Perich v Wu

[2024] NSWLEC 1158

Land and Environment Court

New South Wales

Medium Neutral Citation:

Perich v Wu [2024] NSWLEC 1158

Hearing dates:

29 January 2024

Date of orders:

29 January 2024

Decision date:

29 January 2024

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

The Court orders that:

(1) Within 60 days of the date of these orders, the respondents, at their expense, shall remove the Cupressus macrocarpa ‘Brunniana’ (the tree) which overhangs the applicant’s dwelling, from near the common boundary in the respondents’ front yard, to near ground level.

(2) The works in Order (1) shall be undertaken by Australian Qualification Framework (AQF) level 3 arborists with all appropriate insurances (the arborists).

(3) The respondents shall provide the applicant with at least 72 hours emailed notice of the date and approximate start time of the works and shall attach a copy of the arborists’ qualifications and insurance Certificates of Currency to such email.

(4) The tree works shall comply with Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016, and shall be undertaken during reasonable daytime working hours.

(5) The applicant shall provide the arborists with all required access to undertake the tree removal.

The application is granted. Orders at [24].

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – damage from falling branch – apprehension of further damage and injury to persons

Legislation Cited:

Trees (Disputes between Neighbours) Act 2006

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

Cases Cited:

McPherson v Lake [2017] NSWLEC 1081

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

Yang v Scerri [2007] NSWLEC 592

Texts Cited:

Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work 2016

Category:

Principal judgment

Parties:

Katie Perich (Applicant)
Jennifer Wu (First Respondent)
Grace Wu (Second Respondent)

Representation:

K Perich (Self-represented) (Applicant)
Non-appearance (Respondents)

File Number(s):

23/349789

Publication restriction:

Nil

JUDGMENT

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

Background

1. COMMISSIONER: This is an application, pursuant to s 7 of Part 2 of the Trees (Disputes between Neighbours) Act 2006 (the Trees Act) by Katie Perich of Killara, with respect to a Cupressus macrocarpa ‘Brunniana’ (the tree) overhanging the front of her dwelling from the front yard of the adjoining property on the southwestern side.

2. Ms Perich (the applicant), advised that Jennifer and Grace Wu (the respondents), currently lived in Singapore and that their house had been vacant since around July 2015. The applicant knew was aware of only two visits to the property by the respondents in the interim.

3. In March 2020, a branch broke from the tree into the applicant’s property, close to her dwelling roof. Another broken branch landed against the respondents’ window and Ms Perich contacted the respondents about the branches.

4. Following ongoing shedding of minor branches, the respondents endorsed an application by Ms Perich to Ku-ring-gai Council (Council), for removal of the tree. After an inspection in April 2023, Council granted permission, but the respondents subsequently emailed the applicant with a proposal to “split the cost of the removal of the tree” because “the tree stands that (sic) the border between both our property (sic)”.

5. Ms Perich rejected this proposal and advised the respondents that the tree removal cost was the respondents’ property owners responsibility because the tree base was not located on the border between the properties but was within the respondents’ land, about one metre (m) from the common boundary, within the respondents’ land. From May to September 2023, the respondents resisted undertaking the tree removal despite various plaintive emails from Ms Perich. Instead, the respondents maintained their position of splitting the tree removal cost.

6. On 3 October 2023, a large branch fell broke from the tree and fell onto the front of the applicant’s dwelling roof, above an occupied bedroom. State Emergency Services (SES) cleared the branch and an Australian Qualification Framework (AQF) level 5 arborist subsequently reported that the tree was “of poor structural integrity” and recommended its removal.

7. Ms Perich contacted the respondents about the fallen branch on 4 October 2023 and expressed annoyance and disappointment about the consequences of the respondents’ inaction. Regardless that Ms Perich advised Ms Wu of a pending application under the Trees Act, the respondents maintained that “as a tree in the border the neighbours are to share cost”.

The hearings

8. After the respondents failed to appear for the initial directions hearing on 21 November 2023, Deputy Registrar Orr granted the applicant’s Notice of Motion for substituted service by email. Directions were made at a second procedural hearing on 5 December 2023 for the onsite hearing to occur on 29 January 2024 at 9 am. This was communicated to the respondents, but the respondents made no contact with the Court and apparently chose to be unrepresented.

9. The onsite hearing was thus also held in the respondents’ absence. Though I inspected the sites from various perspectives, the tree was clearly visible from the applicant’s property and structural faults were apparent high on the main trunks.

The applicant’s proposed orders

10. Ms Perich proposed the following orders:

1. The respondents remove the tree, at their expense.

2. The respondents pay the applicant’s costs associated with the application, including the cost of the Notice of Motion for substituted service.

The respondents’ case

11. Other than consistently refusing to remove the tree unless the applicant split the removal cost, the respondents did not oppose the tree removal. The respondents provided no submissions or other evidence to the Court.

Jurisdictional requirements

12. With respect to s 7, 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.

13. The Court’s ability to make orders is limited, 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.

14. If the jurisdictional tests at s 10 of the Trees Act are satisfied, the Court can make orders such as those at s 9 to remedy, restrain or prevent damage to property, or to prevent injury to a person, as a consequence of the tree. Before determining the nature of any orders, the Court must consider a range of matters set out at s 12 of the Trees Act.

Reasonable effort to reach agreement

15. At question 32 of the Tree Dispute Claim Details (Form H) and in ‘Explanatory Notes’ (Notes) dated 3 November 2023 which included copies of the parties’ communication, Ms Perich recorded discussions with the respondents over many years, in person, and via email and Whats App. This communication consistently alerted the respondents to the risk of damage and injury that the tree presented and requested intervention with the tree. The respondents signed the (subsequently approved) application to Council for tree removal, but the respondents failed to remove the tree even after the major branch failure of October 2023.

16. Consequently, I am satisfied that the applicant has made a reasonable effort to reach agreement, and that s10(1)(a) of the Trees Act is engaged. Robson v Leischke (2008) 72 NSWLR 98; NSWLEC 152 includes extensive commentary about the reasonable effort to reach agreement. At [194 – 195], Preston CJ says:

“194 The Trees (Disputes Between Neighbours) Act 2006 does not specify any particular time at which the applicant must make a reasonable effort to reach agreement with the tree landowner, other than fixing the end point by requiring that the Court cannot make an order under the Act unless it is satisfied that the applicant has made a reasonable effort to reach agreement with the tree landowner. Hence, although it would be preferable for an applicant to make a reasonable effort to reach agreement with the tree landowner before making application to the Court, so as to avoid court action, there is no requirement to do so and a reasonable effort to reach agreement can be made after making the application at any time up until the Court determines the application.

195 The language in s 10(1)(a) of the Trees (Disputes Between Neighbours) Act 2006 that the applicant has made “a reasonable effort to reach agreement” is less demanding than the language used in provisions of other statutory enactments which require parties to make reasonable attempts to reach agreement in relation to matters claimed in the court originating process.”

17. Section 10(1)(b) of the Trees Act was also engaged as Ms Perich provided evidence in satisfaction of orders arising from the successful Notice of Motion for substituted service. The principal jurisdictional tests are next, at s 10(2) of the Trees Act.

Damage caused by the tree

18. The large branch of the tree which fell on the night of 3 October 2023 caused surprisingly little damage to the applicant’s roof, but it severed a communication cable. Therefore, s 10(2)(a) of the Trees Act is engaged.

19. The tree had three primary trunks, two of which leaned forward towards the applicant’s property. Though wounds from numerous small torn out branches were visible in various locations, my inspection focused on a complex primary branch junction from which the branch had failed on 3 October 2023. Included bark was clearly visible between overcrowded erect stems and on the face of the main wound. Included bark is a structural fault that is usually a genetically based weakness but it may also arise in response to poor pruning or storm damage.

20. Following the branch failure of 3 October 2023, the SES commissioned Murray Bolan, an AQF level 5 arborist, to inspect and report on the tree. Though Mr Bolan did not specify the basis for his finding of “poor structural integrity”, it was likely to relate to the obvious included junctions. “Due to the significant target area”, Mr Bolan reported that the tree “should be treated as potentially dangerous and considered for removal”. I concur with this opinion.

21. Based on the arboricultural expertise which I bring to the Court, I consider it it is probable that the large branch loss tear out of 3 October 2023 further destabilised the main junction and rendered additional branch shedding more likely. Having now lost a major branch from thisa primary trunk junction, the tree cannot be rectified or made safe by pruning. I therefore consider damage to the applicant’s property likely in the near future, where, in a guidance decision published in Yang v Scerri [2007] NSWLEC 592, as a rule of thumb, the ‘near future’ is deemed to be a period of 12 months from the date of the determination. Consequently, s 10(2)(a) of the Trees Act was again engaged.

Risk of injury to persons

22. Regarding injury to persons, the Court considers the risk posed by a tree in the foreseeable future based on the characteristics of the tree/s, the history of any failures, any other relevant evidence, and the circumstances of the site apparent at the time of the hearing (McPherson v Lake [2017] NSWLEC 1081 [at 10]).

23. The tree’s trunk containing the high, faulty branch junction overhung the entrance to the applicant’s dwelling and the branch loss of 3 October 2023 appeared to have further destabilised the main junction, rendering additional branch shedding more likely. Consequently, I am satisfied that the tree presents a moderate risk of injury which justifies intervention. and, Ttherefore, s 10(2)(b) of the Trees Act is also engaged.

24. With s 10 satisfied, in order to determine, what, if any, orders should be made, the Court must consider relevant matters in s 12 of the Trees Act.

Discretionary matters – Section 12

25. Under the Trees Act, a tree is the property of the owner/s of land where the tree base is “wholly or principally” located whereas local councils may consider trees growing acrosson boundaries to be the property of both neighbours. There was no ambiguity in this case, however, because the tree’s base was situated entirely on the respondents’ land, no closer than 600 mm from the common boundary (s 12(a)).

26. Following the major branch failure of October 2023, the structural integrity of the junction from which the branch tore appeared to have deteriorated. I am not satisfied that pruning can remedy the tree’s structural faults (s 12(b2)).

27. The tree contributes to protection from the sun and wind, but it provides little public amenity as it is largely concealed from public view by a dense mature Hill’s Fig dominatingon the street frontage between the parties’ properties (s 12(b3)).

28. The tree has capacity to provide habitat for fauna and hence make local ecosystem and biodiversity contributions, but when a large tree presents a genuine risk of injury and is likely to cause damage in the near future, safety must be prioritised (s 12(d)).

Conclusion

29. I have examined the tree and the site and have reached the following conclusions:

1. The tree has a history of branch breakage onto the applicant’s house and land. It exhibited multiple bark inclusions in a complex junction high up a large trunk which leans over the applicant’s land. Should more branch or trunk sections fall, the target area is the applicant’s dwelling roof and dwelling entrance.

2. Both s 10(2)(a) and s 10(2)(b) of the Trees Act were engaged as I was satisfied the tree caused damage to the applicant’s communication cable, is likely to cause damage in the near future, and presents sufficient risk of injury to persons to justify intervention.

3. Given the recent history of branch failure and apparent progressive structural deterioration, pruning is not a viable option to maintain the tree in a safe condition. Consequently, orders shall be made for tree removal.

4. It is conventional for respondents to pay for works ordered under the Trees Act, in all but exceptional circumstances. In light of the respondents’ failure to mitigate risk of damage and injury from the tree over a protracted period, there is no reason to vary the convention here.

5. Ms Perich’s proposed Oorder (2) for the paymentreimbursment of costs of the application falls outside the powers of Commissioners. Claims for costs including the registration fee for the Notice of Motion for substituted service require lodgement of a Notice of Motion with the Court, which is heard before a registrar, or a judge.

Orders

30. The Court orders that:

1. Within 60 days of the date of these orders, the respondents, at their expense, shall remove the Cupressus macrocarpa ‘Brunniana’ (the tree) which overhangs the applicant’s dwelling, from near the common boundary in the respondents’ front yard, to near ground level.

2. The works in Order (1) shall be undertaken by Australian Qualification Framework (AQF) level 3 arborists with all appropriate insurances (the arborists).

3. The respondents shall provide the applicant with at least 72 hours’ emailed notice of the date and approximate start time of the works and shall attach a copy of the arborists’ qualifications and insurance Certificates of Currency to such email.

4. The tree works shall comply with Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016, and shall be undertaken during reasonable daytime working hours.

5. The applicant shall provide the arborists with all required access to undertake the tree removal.

J Douglas

Acting Commissioner of the Court

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Decision last updated: 04 April 2024