Norman v Symonds

[2024] NSWLEC 1847

Land and Environment Court

New South Wales

Medium Neutral Citation:

Norman v Symonds [2024] NSWLEC 1847

Hearing dates:

19 June 2024

Date of orders:

19 June 2024

Decision date:

19 June 2024

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

The Court orders that:

1) The respondents, at their expense, shall employ a licenced pest controller to investigate the Eucalyptus tree for the presence of an active termite nest and exterminate termites from the tree. These works shall be completed within 45 days of the date of these orders.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – overhanging tree – fungal bracket – apprehension of damage and injury – dead sticks falling onto applicant’s land

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006,

Pt 2, ss 7, 8, 9, 10, 12

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292

McPherson v Lake [2017] NSWLEC 1081

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

Category:

Principal judgment

Parties:

Susan Norman (Applicant)
John Symonds (First Respondent)
Claudia Symonds (Second Respondent)

Representation:

S Norman (Self-represented) (Applicant)
J Symonds (Self-represented) (First Respondent)
C Symonds (Self-represented) (Second Respondent)

File Number(s):

2024/141332

Publication restriction:

Nil

JUDGMENT

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

Background

1. COMMISSIONER: For about 53 years, Susan Norman (the applicant), has resided at her property in Huskisson, which shares a side boundary with the property of John and Claudia Symonds (the respondents). The respondents have owned their property for about 24 years and lease it for short stay accommodation. A Southern Mahogany (Eucalyptus botryoides) (the tree) was located in the respondents’ front yard about 2.5 metres (m) from the common boundary and about 1 m from the respondents’ front boundary. A substantial Wattle tree that had grown around the tree’s trunks was dead and deteriorating.

2. In her Statement of 1 June 2024, Ms Norman contended that the tree’s branches extending over the common boundary persistently dropped dead sticks onto her land. Ms Norman said she paid for removal of overhanging branches many years ago and on 8 February 2024, she sought a quote for similar overhanging branch removal. Ms Norman claimed that Dylan Smith from A&D Tree Services, upon inspecting the tree on 12 February 2024, “informed me the eucalyptus had Bracket Fungi rot and in strong windy conditions had dangerous potential risks falling onto properties”. Ms Norman said Dylan attempted to contact the respondents on her behalf to discuss his findings but received no reply.

3. Next, Ms Norman contacted Chris at Assured Tree Solutions, who provided a tree removal quote on 26 February 2024 for $2,860.00. The quote noted that the “tree has bracket fungi which is an indication of rot”, … and co-dominant stems. The quote included a comment that “co-dominant stems tend to fail much more often than others, especially in storms”, and recommended tree removal. Ms Norman said Mark from CSI Pest Control verified a “termite infestation” in her dwelling on 1 March 2024, that Mark “agreed with arborists findings” and said the tree had a “possibility of termite infestation”. Ms Norman claimed that Endeavour Energy tree workers “also agreed with arborists findings” and said, there “would be no issue to remove it”, had the tree been on the footpath rather than private land.

4. The applicant noted details of various calls and texts sent to the respondents between 28 February 2024 and 2 March 2024, with no replies. Local members of parliament Ms Norman contacted were unable to help her, but Shoalhaven City Council (Council) advised the applicant to contact Community Justice. On 5 March 2024, Ms Norman contacted a Community Justice Centre (CJC) to propose mediation with the Symonds’. On 6 March 2024, Ms Norman emailed Ms Symonds via her short stay accommodation address and on 8 March 2024, she requested that the CJC director send the mediation proposal to Mr and Ms Symonds.

5. On the morning of 12 March 2024, Mr Symonds visited the applicant and discussed her issue with the tree. Ms Norman contended that Mr Symonds said he would not remove the tree because he thought it looked healthy and that all trees have fungi. Ms Norman claimed Mr Symonds would not pay Assured Tree Solutions to remove the tree but would allow removal of the trunk closest to the applicant’s property, at Ms Norman’s expense.

6. Ms Norman rejected this proposal as “the arborist had informed me that would leave (the) remaining stem weaker and possibility to fall on premises”. Ms Norman said she was convinced and believed, on the basis of the tree’s appearance and “evidence provided by arborists that this tree has large bracket fungi rot and infested with termites”, that the tree “causes concern of potential damage to safety of persons and property”. Further, the applicant claimed she couldn’t nor shouldn’t have to fund the tree’s removal, as it was not her tree. Nonetheless, Ms Norman remained worried about the tree causing damage or injury in both parties’ properties.

7. Consequently, on 16 April 2024, Ms Norman made an application, pursuant to s 7 of Pt 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act), proposing the Court make orders for the removal of the Eucalyptus tree from the respondents’ neighbouring property, based on an expectation of trunk failure, damage to property, and risk to persons.

The onsite hearing

8. Both parties were self-represented at the onsite hearing. As is customary, the hearing commenced with an inspection of the tree and the site. Both properties had low front and side fences which provided for simultaneous consideration of the entire site, including potential damage or injury on Ms Norman’s land. Ms Norman identified where sticks and leaves dropped from the tree and said sticks impacting the common boundary fence made noises which alarmed her.

9. The tree was mature and appeared likely to have been in situ for many decades. It was about 13 m tall, with an irregular canopy which spread about 12 m. About 600 mm above ground level, the tree’s trunk bifurcated, above which one trunk grew back over the respondents’ land while the other trunk, which contained a large fungal bracket, grew towards and above the applicant’s front boundary. Using the terminology from Ms Norman’s application, the ‘forward’ trunk with the fungal bracket was named Stem 1 and its canopy branched and spread over parts of both properties and the nature strip. Prior to the hearing, Mr Symonds had removed the dead Wattle and weedy vegetation from around the tree.

10. Mr Symonds advised he was a builder and said he had also pruned branches from the tree that were extending towards both Ms Norman’s dwelling and his own and would prune branches a bit further back from Ms Norman’s land if required. Mr Symonds opined that if Stem 1 broke and fell, it was likely to fall along Ms Norman’s fence line.

11. Ms Norman said the respondents had not answered multiple CJC mediation requests and submitted the respondents did not see or appreciate the extent of sticks that fall from the tree onto her yard because they don’t live there. Ms Norman claimed that cars parked under the tree had been hit by falling branches but provided no evidence in substantiation. Ms Norman contended the tree’s trunks were separating, and the tree harboured termites and presented a bushfire risk.

12. Pursuant to orders made at the procedural hearing of 28 May 2024, with respect to Order 5, Ms Norman noted that her Tree Dispute Application contained two genuine arborist assessments and that it was “impossible at this time to enlist a level 5 arborist”, the required arborist qualification specified in the order. With respect to Order 9, the applicant noted that Thelma Marr, Council’s Senior Environmental Health Officer, contacted the Court on 31 May 2024, to advise that Council does not participate in tree disputes between neighbours. Ms Norman claimed that Ms Marr “stated that the arborists reports obtained state the tree is at risk and would be enough expert advice submitted to the court and should be taken into account… This means that the reports will speak for themselves as supporting the case from the facts of health and risk of the tree and that the arborists reports have identified white ant and bracket fungus is an indication that the tree may be undermined and present a risk.”

Jurisdictional requirements

13. With respect to s 7 of the 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. The application meets these requirements.

14. The applicant provided evidence of satisfaction of s 8 of the Act, which requires notice of the application for orders to be given to owners of affected land, and to Council. Both parties attended a preliminary hearing on 28 May 2024.

15. Section 9(1) of the Act details the Court’s broad jurisdiction to make 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.”

16. Pursuant to s 10, s 10(1)(a) of the Act requires the applicant to make a reasonable effort to reach agreement with the owner of the land on which the tree is situated. Ms Norman provided evidence of multiple contact attempts to Mr and Ms Symonds and attempts to mediate through a Community Justice Centre. While the applicant’s contact attempts were made over a period of just a few weeks, I acknowledge that Ms Norman reasonably considered that urgent action was required. Further, Mr Symonds refused to consider intervention with the tree except at Ms Norman’s expense. Consequently, s 10(1)(a) of the Act is engaged. Section 10(1)(b) was also satisfied as Ms Norman provided evidence of appropriate service of the application and proposed orders to the Symonds, and Council.

17. 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:

(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.

The tree’s health and structure

18. In the Assured Tree Solutions’ tree removal quote, Chris advised Ms Norman that the “tree has bracket fungus which is an indication of rot” and the “tree also has co-dominant stems”, which “tend to fail much more often than others, especially in storms”. Dylan Smith from A&D Tree Services had already advised Ms Norman that the tree had “Bracket Fungi rot” and was a risk of falling onto properties. In a letter to Ms Norman dated 21 March 2021, Mr Smith suggested “involving a level 5 arborist to determine how badly (the trunk) has decayed”. Mark from CSI Pest Control suspected the tree contained termites and “also agreed with arborists findings”. Given the consistency of this advice, and Ms Norman’s pre-existing concerns about the tree, it is unsurprising that the applicant considered urgent tree removal was required.

19. The tree indeed had a fungal bracket and co-dominant stems. However, based on the arboricultural expertise I bring to the Court, I am not satisfied that either factor is causing marked structural weakness or risk of tree failure, for the following reasons.

Fungal bracket

20. The fungal bracket is the fruiting body of a wood decay fungi which emerged after internal wood had been broken down and consumed by fungal mycelium (akin to roots). Until the early 1980’s, tree surgeons, as we were then known, generally had little knowledge or appreciation of trees’ natural functions and processes and an accepted practice was to remove a tree with a fungal bracket, unequivocally. Over the last 40 years, however, arborists and academics worldwide have cumulatively formulated a comprehensive science-based body of knowledge and enquiry, and international risk assessment qualifications which provide foundations and guidance for tree assessment.

21. In order to survive for decades, centuries, or longer, trees possess a range of responses to injuries so as to maintain structural integrity after wounding. Southern Mahogany is a long-live species. The Symonds’ tree was around mid-lifecycle and appeared healthy. Probably between ten and twenty years ago, the tree was wounded near the fungal bracket’s location, perhaps by a branch torn off the trunk in a storm, or lightning, or by some other vector that removed protective bark. Spores of wood decay fungus, ever-present in the air, colonised the wound. Over time the fungi penetrated and consumed wood. Dead heartwood is usually consumed initially. The tree responded with chemical and physical barriers that limit the spread of decay. Simultaneously, the tree progressively established extra wood, termed ‘reaction wood’, which thickened and strengthened the trunk when and where required, to compensate for strength reduction caused by decay of internal wood by fungus, thus maintaining structural integrity.

22. The deadwood face of the original wound from which the fungal bracket emerged was recessed within the tree by about 250 mm. This suggested that the trunk had increased in diameter by about 500 mm (250 mm radius x 2) at this location since the original wounding event. Images 2 and 3 in the Application Claim Details (Form H) displayed active compensatory trunk thickening around the wound and fungal bracket, and down the trunk below the fungal bracket. This reaction wood was similarly visible on site.

23. Though trees endeavour to limit the spread of all wood decay fungi, the tree’s strongest wall (or barrier zone) prevents decay moving into new tissue produced subsequent to wounding. In this case, the outer ‘donut shaped sleeve’ of trunk wood about 250 mm thick, produced since the tree was wounded. Based on the uniform appearance of the compensatory trunk thickening around the fungal bracket and down the trunk, it was likely that the centre of the trunk was extensively decayed and perhaps ‘piped out’, but the tree’s barrier zone had successfully restricted decay from entering surrounding live tissue, and required trunk strength was maintained.

Co-dominant stems

24. Co-dominant stems commonly occur on trees and most co-dominant stems are structurally sound. However, some co-dominant junctions are characterised by a structural weakness termed included bark, where bark grows within the junction, thus reducing the area and strength of attachment between the stems. Annotated diagrams showing and explaining the distinction between co-dominant junctions with included bark and structurally sound co-dominant junctions with extruded bark were published in the Australian Pruning Standard in 1996 and again in the 2007 revision (AS4373:2007 Pruning of amenity trees). Nonetheless, many tree workers remain unaware of this critical distinction and often erroneously consider all co-dominant stems faulty.

25. I was satisfied the junction between the trunks was extruded and structurally sound. It did not exhibit any bark inclusion.

Termites

26. Termites were active on the surface of the lower trunk and slits in the trunk beneath termite workings in the bark indicated possible activity within the trunk. Termites favour wood decayed by fungus as it is easier to digest than solid wood. Just as the trunk developed extra thickness (reaction wood) to compensate for strength reduction from fungal decay, uniform reaction wood had developed around the base of the tree and co-dominant junction in response to strength reduction from fungal decay or termite activity. Healthy, vigorous trees respond to strength reduction regardless of its cause, and the tree appeared to be successfully compensating with active reaction wood.

27. Nonetheless, the termite activity introduced a level of unpredictability and consequent risk of injury requiring mitigation, as addressed below at [32].

Tree health and structure - Summary

28. With the benefit of four consecutive years of above average rainfall enhancing its health, the tree appeared to be successfully compensating for fungus induced reduction in internal trunk strength through active production of clearly visible reaction wood. The co-dominant junction appeared structurally sound, and both the junction and the base of the tree also exhibited recent reaction wood which was uniform and appropriately rounded. Though the termite activity introduced an element of uncertainty into the tree’s prognosis, it was the erroneous advice Ms Norman received that prompted her alarm and urgency, not a trunk or branch failure in the tree.

29. Since meeting with Ms Norman, as well as removing the dead Wattle, Mr Symonds had extensively pruned the tree, including removal of deadwood and a distinct reduction of the length of main branches extending towards both parties’ dwellings. The pruning had reduced leverage on the branches and trunk due to gravity, and the reduced canopy area incurred less wind impact. Consequently, the pruning had significantly reduced the likelihood of branch or trunk failure and risk of injury to persons. Although I was satisfied the tree was currently structurally sound, the risk mitigation provided by the pruning had added a buffer accounting for uncertainty regarding the extent of termite activity within the tree. Based on the extent, nature, and currency of reaction wood around the tree’s base, I was satisfied the tree was growing with sufficient vigour to produce further strengthening reaction wood as required, and that uncertainty would be markedly reduced through treatment of the termites.

Dropping debris

30. As many applications include claims of damage, annoyance, and excessive maintenance resulting from neighbours’ tree debris, the following Tree Dispute Principle was established in Barker v Kryiakides [2007] NSWLEC 292 (Barker); 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, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering the removal of or intervention with an urban tree”.

31. Though the applicant disliked the dead branches and other debris that fell from the tree, Ms Norman submitted no evidence of damage caused by such debris. Consequently, no remedy is available under the Act and the sticks and debris are covered by the expectation of reasonable maintenance arising from the Tree Dispute Principle in Barker.

Risk of injury to persons

32. The applicant claimed the tree presented a risk of injury to persons in both front yards and dwellings and on the front nature strip. Based on the decision in McPherson v Lake [2017] NSWLEC 1081 (McPherson), at [10], the Court assesses the risk of injury posed by a tree in the foreseeable future based on the characteristics of the tree, the history of any failures, any other relevant evidence, and the circumstances of the site apparent at the time of the hearing.

33. I assessed the tree as healthy, vigorous, and appearing structurally sound above ground. I saw no signs of soil cracks or raised mounds that may indicate problems with root anchorage. The tree was not senescent nor approaching the end of its lifespan. Rather, it was at mid-maturity. There was no report of past failures of trunks or branches, or impact by fallen branches, or near misses. The tree is located in a quiet suburban area with infrequent pedestrian traffic. Although pedestrian traffic would increase in summer, the human occupancy rate in the ‘target zone’ under and near the tree’s canopy is likely to be occasional during average weather conditions. Reliable research evidence shows that during storms and high winds, the conditions under which Ms Norman anticipated the tree to fail, the average frequency of human outdoor activity drops dramatically and is likely to be rare to negligible under or near the tree.

32. A further consideration with tree risk assessment is protection from impact and injury provided by dwellings or other buildings. Considering the weight distribution of Stem 1, I concur with Mr Symonds that in the unlikely event of failure, the trunk was likely to fall roughly parallel with the fence line, probably with little consequence. Further, I am satisfied that the pruning works by Mr Symonds reduced the extent of branches overhanging Ms Norman’s roof and mitigated risk that may result from branch breakage. Even if the now shortened branches extending towards the applicant’s dwelling broke in a major storm, the branch length relative to the distance from the tree to the applicant’s dwelling would likely result in impact by the tip of the branch only, from which Ms Norman’s dwelling would provide protection.

33. In adducing the elements listed in McPherson, the tree would be considered a low risk. I am satisfied, however, that the uncertainty and unpredictability arising from the termite activity presented sufficient risk of injury to persons to engage s 10(2)(b) of the Act.

34. With s 10(2) of the Act satisfied, s 9 empowers the Court to make any order it sees fit to remedy, restrain or prevent damage to property or injury to persons. If orders are to be made, the Court must consider relevant discretionary matters at s 12.

Discretionary matters – s 12

37. The tree is located at the front of the respondents’ property near the nature strip, and about 2.5 m from the common side boundary (s 12(a)).

38. While excessive pruning of live foliage from this mature tree risked compromising its health, the tree appeared to be healthy and vigorous, and the pruning mitigated both risk and nuisance deadwood for Ms Norman (s 12(b2)).

39. The tree provides protection from sun and wind (s 12(b3)).

40. In Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (Robson), Preston CJ provided commentary on environmental considerations under s 12 of the Act; at [203]:

“203 The matters concerning the values of the tree and its environmental contribution are notable additions to the matters recommended by the Law Reform Commission in its report. The Law Reform Commission report was relatively quiet about environmental factors, in contrast to the earlier discussion paper which had emphasised the environmental values of trees. The legislature, however, took a different view and required the Court to consider environmental factors. This was a point specifically made in the second reading speech:

“The provisions that require the Court to consider environmental factors prior to making an order are in recognition of the importance of urban trees as an environmental asset. Urban trees play a proven environmental role in every urban society. They provide energy savings through lower cooling costs, reduce stormwater run-off, help reduce salinity and provide aesthetic and social benefits associated with being in proximity to nature. The bill therefore recognises the environmental contribution of urban trees as a factor that the court must take into consideration in determining applications.””

41. As Southern Mahogany are one of the dominant endemic tree species in this region, the tree’s flowers, fruit, trunks, and branches may be expected to provide food and shelter for local fauna. Southern Mahogany’s may live for centuries in ideal conditions and the tree was mature and long established. Therefore, as the tree matures further, it is likely to make an important and increasing contribution to the local ecosystem and biodiversity (s 12(d)).

42. The tree provides intrinsic public amenity due to its location next to the nature strip (s 12(f)).

Conclusion

43. Though the tree had a large fungal bracket on Stem 1, reaction wood around the fungal bracket was appropriately bulky and evenly rounded and was thick and uniform down the trunk. The rich colour and elasticity of the bark and the extension growth of the stems indicated the tree was growing strongly. The locations and pattern of the reaction wood (the tree’s body language) suggested Stem 1 was structurally sound.

44. The co-dominant junction between the trunks appeared extruded, sound, and strong and there was no indication of included bark. As with the trunk, the base of the tree had actively thickened around and between the trunks through reaction wood development. No evidence was submitted of the tree having caused damage or suffering a major branch failure and the pruning by Mr Symonds had reduced the risk of injury presented by the tree below its already low baseline. Nonetheless, the active termites introduced unacceptable uncertainty regarding the tree’s future stability and with it, a risk of injury to persons. Section 10(2) of the Act was engaged, relevant s 12 elements were considered, and orders shall be made for extermination of the termites.

45. Ms Norman noted advice from Council’s Senior Environmental Health Officer that, in the absence of a report from an AQF level 5 arborist, the applicant’s two short reports which stated the tree was at risk, should be enough expert advice for the Court to take the reports into account. Regrettably, the information in the ‘reports’ was incomplete at best and unnecessarily alarmed Ms Norman. Neither ‘report’ provided any indication whether the authors held qualifications at all, let alone AQF level 5 in Arboriculture, which is the minimum qualification required for expert arborists. Further, the advice provided did not meet the form required of an arborist report and there is potential for conflict of interest when a quotation for tree removal includes aspersions about a tree’s structural integrity.

Orders

46. The Court orders that:

1. The respondents, at their expense, shall employ a licenced pest controller to investigate the Eucalyptus tree for the presence of an active termite nest and exterminate termites from the tree. These works shall be completed within 45 days of the date of these orders.

J Douglas

Acting Commissioner of the Court

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Decision last updated: 08 January 2025