Parisi v Michaels - [2009] NSWLEC 1197

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:
Parisi v Michaels [2009] NSWLEC 1197

PARTIES:
APPLICANT
Parisi, Maria

RESPONDENT
Michaels, Wendy

FILE NUMBER(S):
20195 of 2009

CATCHWORDS:
TREES (NEIGHBOURS) :- senescence; management; injury; termites

LEGISLATION CITED:
Trees (Disputes Between Neighbours) Act 2006

CASES CITED:
Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280
Barker v Kyriakides [2007] NSWLEC 292

CORAM:
Thyer AC

DATES OF HEARING:
19 May 2009

EX TEMPORE DATE:
19 May 2009

LEGAL REPRESENTATIVES

APPLICANT
M Parisi (Litigant in person)

RESPONDENT
W Michaels (Litigant in person)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Thyer AC
19 May 2009
20195 of 2009 Maria Parisi v Wendy Michaels
JUDGMENT

ACTING COMMISSIONER: A large River she-oak (Casuarina cunninghamiana) (the tree) is growing at the back fence of 2 Marooba Road Northbridge (the property), about mid-way across the yard. The property is owned by Dr Michaels. She is represented by solicitor Mrs Taylor.

Dr Michaels submission includes the following documents:
Arboricultural statement prepared by Ms Mackenzie who is an AQF level 5 arborist, dated 8 May 2009. Ms Mackenzie also attended the hearing.
Statement of Mr Burns who is an AQF level 3 arborist, dated 10 May 2009. Mr Burns has advised on the care of the tree since 2002 and carried out the most recent pruning of the tree on 15 April 2009.
Termite inspection report by W Tafe (May 2009).
Fourteen letters of support for retention of the tree, including the neighbour immediately to the west whose yard is overhung by the tree. Many of these supporters attended the hearing.

Mrs Parisi is the owner of 1 Kiola Road, Northbridge, the adjoining property to the south. The tree overhangs and shades her property. She makes an application under the Trees (Disputes Between Neighbours) Act 2006 for removal of the tree on the basis of risk of injury to people. Mrs Parisi is represented by Cathy Parisi who is assisted by Francine Parisi, both members of her family.

Mrs Parisi raised objection to my hearing the matter on the basis that I was previously an employee of Willoughby City Council, and had inspected a tree on Dr Michaels’ property as part of my duties for the Council. I declined to abandon the hearing on the basis that I left employment with the Council more than one and a half years ago, l had visited the property on perhaps two occasions some years prior in a Council work capacity only, and I do not consider my present assessment of the case or the tree would be prejudicial to either of the parties.

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 the 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?
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?
Further, before determining an application, the Court is to consider the matters in s 12 of the Act.

Damage

I am told that the tree has dropped many branches into Mrs Parisi’s backyard since she purchased her property in 2004, but none of those branches have caused damage.

Mrs Parisi submitted a supplementary Damage to Property form, claiming that the tree has white ants that may damage her house, that the tree may have caused blockage to the sewer, and that the tree may have caused decline of two Leighton Green conifers in her garden.

W Tafe inspected the tree in May 2009 and found that termites were not present but inactive Collembola which are a form of springtail insect that may look a bit like termites were found under the bark. Mrs Parisi did not press the issue of termites.

Mrs Parisi did not provide any evidence that the sewer blockage was in her pipes and caused by roots of the tree. She did not press this issue.

I observed that the two declining conifers in Mrs Parisi’s garden are part of a hedge at her back fence, but are not adjacent each other or closest to the tree. Mrs Parisi did not press this issue.

On the basis that the tree has not caused and is not causing damage to Mrs Parisi’s property, the first and second tests in s 10(2)(a) of the Act are not met.

Access to light

At the hearing, Mrs Parisi raised her concern about overshadowing by the tree. Preston CJ discussed access to light and views in Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 [para 173]. His Honour states:
Obstruction of a view from land or of access to light on land by a tree situated on adjoining land does not constitute “damage to property on the land”.
Therefore the mere presence of shade from the tree does not meet the tests in s 10(2)(a) of the Act. Further, regarding situations of a tree obstructing a view or access to light, his Honour states:
Although the New South Wales Law Reform Commission recommended that the new statutory scheme should address such concerns, the legislature expressly declined to do so, as the second reading speech and Parliamentary Debates plainly state.

Injury

Mrs Parisi claims that her grandson slipped on her back porch in March 2009 because of Casuarina needles on the tiles. A photograph in her submission shows a light spread of Casuarina needles, twigs and nuts on the tiled porch. I consider that any injury arising from that situation would be the fault of inadequate house keeping rather than injury caused by the tree. Even if such injury was likely to be caused by the tree, I would find, consistent with the Court's decision in Barker v Kyriakides [2007] NSWLEC 292, that it is not appropriate to order the removal of the tree or significant interference with the tree on the basis of its dropping of leaves, twigs and the like on the applicant’s property. As discussed in Barker v Kyriakides, for people who live in treed urban environments there is some necessary degree of assumption of housekeeping required both by the owner of the tree and those on adjacent properties in order to appreciate and retain the benefits of having such a treed urban environment.

Mrs Parisi claims injury to a person is likely because the tree continues to drop live branches, often in still conditions. I observed that the backyard is not large, and has both garden and lawn areas. I am told that the lawn area near and under the tree is the major outdoor recreation space for her grandchildren and visitors. I note in passing that the redevelopment of the property by Mrs Parisi has resulted in a house with a large footprint on the property, leaving little outdoor space, and most of that space near the tree.

Mrs Parisi says that a 20 cm diameter live branch fell into her yard in 2004 when the property was being redeveloped and nobody was living there. However, Mr Traynor who removed the branch for Dr Michaels says the branch was 10-15 cm diameter, about 3-4 m long, and broke in a storm.

Mrs Parisi says that since 2004 about 50 branches have fallen from the tree into her yard, the largest being 5 cm diameter, a few about 2 cm diameter, and the rest smaller. She claims that fallen branches are very brittle and can be broken by hand.

Mrs Parisi provided Bureau of Meteorology (BOM) reports for January and February 2009, identifying four days when branches fell from the tree. From her information and the BOM reports it seems that:
a 3 m long branch fell into her yard on the morning of 14 January when the wind speed was 7 kph at 9 am;
a branch fell into her yard in the afternoon of 23 January when the wind speed was 19 kph at 3 pm;
a branch about 4 m long with about 10 cm diameter fell into Dr Michaels yard on the 10 February when the wind speed was 6 kph at 9 am and 19 kph at 3 pm;
a branch broke and hung in the tree on the 28 February when the wind speed was 7 kph at 9 am and 20 kph at 3 pm.
I note that the BOM information is stated to be mostly for Observatory Hill, but may be from Fort Denison and Sydney Airport. On that basis, I consider it may give some indication but could not be relied upon for conditions at Northbridge. I also note that the columns for maximum wind gust speed, time and direction are empty on these reports. I conclude from this information than four branches fell recently in a two month period during reasonably normal weather, and that two of those branches may have been large enough to cause injury or damage.

Dr Michaels had the tree pruned in April 2009 to remove much of the crown that overhung Mrs Parisi’s property, and also some higher branches. She had the tree inspected after that pruning by Ms Mackenzie who prepared an arboricultural report. As damage has not been caused by falling branches in the past, and much of the overhanging crown has been removed, I find that damage to Mrs Parisi’s property is not likely in the near future, thus the third test in s 10(2)(a) of the Act is not met.

The conclusions of Ms Mackenzie’s report at paragraphs 29 to 31(x2) are:
29. The tree is a mature specimen of excellent vigour. There are no signs to suggest the tree is entering over maturity, such as excessive amounts of dead or dying parts of the tree.
30. The tree has been heavily pruned which has resulted in the majority of the crown to be to the north over the Respondent’s rear yard. Removal of a large portion of the crown to the south has reduced the risk of branches falling into the yard of the applicant, but may have increased the risk of branch failure in other areas due to increased exposure of previously protected branches.
31. The base and stem of the tree appear to be sound and without any visible signs of decay or other significant defect.
31. There are past branch failures noted in the crown. There is evidence the tree has a weak union of two branches on the west stem, a large branch to the east that is possibly subsiding, and a branch to the west which is exposed after the last pruning of the tree. These areas require further detailed assessment to determine how they will be managed to reduce the risk of their falling.
And her recommendations at paragraphs 34 to 39 recommend further inspection of the tree to assess suitability for cabling and bracing to reduce the risk of branch failure, routine removal of deadwood larger than 20 mm diameter, and monitoring of the vigour and condition of the tree every year.

I find after observation of the tree, consideration of Ms Mackenzie’s report, and further questioning her at the hearing, that branch failure is still likely. As some branches still overhang Mrs Parisi’s yard, and high branches could be blown into her yard, I find that the tree is likely to cause injury, thus satisfying the test in s 10(2)(b) of the Act. On that basis I am able to make orders regarding the tree.

s 12 Considerations

Addressing the matters in s 12 which the Court is required to consider:
(a)   The tree is located very close to the boundary of Mrs Parisi’s land, and some branches still overhang that land.
(b)   The Willoughby Tree and Bushland Preservation Order allows pruning of this tree by up to 33% of its crown over a five year period. Mr Burn states that he carried out a 15% pruning on 15 April 2009.
(c)   Dr Michaels maintains that the tree has historical value on the basis that it is more than 50 years old, and cultural value as part of her Australian native garden and the daily life of her family. Her father spent a great amount of time sitting under the tree in his declining years, and his ashes are buried there now. Also, I consider that 14 letters of support for the tree indicate strong local community support for its retention.
(d)   The tree is an Australian native plant but is not endemic to the local area. Dr Michaels states that it is a roosting place for local fauna, and that it is used by lorikeets, white and black cockatoos, native mynahs, kookaburras, currawongs, magpies, tawny frogmouths, and that arboreal mammals such as ringtail and brushtail possums traverse the rear garden.
(e)   The tree is a major feature of the native gardens on Dr Michael’s property which have been featured in the North Shore Times as a model native garden. The tree provides a soft green canopy and the sound of the wind through the tree is an additional benefit.
(f)    The tree is one of the landmark trees in the local area, being visible from surrounding streets. The tree also contributes to public amenity by providing intrinsic value through oxygen production, carbon sequestration, cooling summer shade, reduction of stormwater runoff, and deflection and dispersal of strong winds.
(g)   This species can form a mass of fibrous roots that reduce soil erosion, but that is not a relevant feature in this case.
(h)   Damage has been considered above and is not a reason for making orders in this case, but the actions taken by Dr Michaels and set out in (i) (ii) below also apply as actions to prevent damage.
(i)    Injury
(i)   Contribution other than the tree, Act or omission by applicant:
Dr Michaels says that branch failure may be partially due to changed conditions caused by removal of a large Eucalypt from the property immediately to her west in 2003, and earthworks and raising of the soil level about 10 cm in Mrs Parisi’s backyard in 2006. Mrs Parisi denies the soil level was raised in her backyard.
(ii)   Applicant’s or tree owner’s steps to prevent injury:
1. From 1975 to 2003, Dr Michaels has had the tree inspected by a qualified arborist on a regular basis, generally every 18 months, and appropriate pruning carried out as suggested.
2. Mr Burn has been engaged by Dr Michaels since 2002 to advise on the care and maintenance of the tree. He has inspected the tree on three occasions and climbed to the high canopy on three occasions. He pruned the tree in 2006.
3. On 15 April 2009 Mr Burn pruned 15% of the tree, that being about eight branches ranging from 8-20 cm diameter, all overhanging Mrs Parisi’s property, and one branch which had previous damage overhanging Dr Michaels’ shed. He did not prune to the 33% permitted by Council because he thought that would have been excessive on this mature tree.
4. On 24 April 2009 Mr Burn and Ms Mackenzie together carried out an inspection of the tree in order to advise of any likely potential problems within the next 12 months.
5. On 27 April 2009 the tree was further inspected by Consulting Arborist Mr Goddard.
6. On 7 May 2009 the tree was inspected, including drilling of the root crown, by Tafe Pest services and no evidence of termites was found.
7. Also on 7 May 2009 the root crown was inspected by Ms Mackenzie who found the root crown was sound with no hollowness.
8. Dr Michaels submitted statement says at paragraph 22 that she intends to carry out her former practice (regarding the tree) namely:
Regular inspections by arborist;
Regular inspections by pest inspector;
Removal of any material that may be infested by or encourage termites;
Pruning of branches where necessary, particularly in relation to the applicant’s property.
9. At the hearing, Dr Michaels explained her wish to maintain the tree beyond its present maturity into senescence and to manage the risks associated with the tree over that time.

(j) Other matters relevant in the circumstances of the case
(i)The recommended works to the tree are likely to be expensive, but Dr Michaels has not raised any concern about her willingness or ability to meet those costs.
(ii)There is strong community support for retention of the tree.

Conclusions

On the basis of the history of branch fall from the tree even though it has been intensely managed, and the extent and cost of works recommended by Ms Mackenzie, I might in other circumstances order removal of such a tree.

However, noting the strong community support for retention of the tree, the environmental and amenity benefits of the tree, Dr Michaels’ strong wish to retain and manage the tree, the recent reduction of overhanging branches, and the fact that Dr Michaels is willing to meet the cost of works recommended by Ms Mackenzie, I find that the tree should be retained, and orders made for its ongoing management.

Orders

The application is upheld in part and the Court makes the following Orders:
1. These orders apply to 2 Marooba Road, Northbridge, and 1 Kiola Road, Northbridge;
2. The tree shall be inspected by an AQF Level 5 arborist and an expert in tree restraint systems to determine whether any restraint system is necessary within the next year. They shall prepare a written joint report within 60 days of the date of these orders, and a copy of that report shall be given to Mrs Parisi within 14 days of the report being provided to Dr Michaels;
3. Should the report described in 2. above recommend that any restraint system be necessary, the restraint system shall be installed by a suitably qualified and insured contractor within 120 days of the date of these orders;
4. The tree shall be inspected at periods of no more than one year by an AQF Level 5 arborist to monitor vigour, condition and structural integrity of the tree, and inspections shall also occur within 30 days of: any major storm event that creates failure of branches larger than 50 mm diameter which fall into Mrs Parisi’s property; and the owner being made aware or becoming aware of any signs that may indicate the tree is under stress such as dieback of branches, excessive or abnormal bark shedding, stem splits, noticeable cracks along branches of trunk; excessive oozing of resin or other unusual features. On each occasion the tree is inspected by an AQF Level 5 arborist, the arborist shall prepare a report and provide that report to Dr Michaels within 30 days of the inspection. Dr Michaels shall give a copy of the report to Mrs Parisi within 14 days of receiving it;
5. The tree shall be pruned at periods of no more than one year by an AQF Level 3 arborist, to remove all deadwood larger than 20 mm diameter, to manage regrowth on the southern side of the crown, and to address any problems identified in the reports by the AQF Level 5 arborist;
6. The work described in 2., 3., 4. and 5. above shall be done in accordance with the Australian Standard AS 4373-2007 Pruning of Amenity Trees, and the NSW WorkCover Code of Practice for the Amenity Tree Industry (1998), and contractors shall have suitable insurance;
7. The work described in 2., 3., 4. and 5. above shall be done at Dr Michaels’ cost and initiated by her;
8. Mrs Parisi shall allow access to her property for the work described in 2., 3., 4. and 5. above, and that access shall be on reasonable notice and at reasonable times;
9. Mrs Parisi shall make a written and photographic record of any branch failure from the tree, on her property or likely to fall onto her property, and to provide a copy of that record to Dr Michaels soon after the event and within seven days if possible. Any costs involved in providing such records shall be met by Mrs Parisi
10. Mrs Parisi may place fallen branches back onto Dr Michaels’ property at a location advised by Dr Michaels;
11. Mrs Parisi shall give at least seven days notice to Dr Michaels, describing any pruning that Mrs Parisi intends to have done to the tree over her property, and any pruning done by Mrs Parisi shall be in accordance with the Australian Standard AS 4373-2007 Pruning of Amenity Trees.

___________________
Peter Thyer
Acting Commissioner of the Court
A copy of the formal orders may be obtained from the Court’s registry upon payment of a fee. Details are available on the Court’s web site at

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Citations

Parisi v Michaels [2009] NSWLEC 1197

Cases Citing This Decision

Cases Cited

Statutory Material Cited

Robson v Leischke [2008] NSWLEC 152

Barker v Kyriakides [2007] NSWLEC 292