Paynter v Huang

[2024] NSWLEC 1376

Land and Environment Court

New South Wales

Medium Neutral Citation:

Paynter v Huang [2024] NSWLEC 1376

Hearing dates:

25 June 2024

Date of orders:

25 June 2024

Decision date:

25 June 2024

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

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

(2)   Within 30 days of the date of these orders, the applicants are to send to the respondent’s property agent three quotes to remove the tree to ground level and to remove its foliage, branches and stem wood from the site (the works). The quotes must come from suitably qualified arborists (minimum AQF level 3) with all appropriate insurances.

(3)   The applicants are to engage and pay for one of the arborists that quoted at Order (2) to remove the tree to ground level within 60 days of the date of these orders, and remove all foliage, branches and stem wood from the site. These works are to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.

(4)   The applicants are to give the respondent 7 days’ notice of the works in Order (3).

(5)   The respondent is to allow all access necessary for the works during reasonable hours of the day, including informing any tenant of the property that access is required for the works.

(6)   Within 7 days of completion of the works, the applicants are to provide the respondent with a receipted copy of the paid invoice.

(7)   Within 7 days of receiving a copy of the invoice in Order (6), the respondent is to pay the applicants the amount of the cheapest quote from Order (2).

(8)   Within 3 months of the date of these orders, the respondent is to plant two Angophora costata trees on her property.

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

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) –whether neighbouring tree is likely to cause damage or injury – actions taken by the parties – orders for tree removal

Legislation Cited:

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

Cases Cited:

Yang v Scerri [2007] NSWLEC 592

Texts Cited:

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

Category:

Principal judgment

Parties:

Robert Paynter (First Applicant)
June Paynter (Second Applicant)
Xun Yan Huang (Respondent)

Representation:

Counsel:
R Paynter (Self-represented) (First Applicant)
J Paynter (Self-represented) (Second Applicant)
M Zhou (Agent) (Respondent)

File Number(s):

2023/162894

Publication restriction:

Nil

Judgment

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

Background

1. COMMISSIONER: In the back yard of 48 Rosemead Road, Hornsby (No 48), a tall Sydney red gum (Angophora costata) (the tree) stands near the common boundary shared with 50 Rosemead Road (No 50). Unlike most other trees in the vicinity, which appear healthy, branches in the tree’s crown have died back, causing new epicormic shoots to grow.

2. June and Robert Paynter (the applicants) own and live at No 50. Concerned about large dead branches falling onto their property, they asked the rental agent for No 48 to remove the tree. Xun Yan Huang (the respondent) owns No 48, but the property is managed by Elders Real Estate, Hornsby (Elders RE). At first, Elders RE informed the Paynters that they (the Paynters) had the respondent’s permission to remove branches from the tree at their own cost. Elders RE asked Julie Cottle, the tenant at No 48, to apply to Hornsby Council (Council) for permission to prune the tree. Ms Cottle did so, and Council granted consent to prune or remove the tree.

3. After ongoing discussions and various efforts to engage an arborist, the tree remained in situ and the issue remained unresolved. The Paynters 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 respondent to remove the tree at the respondent’s cost. They also seek the cost of an arborist report they commissioned; however, Commissioners of the Court do not have the power to order costs in these proceedings.

4. The hearing took place onsite allowing the Court to inspect the tree and both properties. The applicants were self-represented. Min Zhou of Elders RE acted as agent for the respondent. Ms Cottle also attended the hearing and clarified some matters.

Framework for this decision

5. The Paynters have applied to the Court pursuant to s 7 of the Trees Act for an order to prevent damage to their property and to prevent injury to any person as a consequence of a tree on adjoining land.

6. The order they seek for tree removal is an order that the Court may make according to s 9 of the Trees Act. Before making such an order, 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.

7. If the tests at s 10 are satisfied, the Court must consider a range of matters at s 12 of the Trees Act before determining the application.

Reasonable effort to reach agreement

8. The Paynters’ attempts at getting Ms Huang to remove the tree were reasonable. Ms Huang has shown some resistance to taking responsibility for the situation and the Paynters understandably became frustrated. Any resolution became unlikely. I am satisfied that they made a reasonable effort.

The tree

9. The subject tree, an Angophora costata (Sydney red gum) (the tree), stands on steeply sloping land close to the common boundary with the Paynters’ land. William Dunlop, an arborist engaged by the Paynters, assessed the tree as being 18 metres tall with a stem diameter of 45 cm. Branches extend across the common boundary. Mr Dunlop found the tree posed a high risk of damage to the applicants’ property. I accept this. Large dead branches are likely to fall within the near future, being a period of 12 months as per the principle in Yang v Scerri [2007] NSWLEC 592 (at [14]). The branches are likely to strike and damage parts of the Paynters’ dwelling, or may cause injury to anyone in their outdoor living area.

10. At the base of the tree, the bark and cambial layers have died around the stem’s circumference, most likely as a result of a fungal root pathogen. The tree will not recover from this. Not only is branch failure likely, but the presence of root decay fungus suggests root plate failure is a possibility, with the risk of significant damage to the Paynters’ dwelling. Therefore, more than branch removal is required to mitigate the risk of damage to the applicants’ property – the tree must be removed to ground level.

Relevant matters

11. I have considered the matters at s 12 of the Trees Act that are relevant to these proceedings.

12. The tree is close to the applicants’ property, with the potential to cause significant damage to their property in the case of branch or root plate failure.

13. Due to its poor condition, the tree’s crown provides little in the way of environmental benefits. No habitat hollows were observed in the tree.

14. Hornsby Council has already granted consent for the tree’s removal. Their permit included a condition for replacing the tree. Replacement tree planting can be ordered by the Court (s 9 of the Trees Act).

Who should pay?

15. For reasons unknown, the respondent at first expected the applicant to pay for any works needed to manage the tree. The respondent has chosen not to attend the hearing, but relies on their managing agent to make submissions on her behalf. While Min Zhou (the agent) suggested the respondent might pay for the works, she argued that they had been unable to engage an arborist to do the works for a variety of reasons. The explanations given to the Court were less than convincing and reinforced the applicants’ submissions that the respondent has shown ongoing resistance to taking responsibility for mitigating the risk caused by the tree. An arborist contacted by the respondent told the applicant that they should expect some damage to their property and plants beneath the tree during the works. In an email to the Paynters on 31 May 2024 (included in Exhibit 1), Elders RE wrote: “Please do let us know whether you'd like to proceed with pruning the tree or removing it entirely with a possibility of property damages.” The applicants, unsurprisingly, found this unreasonable.

16. The applicants spoke with arborists who explained that the works could be done without damage.

17. I put to both parties that the Court could make orders for the applicants to engage and pay for an arborist to remove the tree, with the respondent then to reimburse the applicants for the cost of the works. I invited their submissions on this.

18. The respondent submitted that this would be a suitable solution. When the cost of the works was raised, they submitted that the reimbursement amount should be capped at $2,000, as the respondent had received a quote for $1,500. Relying on my own professional experience, that price does not seem at all realistic.

19. Given the history of the respondent’s unwillingness to take reasonable action, I am not satisfied that they would organise tree removal in a suitable manner. They have shown resistance to spending money that needs to be spent to mitigate the risk. I favour the option of ordering the applicants to arrange and pay for the works. Orders for reimbursement should prove more straightforward for the respondent to follow, rather than orders for removing the tree.

20. The respondent submitted that the applicant should obtain three quotes for tree removal, to be presented to the respondent, with the cheapest quote to be chosen. This seems reasonable. The orders will be made in such a way to allow the applicants to choose their preferred arborist of the three quotes, while the respondents will reimburse them for the amount of the cheapest quote.

21. The applicants suggested that 60 days would be a reasonable timeframe in which to complete the works.

Debris

22. The Paynters submitted that the tree’s foliage, branches and stem wood would present a fire risk if retained onsite in this declared bushfire zone. The respondent submitted that they might like to keep the material onsite. Considering the zoning, I accept the applicants’ submissions regarding this issue. Removal of all of the tree’s debris will be ordered.

Orders

23. The Court orders:

1. The application to remove the tree is granted.

2. Within 30 days of the date of these orders, the applicants are to send to the respondent’s property agent three quotes to remove the tree to ground level and to remove its foliage, branches and stem wood from the site (the works). The quotes must come from suitably qualified arborists (minimum AQF level 3) with all appropriate insurances.

3. The applicants are to engage and pay for one of the arborists that quoted at Order (2) to remove the tree to ground level within 60 days of the date of these orders, and remove all foliage, branches and stem wood from the site. These works are to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.

4. The applicants are to give the respondent 7 days’ notice of the works in Order (3).

5. The respondent is to allow all access necessary for the works during reasonable hours of the day, including informing any tenant of the property that access is required for the works.

6. Within 7 days of completion of the works, the applicants are to provide the respondent with a receipted copy of the paid invoice.

7. Within 7 days of receiving a copy of the invoice in Order (6), the respondent is to pay the applicants the amount of the cheapest quote from Order (2).

8. Within 3 months of the date of these orders, the respondent is to plant two Angophora costata trees on her property.

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

……………………………….

D Galwey

Acting Commissioner of the Court

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Decision last updated: 02 July 2024