Nott v Leung; Chu v Leung

[2019] NSWLEC 1394

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Nott v Leung; Chu v Leung [2019] NSWLEC 1394

Hearing dates:

18 June 2019

Date of orders:

16 August 2019

Decision date:

16 August 2019

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

 

Proceedings 2019/55091

 

(1)   The application to remove the tree is refused.

 

Proceedings 2019/55250

 (1)   The application to remove the tree is refused.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – two applications concerning one tree – whether there must be a dispute – council refused application to remove a tree – tree owner did not appeal council decision – risk of damage or injury – applicants have not demonstrated that the tree has damaged or is likely to damage property, or is likely to cause injury – arboricultural evidence not consistent with observations

Legislation Cited:

Civil Liability Act 2002 (NSW)
Trees (Disputes Between Neighbours) Act 2006 (NSW)

Cases Cited:

Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Yang v Scerri [2007] NSWLEC 592

Texts Cited:

New South Wales, Parliamentary Debates, Legislative Council, 18 May 2010 (Bob Debus)
Parliamentary Counsel’s Office (WA), How to read legislation, a beginner’s guide (May 2011)

Category:

Principal judgment

Parties:

Proceedings 2019/55091

 

Murray Nott (First Applicant)
Frances Lorraine Nott (Second Applicant)
Kin-Chuen Leung (First Respondent)
Wai Ching Leung (nee Ip) (Second Respondent)
Hornsby Shire Council (Interested Party)

 

Proceedings 2019/55250

  Sau Han Chu (First Applicant)
Choi Wai Tong (Second Applicant)
Kin-Chuen Leung (First Respondent)
Wai Ching Leung (nee Ip) (Second Respondent)
Hornsby Shire Council (Interested Party)

Representation:

Proceedings 2019/55091

 

Counsel:
M Nott (Applicants) (self-represented)
K C Leung (First Respondent) (self-represented)
W C Leung (Second Respondent) (self-represented)
T Pickup (Solicitor) (Interested Party)

 

Solicitors:
Local Government Legal (Interested Party)

 

Proceedings 2019/55250

 

Counsel:
M Nott (Solicitor) (Applicants)
K C Leung (First Respondent) (self-represented)
W C Leung (Second Respondent) (self-represented)
T Pickup (Solicitor) (Interested Party)

  Solicitors:
Murray J Nott Solicitor (Applicants)
Local Government Legal (Interested Party)

File Number(s):

2019/55091; 2019/55250

Publication restriction:

No

Judgment

The applications

1. Here are two applications concerning the same tree, made by separate applicants. They have all the usual elements of applications made to the Court under Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (the ‘Trees Act’) – a tree, neighbours, concerns of damage or injury – bar one: a dispute between neighbours. The respondents and both pairs of applicants all agree that the tree should be removed at the respondents’ expense.

2. How to read legislation, a beginner’s guide, is an informative text prepared by the West Australian Parliamentary Counsel’s Office (the ‘WA guide’). On page 7 it says:

“The titles of the various pieces of legislation give a general idea of what they are about.”

The title of the Trees Act suggests a dispute might be central to its purpose.

3. On pages 15-16, the WA guide says:

“Understanding what its purpose or object is may be helped by things such as the long title (in an Act) and provisions (if any) that set out the purpose or objects.”

4. The long title of the Trees Act is: An Act to provide for proceedings in the Land and Environment Court for the resolution of disputes between neighbours concerning trees; and for other purposes.

5. ‘Other purposes’ are not explained, so it is possible that they include the purposes in these proceedings.

6. The WA guide continues on page 16:

“But often the only way to understand say an Act’s purpose is to read it from cover to cover and to get a feel for what it is trying to do. The long title and any purpose or objects provision will not contain the full answer. Although pieces of legislation do not, like novels, have plots, understanding the purpose of a piece of legislation is akin to understanding a novel’s plot. You have to read it all.”

7. Beyond the title of the Act, its Long Title (see above) and s 1 (Name of Act), the word ‘dispute’ makes no further appearance within the Trees Act.

8. Both applications are made pursuant to s 7 of the Trees Act, which enables a person to make an application but also restricts the circumstances in which they might do so, and describes the aims of the orders they might seek:

7 Application to Court by affected land owner

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.

9. Section 4 restricts the Trees Act to apply only to trees on certain land, including ‘Residential’. The tree in this application is on land zoned Low Density Residential. The respondents’ land adjoins the land of each applicant. Therefore, both pairs of applicants may apply to the Court for orders to prevent damage to their properties or injury as a consequence of the respondents’ tree, as they have done.

The respondents applied to remove the tree

10. The applicants, and in particular Mr Nott, approached the respondents some time before March 2018. The respondents applied to Hornsby Shire Council (‘Council’) in March 2018 for consent to remove the tree. Council inspected the tree and refused consent. In July 2018, the respondents made a second application to remove the tree. Council again refused to grant consent. The avenue open to the respondents after each decision was to appeal Council’s decision. Had Council still refused consent, the respondents might have appealed the decision in this Court. The respondents chose not to appeal the decisions. Some further correspondence passed between Mr Nott and Council. The timeframe in which to lodge an appeal passed.

Framework of this decision

11. In a way, the dispute between the neighbours here, if there is one, is that the respondent did not appeal Council’s decision. Nevertheless, the two applicants have made their applications, as they may do according to s 7, so now I must determine if I can make orders according to the jurisdictional test at s 10(2) of the Trees Act and, if so, whether I should make orders after considering all relevant matters at s 12.

12. At s 10(2) The Court must be satisfied of certain matters before making orders:

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.

13. I am satisfied that the applicants have made reasonable effort to reach agreement (successfully, I might add) and have given the required notice. Therefore I must determine if the tree has caused, is causing, or is likely in the near future to cause, damage to the applicants’ properties, or is likely to cause injury to any person.

Council appears

14. The local council may appear at the hearing according to s 13 of the Trees Act.

13 Appearance by local council or Heritage Council

A local council or the Heritage Council (a relevant authority) may appear before the Court in any proceedings under this Part in relation to a tree if the consent or other authorisation of the relevant authority to interfere with the tree would be required, in the absence of section 6 (3), under the Environmental Planning and Assessment Act 1979 or the Heritage Act 1977.

15. In the absence of s 6(3), Council’s consent would be required to remove the tree in this application, so Council may appear before the Court. Council chose to do so.

Onsite hearing

16. Mr Nott represented himself and his wife as a self-represented litigant, and acted as solicitor for his neighbours in their application. The applicants relied heavily on a report and oral evidence from arborist Jim McArdle. The respondents made no submissions. Council was represented by Tony Pickup and relied on a report and oral evidence from their own arborist, Scott Wilkie.

17. The onsite hearing allowed observations of the tree and properties. In comparing the arborists’ findings and conclusions against observations of the tree, I bring my own arboricultural expertise and experience.

The tree

18. This Araucaria cunninghamii (the ‘Hoop Pine’) is a tall tree, prominent in the landscape. The tree is identified as A. cunninghamii by Mr McArdle and as A. columnaris (Cook Pine) by Mr Wilkie. The two species have many similar traits. I did not confirm the species beyond doubt, but it appeared more typical of Hoop Pine, which is how I refer to it in this judgment.

19. The Hoop Pine appears healthy with well-attached branches uniformly along its stem, which leans slightly to the west. It grows near the northern corner of the respondents’ property, which is near the ridge top of this part of Cheltenham, in Sydney’s northern suburbs. Not far distant on the respondents’ property is the remaining stump of another Hoop Pine that was removed.

20. Large surface roots from the Hoop Pine, some more than 20 cm in diameter, were observed some distance from the tree in the respondents’ property and in the properties of both pairs of applicants.

Root damage to the Nott property

21. The Nott’s application claimed that roots of the Hoop Pine damaged a brick wall on their boundary. They submitted that roots of the tree were found along the brick wall, which required replacing 6–8 years ago. They submitted that roots are still growing in the vicinity of the block wall that replaced the damaged brick wall, that these roots are likely to grow beneath the wall, damaging the wall and reaching their nearby swimming pool. They submitted that Council is required to give special consideration to potential root damage to swimming pools.

22. As I mentioned above, the applicants relied heavily on Mr McArdle’s report. I took the opportunity to remind Mr McArdle during his oral evidence that his opinion should be objective, his conclusions should be based on findings and logical discussion, and that his role as an expert witness was to assist the Court rather than act as an advocate for the applicants. On page 4 of his report, Mr McArdle wrote: “The pool and masonry wall safety fence (new fence) have previously had property damage from roots travelling around under and near foundations causing this damage.” He was unable to show me ‘this damage’, and could not describe it. He did not provide any evidence that roots had caused any damage. Like many other assertions in his report and oral evidence, his statement regarding root damage lacked any reasons.

23. Despite the presence of roots near a wall, I must be satisfied, as specified clearly at s 10(2) of the Trees Act, that the tree has caused or is causing damage, or is likely to do so in the near future. In Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29, Craig J discussed at [38] (and also at [47], [61] and [62]) the requirement for there to more than just a possibility that a tree has caused damage:

“38 I am prepared to embrace the approach articulated by the Federal Court in the cases cited. However, that does not relieve me of the obligation cast by s 10 to be ‘satisfied’ of the causal nexus between the Sydney Blue Gum and the damage claimed by the applicants. That will require an assessment of the totality of the evidence adduced before me. When considering that evidence, it will, nonetheless, require a ‘preponderance of probability’ that the causal nexus exists. Anything less would not be tantamount to the satisfaction required by the section. So much, I think, was acknowledged by Mr Seymour when he concluded his submission in reply on this issue by saying ‘it’s just simply a state of belief, on the balance of probabilities.’”

24. If damage to the Notts’ original brick wall was caused by tree roots, which has not been shown, it is also unclear which tree’s roots caused any damage. At the time the wall required replacement, the respondents’ other Hoop Pine remained. It was closer to the wall than the tree that remains, so it is perhaps more likely that any roots found there were from that tree. Certainly, it has not been shown that roots were from the Hoop Pine that is the subject of the application.

25. Roots of the Hoop Pine can be seen to grow towards the Notts’ boundary wall. A large root from the tree can be seen in the Notts’ garden. Mr Nott asked Mr Wilkie if roots found near the new block wall might grow beneath it, toward the pool. Mr Wilkie acknowledged this was a possibility. When assessing the application for the tree’s removal he did not consider this highly as there was no evidence that roots were causing damage at the time. Mr Wilkie stated that a root barrier could prevent roots growing into the Notts’ property. While this is true, and is an option open to the parties, I could not make orders for installing a root barrier as I am not satisfied that the Hoop Pine’s roots have caused damage to the Notts’ property. Nor am I satisfied that there is any real likelihood that they will cause damage in the near future, a period I regard as 12 months as per the principle in Yang v Scerri [2007] NSWLEC 592.

26. Based on Mr Nott’s submissions and Mr McArdle’s evidence, I cannot be satisfied that the Hoop Pine’s roots have caused damage to the Notts’ property or are likely to do so in the near future. It follows that no orders can be made on this element of the Notts’ application.

Root damage to the Chu and Tong property

27. The application of Miss Chu and Mr Tong also claimed that roots of the Hoop Pine have damaged their property, and are likely to do so.

28. On page 16 of his report, Mr McArdle wrote: “The next door neighbour at [address removed] has massive root intrusion to the foundations of her residence and within her property.” I understand a root was found near the dwelling’s foundation. Mr Nott submitted that it has damaged the dwelling. No evidence of foundation movement or damage to the dwelling was adduced, nor evidence that such damage is likely in the near future. Mr Nott stated that they cut the 5-cm root found next to the foundations.

29. Miss Chu pointed out roots growing on the surface of her lawn. They are not causing damage but disrupt the surface. Mr Nott submitted that cutting these roots might increase the risk of tree failure, despite declaring that they had cut the root found near the dwelling. Mr Wilkie expressed a view that cutting roots at this distance from the tree should not affect its stability.

30. Neither observations, nor Mr Nott’s submissions, nor Mr McArdle’s evidence provided any support on which I could place the satisfaction required by s 10(2) of the Trees Act before making any orders. It follows that no orders will be made on this element of Miss Chu’s and Mr Tong’s application.

Risk of whole tree failure causing damage or injury

31. The other element of each application concerns the likelihood of the Hoop Pine falling over and damaging one of the applicants’ dwellings or injuring people. The dwellings are approximately 10 metres (Chu and Tong) and 15 metres (Nott) from the Hoop Pine, which is approximately 25 metres tall, so both are potential targets should the tree’s roots or stem fail. There is nothing to suggest one dwelling is more likely to be struck than the other, and submissions regarding this element of each application were identical apart from the nature of rooms that might be struck. Therefore, the risk of tree failure causing damage or injury can be considered together here for the two applications.

32. Mr Nott’s submissions regarding the risk of tree failure again rely heavily on Mr McArdle’s evidence. The reasons he gives for the tree being likely to fail include:

• The tree’s stem leans to the west, in the general direction of the applicants’ dwellings;

• The tree’s crown is biased with more weight on its western side;

• The tree’s stem has cracks resulting from excessive loads;

• The tree’s root plate is lifting on its tension side and is depressed on its compression side;

• Roots of the tree are decaying due to fungus;

• Soil is shallow, with sandstone ledges and floaters present;

• The tree is exposed to high winds; and

• Other trees were removed in the vicinity recently, increasing wind loads on the Hoop Pine.

33. The stem’s lean is no more than many other trees of this and similar species. It may result from prevailing winds, or from competition for light with other trees. Of course, it might also be a result of root plate movement, but here I saw no signs that the root plate has lifted on one side. Miss Chu stated that she thought the tree’s lean had increased over the years and that the ground on its western side was lower than before. Mr McArdle wrote that compression roots were depressed and tension roots lifted, and re-asserted this at the onsite hearing. When asked to show signs to indicate this he pointed out tension roots on the surface, saying they should not be so high in the ground. Mr Wilkie thought the roots pointed out by Mr McArdle were adventitious roots, more recently grown than the tree’s original structural roots, which are likely to be at a greater depth. I saw no signs of root plate movement. Ground around the base of the tree appeared stable, without cracks or other signs of lifting on the tension side. Mr McArdle has not undertaken any investigations to explain or support his assertions.

34. Mr McArdle’s report included photos of cracks in the Hoop Pine’s stem. He said these were a result of excessive loading and an indication that tree failure is likely. Mr Wilkie thought they looked more like superficial growth splits, common in this species and of no structural concern. Mr McArdle wrote (on p 15): “The tree stem is losing flexibility and becoming more rigid which is not a good indicator for supporting the canopy.” It is true for most trees that their lower stems lose flexibility over time. At the onsite hearing, any cracks were less apparent than in Mr McArdle’s photos, supporting Mr Wilkie’s opinion that they were growth cracks.

35. Mr McArdle stated that the Hoop Pine’s roots were decaying, affected by fungus. He pointed to the fungal fruiting bodies clearly evident on the decaying stump of the other Hoop Pine, removed some time ago. Mr Wilkie thought the fungus was likely to be saprophytic, living in dead tissue, as there were no signs of fungus on the living Hoop Pine. Mr McArdle could not show me any decaying roots or signs of fungus on the Hoop Pine. Again, I prefer Mr Wilkie’s evidence regarding the condition of the Hoop Pine’s roots.

36. Mr Nott submitted that the shallow soil with sandstone floaters could not be relied upon to support the tree. Mr McArdle thought the tree would have deeper roots if the soil allowed. Mr Wilkie stated that he had seen many trees with shallow roots in these local soils. He thought Hoop Pines in this location were most likely to have shallow roots with occasional sinker roots growing down from them to a greater depth, providing anchorage. Without any root investigation it is difficult to know where roots might grow, given the heterogeneous nature of this soil, like many others. This Hoop Pine has already reached 25 metres in height, without falling over. Many other tall trees grow in similar soils. Without some indication that this tree is unstable, the nature of the soil is insufficient to satisfy me that tree failure is likely in the near future.

33. Mr Nott submitted that wind speeds are increasing due to climate change. He thought Council’s determination did not consider the maximum wind speeds likely here. In his written submissions he wrote: “In the expert report of McArdle, a wind rose has been included. That information establishes that wind speeds exceeding 45 knots can be anticipated from virtually any direction.” Mr McArdle wrote on p 15: “Wind speeds are in excess of 40km/hr and have recently increased, (See figure 32) to 89km/hr Sydney airport on 2nd December [sic].” The diagram to which he refers is a wind rose, the same one sent to him by Mr Nott, according to an email at the back of Mr McArdle’s affidavit. The evidence provided does not show that the Hoop Pine is likely to fail in winds.

34. Mr McArdle stated that the Hoop Pine is at risk of imminent failure. In a table on page 8 of his report, he identifies the tree risk assessment level (TRA) as ‘4B’. On page 22, the risk level 4B aligns in a risk matrix with a Risk Target Rating of ‘Constant Use’ and a Failure Potential of ‘Likely’. For reasons described above, I do not accept that windthrow failure of the Hoop Pine is likely. Mr Wilkie thought the risk of windthrow failure was low, and so did not include it in his risk matrix.

35. Mr Nott cited the Civil Liability Act2002 (NSW), saying that the only relevant consideration is whether a reasonable person would have taken precautions against a risk of harm, rather than any consideration of the level of risk. He argued that Council’s determination should only have considered the potential harm and what could be done to mitigate it. He submitted that all risk could be easily alleviated by allowing removal of the tree. Mr Nott cited case law involving determinations by local councils, but this is not an appeal against a council decision and I am not to take the role of a determining authority. Rather, with regard to the risk of failure, I am to determine if the tree that is the subject of this application is likely to cause damage to the applicants’ properties, or injury to a person, and I am not satisfied that this is the case.

Matters at s 12

40. Because of the applicants’ attention to Council’s determination, it is perhaps relevant to this decision that Council’s consent would ordinarily be required to remove the Hoop Pine. However, as I am not satisfied that the tree has caused, is causing or is likely in the near future to cause damage to the applicants’ properties, or injury to a person, I cannot make any orders. Therefore, there is no requirement for me to consider the matters set out at s 12 of the Trees Act.

Conclusion

41. Background material to the Trees Act, including the Second Reading Speech of Mr Bob Debus (NSW Legislative Council, 18 May 2010), make it clear that the Trees Act aims to provide a mechanism for resolving disputes between neighbours, rather than complaints about a council’s determination on a tree removal application. Despite the lack of a dispute between these three sets of neighbours, I find nothing in the Trees Act that would prevent these applicants making their application, or the Court determining the matter. Having considered the evidence, submissions and onsite observations, I am not satisfied that the Hoop Pine has caused, is causing or is likely in the near future to cause damage to the applicants’ properties, or is likely to injure a person.

Orders

Proceedings 2019/55091

42. As a result of the foregoing, the orders of the Court are:

1. The application to remove the tree is refused.

Proceedings 2019/55250

43. As a result of the foregoing, the orders of the Court are:

1. The application to remove the tree is refused.

……………………………….

D Galwey

Acting Commissioner of the Court

**********

Amendments

02 September 2019 - Correction of typographical error at [32] - removal of quotation marks

Decision last updated: 02 September 2019