Mahadik v Jones

[2024] NSWLEC 1411

Land and Environment Court

New South Wales

Medium Neutral Citation:

Mahadik v Jones [2024] NSWLEC 1411

Hearing dates:

11 March 2024 and 22 May 2024

Date of orders:

19 July 2024

Decision date:

19 July 2024

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1) Lynn Jones is joined as the second respondent.

(2) The application is granted to the extent of the following orders.

(3) The respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3), with all appropriate insurances, to carry out the following works within 60 days of the date of these orders:

(a) prune the tree to remove all deadwood greater than 40 mm in diameter;

(b) prune the tree to reduce branches over the applicant’s property as shown in photos in Annexure A; and

(c) prune other branches as the arborist sees fit for hazard reduction, removing no more than 20% of total live crown mass.

(4) The works in Order (3) are to be done in accordance with AS4373-2007 ‘Pruning of amenity trees’ and the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.

(5) The respondents are to give the applicant 2 days notice of the works in Order (3).

(6) The applicant is to allow all access required for completion of the works in Order (3) during reasonable hours of the day.

(7) The exhibits are returned, other than Exhibit A.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2 application – neighbouring tree – tree branches have damaged a roof – risk of damage or injury – whether tree removal is required – orders for pruning

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, ss 6, 7, 9, 10, 12

Uniform Civil Procedure Rules 2005, Sch 7

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292

First Class Securities Pty Limited v R Neuhaus [2019] NSWSC 1261

Hinde v Anderson [2009] NSWLEC 1148

Yang v Scerri [2007] NSWLEC 592

Texts Cited:

Australian Standard, AS4373-2007 ‘Pruning of amenity trees’

Campbelltown (Sustainable City) Development Control Plan 2015

Safe Work Australia, Guide to managing risks of tree trimming and removal work (2016)

Category:

Principal judgment

Parties:

Mahesh Mahadik (Applicant)
Carol Jones (First Respondent)
Lynn Jones (Second Respondent)

Representation:

11 March hearing:

Counsel
M Mahadik (Self-represented) (Applicant)
P Duffy (Solicitor) (Respondents)

Solicitors
Duffy Law Group (Respondents)

22 May hearing:

Counsel
M Mahadik (Self-represented) (Applicant)
C Jones (Self-represented) (First Respondent)
L Jones (Self-represented) (Second Respondent)

File Number(s):

2024/22893

Publication restriction:

Nil

Judgment

Background

1. COMMISSIONER: Mahesh Mahadik (the applicant) and Carol and Lynn Jones (the respondents) are neighbours in Ingleburn. The Joneses have lived at 23 Renault Place since building their dwelling in 1987 on the vacant lot they bought a year earlier. A mature grey ironbark (Eucalyptus paniculata) (the tree) stands in their yard next to their eastern boundary, as it did when they purchased their property. Until 2012, the adjoining property to their east (21A Renault Place) was vacant. Mr Mahadik bought 21A Renault Place in 2012 and has lived there since his dwelling was constructed in 2013. Branches and debris have fallen from the Joneses’ ironbark onto Mr Mahadik’s property, causing damage. Mr Mahadik has applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) seeking orders for the Joneses to remove the tree. In his originating application, Mr Mahadik sought no compensation, but did seek the costs of his application.

2. A hearing was held onsite on 11 March 2024. The Court viewed the tree, both properties, and elements of property damage pointed out by Mr Mahadik. The Court heard evidence from Robert de Jong of Arbor Express, an arborist engaged by the Joneses to assess and report on the tree, and submissions from Mr Mahadik and from Mr Duffy, solicitor for the Joneses.

3. The originating application identified Carol Jones as the only respondent. Lynn Jones is Carol Jones’ husband. Both Carol and Lynn Jones own their property and may be affected by any orders the Court makes. Lynn Jones is joined as the second respondent.

4. At the end of the onsite hearing, I reserved my decision.

5. In the days following the hearing, further branches fell from the tree. Mr Mahadik applied to present further evidence to the Court. The Joneses filed a Notice of Motion objecting to any further evidence. At a further hearing on 22 May 2024, I determined to reject the Joneses’ Notice of Motion, and proceeded to hear further submissions from the parties regarding any new evidence. It is in the interest of the parties to have all current issues dealt with, rather than Mr Mahadik making a further application to the Court to present new evidence. I note here that the new evidence arose from a change in circumstances following the first hearing. If not for allowing the evidence as part of these proceedings, Mr Mahadik would be able to make a new application due to the change in circumstances: see Hinde v Anderson [2009] NSWLEC 1148. Considering any changes to the tree within these proceedings will avoid additional costs and time associated with a new application.

Framework for this decision

6. Pursuant to s 7 of the Trees Act, Mr Mahadik applied to the Court for orders to prevent damage to his property and to prevent injury to any person as a consequence of a tree on adjoining land.

7. The order that Mr Mahadik seeks for tree removal is an order that the Court may make according to s 9 of the Trees Act. The Court is not required to make the order sought, but can (at s 9(1)) “…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.” At the second hearing, Mr Mahadik sought an order for compensation. Mr Mahadik also seeks the cost of making his application to the Court. Commissioners of the Court do not have the power to order costs in these proceedings.

8. Before making any orders, the Court must be satisfied of certain matters at s 10 of the Trees Act:

10 Matters of which Court must be satisfied before making an order

(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.

Effort to reach agreement

9. I am satisfied that Mr Mahadik made a reasonable effort to reach agreement, as required at s 10(1) of the Trees Act.

10. Mr Mahadik says he notified the Joneses of damage to his tiles. Mr Mahadik sought mediation through their local Community Justice Centre (CJC).

11. In her affidavit of 6 March 2024 (Exhibit 1), Carol Jones stated that Mr Mahadik had never informed her and her husband of any damage caused by their tree. The Joneses say that they responded to the CJC’s correspondence but were unable to provide a suitable date within the specified timeframe.

12. The Joneses refused Mr Mahadik’s request to remove the tree. He was unsuccessful in seeking mediation with the Joneses. There is little else he could do before applying to the Court, so I am satisfied his effort was reasonable.

13. The timing of the hearing allowed sufficient time from the applicant giving notice of the application until the final hearing. Nothing at s 10(1) of the Trees Act would prevent the Court making orders.

The tree

14. Before discussing the tree, I first consider the merits of the report by the arborist engaged by the Joneses.

15. The report by Mr de Jong is dated 4 March 2023 (Exhibit 3). Mr de Jong holds an AQF level 5 qualification in arboriculture. Although Mr de Jong agreed to be bound by the expert witness code of conduct (the code) at Schedule 7 to the Uniform Civil Procedure Rules 2005 (UCPR), this was not included within the report but was done via a separate note afterwards.

16. In an earlier version of this report, Mr de Jong recommended removal of deadwood from the tree and an aerial inspection of its crown. In this final version, completed following the aerial inspection, he recommended further weight-reduction of several branches.

17. This matter falls within the Court’s Class 2 jurisdiction, in which the rules of evidence do not strictly apply. Nevertheless, if an expert agrees to be bound by the code, then the report is given certain weight that another report might not be given.

18. The belated acknowledgement of the code by an expert might demonstrate that the expert did not prepare the report with the code’s requirements in mind. However, by acknowledging the code later, an expert may demonstrate that their report does comply with the code regardless that they did not acknowledge this within, and at the time of preparing, the report. As Black J observed in First Class Securities Pty Limited v R Neuhaus [2019] NSWSC 1261 (at [10], with my emphasis in bold):

“On the other hand, in Welker v Rinehart (No 6) [2012] NSWSC 160, to which Mr Glasson draws attention, Ball J declined to make an order in respect of three expert reports, following a comprehensive review of the applicable authorities. His Honour noted that in that case the experts had done what is sought to be done here, by swearing a further affidavit indicating that they had read the Code and agreed to be bound by it and that, having read the Code, they confirmed that they held the opinions expressed in the report and did not wish to alter any of them. His Honour referred to several earlier authorities, and to the Court of Appeal’s observations in Hodder Rook & Associates Pty Ltd v Genworth Financial Mortgage Insurance Pty Limited above. In particular, his Honour referred to the observation of Young JA (with whom Beazley JA and Handley AJA agreed) (at [63]) that:

“The Court may consider that the assumed “real risk” [that the expert will have committed to a particular form of opinion from which he or she will not withdraw] is non-existent or minor. If so, in the case where an expert makes an initial report without having the Code in mind and then is shown the Code and swears that in fact he or she did abide by it and now affirms the original report, the evidence should be admitted. Again, if the court can see that he or she is not just rubber stamping the original report, the later report should be admitted into evidence.””

19. Mr de Jong has not complied with the code’s requirements. He has not included details of all investigations. His final recommendation (in Section 8) begins: “Following the aerial inspection of the tree…” Yet in the Scope (in Section 1) he states: “The inspection does not include… aerial inspections.” Mr de Jong undertook a risk assessment of the tree using the Quantified Tree Risk Assessment (QTRA) methodology. He did not clearly explain in the report critical assumptions on which he based his risk assessment. For instance, in answer to a question from me during his oral evidence at the hearing, Mr de Jong explained that he did not take into consideration the risk of branches falling and breaking tiles, as he was only assessing ‘unacceptable’ risk and, in his mind, small branches breaking tiles is ‘acceptable’. He did not identify this assumption in his report.

20. Because Mr de Jong has not complied with the code, his belated acknowledgement of the code, and agreeing to be bound by it, appear more as ‘just rubber stamping the original report’ (see above at [18]). His report is therefore not given the weight of an expert report. In particular, while I rely on Mr de Jong’s report for some general information about the tree, I cannot rely on his risk assessment. In this decision I rely on my own arboricultural expertise and experience, particularly in relation to tree risk.

21. The tree is a grey ironbark (Eucalyptus paniculata) approximately 20 metres tall. It stands in the Joneses’ garden close to the common boundary shared with Mr Mahadik. Its broad crown extends over Mr Mahadik’s property, including above his dwelling. Some dead branches remain in the crown despite recent pruning. Pruning done by the Joneses’ contractor in March 2024 removed more branches over the Joneses’ property than above Mr Mahadik’s property. While the crown’s form is typical for the species, some branches above Mr Mahadik’s property appear overextended, with a higher likelihood of failure than other branches. I noted three branches that, in my opinion, are likely to fail within the next 12 months.

22. The tree appears healthy. I observed no fungal pathogen affecting the tree’s overall condition, as was claimed by Mr Mahadik.

The tree has caused damage to the applicant’s property

23. Mr Mahadik submitted that on 20 September 2023, a branch failed and damaged tiles on his dwelling’s roof and part of the roofs structure. Other intermittent branch failures have damaged tiles.

24. Prior to the hearing, on 9 March 2024, the Joneses engaged contractors to prune the tree. A branch fell and hit Mr Mahadik’s roof, damaging tiles. In an email to the Court on 10 March 2024 (Exhibit C), Mr Mahadik wrote: “I request that you issue an order against the neighbour to repair any damage caused to my roof as a result of their actions.” The application was not amended to include any such orders and Mr Mahadik did not send the email to the Joneses. Attached to the email were photographs showing the branch and broken tiles on Mr Mahadik’s roof.

25. Mr Mahadik provided photographs showing several examples of branches on his roof and broken roof tiles.

26. Roof tile damage resulted in water damage internally, to the ceiling. Mr Mahadik provided photographs showing water damage to the ceiling.

27. An insurance claim lodged by Mr Mahadik for water damage was denied. A letter from his insurer (in Exhibit B) noted maintenance issues at his property, including debris in roof gutters restricting water flow and causing water ingress. The insurer informed Mr Mahadik that he must replace broken tiles, remove all debris from roof gutters and valleys, and make his home watertight.

28. At question 14 of his application (Form H, Exhibit A) Mr Mahadik wrote: “I don't expect any compensation, but I would appreciate it if they could remove the tree. I've never asked my neighbour to pay because I value our good relationship.”

29. In Mr Mahadik’s Notice of Motion filed on 8 April 2024, seeking re-opening of the matter for further evidence, Mr Mahadik also sought orders of compensation of $4,210 for repairing damaged tiles ($310), roof guttering ($2,500), security cameras ($200) and internal items such as the ceiling, a mattress, a mattress cover and a bedsheet (together $1,200). A video included with his affidavit showed water ingress to his dwelling’s ceiling.

30. Mr Mahadik also claims that debris from the tree has damaged his roof gutters and tainted water in his water tank.

Findings

31. Mr Mahadik’s photographs show that most branch failures he recorded were dead branches. However, some live branches have fallen, including the branch that fell onto the roof during the pruning of the tree in March 2024. Considering the branches’ sizes and their fall distance, I accept that they damaged roof tiles as shown in Mr Mahadik’s photographs.

32. The tree has caused damage to the applicant’s property: see s 10(2)(a) of the Trees Act.

33. Other claims of damage made by Mr Mahadik, including damage to guttering from debris build-up, water damage to his dwelling and belongings, and tainted water in his water tank, are considered further below. They might best be described here as indirect damage.

The tree is likely to cause damage in the near future

34. Mr Mahadik claimed he is unable to use two car spaces in his driveway due to the risk of branches falling into this area. He provided no evidence that cars have ever been damaged.

35. Mr Mahadik submitted that branches will continue to fall and damage his property. He is concerned that the whole tree will fall onto his dwelling.

Findings

36. I described above the nature of the tree’s crown and the likelihood of three overextended branches failing within the next 12 months. As per the principle in Yang v Scerri [2007] NSWLEC 592 (at [14]), I consider that the next 12 months represents ‘the near future’ at s 10(2)(a) of the Trees Act. Those three branches are likely to hit Mr Mahadik’s dwelling, and are large enough to break tiles.

37. I have not relied here upon Mr de Jong’s risk assessment, where he found the tree had a 1/1,000,000 risk of harm, which included consideration of damage to property.

38. The tree is likely in the near future to cause damage to the applicant’s property: see s 10(2)(a) of the Trees Act.

39. Other branches are not likely to fall in the near future. I observed no defects in the tree’s stem or root buttress that would suggest that whole tree failure is likely in the near future.

The tree is not likely to cause injury

40. Mr Mahadik opined that he and his family members have experienced ‘near misses’ from branch failure. He is concerned also that the tree could collapse onto the dwelling.

41. In his affidavit of 28 February 2024 (Exhibit B) Mr Mahadik expressed his frustration with the amount of leaf litter from the tree that accumulates on his property. He opined that it poses a severe safety hazard. Mr Mahadik mentioned a neighbour who suffered back injury when they slipped on leaves from this tree.

42. Mr Mahadik claimed that the tree causes him anxiety.

Findings

43. Due to their low use of the area beneath the tree, I consider it unlikely that members of Mr Mahadik’s family will be injured by falling branches. Whole tree failure is unlikely. I find the tree is unlikely to cause injury to a person: see s 10(2)(b) of the Trees Act.

44. The risk of injury resulting if people slip on debris from the tree is considered below.

Consideration of matters at s 12

45. I found above that the tree has caused, and is likely in the near future to cause, damage to Mr Mahadik’s property. The Court can make orders ‘as it thinks fit’ to remedy, restrain or prevent damage to property as a consequence of the tree (s 9 of the Trees Act). To determine what orders might be appropriate, the Court must consider the matters at s 12.

Location

46. The tree is close to the boundary and overhangs Mr Mahadik’s property and dwelling.

Consent requirements

47. The tree is a declared tree under Part 11 of the Campbelltown (Sustainable City) Development Control Plan 2015 (the DCP). Exemptions from permit requirements at Part 11, Section 11.3 of the DCP include:

“For trees and shrubs greater than 5m in height:

Pruning is undertaken by a suitably qualified arborist in accordance with Australian Standard AS4373-2007 Pruning of amenity trees and no more than 10 percent of the canopy cover is pruned annually, and

The pruning specification prepared under Australian Standard AS4373-2007 is held by the landholder for a period of two years.”

The tree’s values and benefits

48. The tree has inherent values and provides benefits, including ecosystem services. It is locally indigenous, so is part of the local vegetation community. It contributes to public amenity.

49. The tree has value for the Joneses. It was there when they purchased their property. It has been part of their landscape for some 38 years, and part of the broader landscape for longer. They value its shade, cooling, appearance and habitat value. They say that they use the garden and are not concerned about falling branches as they have not experienced any near misses.

Actions and omissions of the parties

50. The Jones engaged contractors to prune the tree in or around early 2014 and again in March 2024 after receiving a copy of Mr Mahadik’s application and prior to the onsite hearing. I note that the recent pruning has removed more branches over the Joneses’ property than over Mr Mahadik’s property.

51. Further evidence provided by Mr Mahadik at the 22 May 2024 hearing showed broken tiles, which, according to Mr Mahadik, were broken when a branch fell on 13 March 2024, two days after the first hearing. He stated (in Exhibit D) that water damage occurred on 17 March 2024. Mr Mahadik was apparently aware of the broken tiles on 13 March 2024, so had not taken any action to prevent water ingress in the 3–4 days prior to water ingress. If I am to accept that the tree caused the water damage, I would not order compensation for that damage due to Mr Mahadik’s failure to take reasonable action to prevent the damage.

52. Other elements of Mr Mahadik’s belated compensation claim appear to apply to elements of earlier damage for which he had stated in his original application he did not seek any compensation.

53. For the reasons set out here, when I consider below the appropriate orders to make, I find it would not be appropriate to order compensation.

54. Mr Mahadik has claimed that debris from the tree collected in his gutters, resulting in water ingress to his dwelling and internal damage. The debris, he opined, damaged his gutters and contaminated water in his water tank. He worries that someone will slip on debris that accumulates on the ground. He complained that cleaning up the debris is onerous.

55. The Court established the following principle in Barker v Kyriakides [2007] NSWLEC 292 (at [20]):

“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.”

56. The Joneses’ tree is nothing out of the ordinary. It sheds the usual amount of leaves, twigs, flowers, fruit and seeds that is expected for such a tree. The extent of property maintenance beneath the tree is nothing unusual. For these reasons, I find that any property damage or injury resulting from a lack of property maintenance is something that Mr Mahadik can prevent on his property.

To prune or remove the tree

57. Pruning the tree to remove deadwood and hazardous branches would minimise the risk of damage or injury without any adverse impacts to the tree. Removing the tree would be disproportional to the risk. I find that orders for pruning the tree would be appropriate. I will provide photographs in an annexure to this decision indicating the pruning to be ordered.

Conclusions

58. The Joneses’ grey ironbark has caused damage to Mr Mahadik’s property and is likely to cause further damage in the near future. The tree has inherent values and provides benefits to the Joneses and to the broader environment. The risk of future damage can be mitigated by pruning the tree to remove hazardous branches. Tree removal is not required. For reasons explained above, no compensation will be ordered.

Orders

59. The Court orders:

1. Lynn Jones is joined as the second respondent.

2. The application is granted to the extent of the following orders.

3. The respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3), with all appropriate insurances, to carry out the following works within 60 days of the date of these orders:

1. prune the tree to remove all deadwood greater than 40 mm in diameter;

2. prune the tree to reduce branches over the applicant’s property as shown in photos in Annexure A; and

3. prune other branches as the arborist sees fit for hazard reduction, removing no more than 20% of total live crown mass.

4. The works in Order (3) are to be done in accordance with AS4373-2007 ‘Pruning of amenity trees’ and the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.

5. The respondents are to give the applicant 2 days’ notice of the works in Order (3).

6. The applicant is to allow all access required for completion of the works in Order (3) during reasonable hours of the day.

7. The exhibits are returned, other than Exhibit A.

D Galwey

Acting Commissioner of the Court

22893.24 Annexure A

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Decision last updated: 19 July 2024