm from both trees, and the crossing branch from the Blackbutt identified in Mr Hill’s report, by 31 October 2008, at their cost;

   2)  All pruning shall be done by an arborist with AQF Level 3 qualifications and suitable insurances, and be in accordance with AS 4373 2007 Pruning of amenity trees;

   3)  All debris from the pruning work shall be removed from the Ludewig and Cramer property at the Howards’ cost;

4) The pruning work shall take place on normal work days within the hours 7.00 am – 6.00 pm Monday to Friday and 7.00 am – 1.00 pm Saturday;

5) Ludewig and Cramer shall permit access to their property for the purpose of the above pruning provided that access is on reasonable notice and at reasonable times, and Ludewig and Cramer are able to supervise that access;

C. The Howards shall obtain a written statement from Mr Hill clarifying his opinion on the stability of the site and the Blackbutt and Angophora trees in the ground including his opinion on what else if anything should be investigated in this regard.  This statement shall be at the Howards’ cost, and a copy given to Ludewig and Cramer by 31 October 2008.

___________________

Peter Thyer
Acting Commissioner of the Court