Rawlings v Marshall

[2021] NSWLEC 1268

Land and Environment Court

New South Wales

Medium Neutral Citation:

Rawlings v Marshall [2021] NSWLEC 1268

Hearing dates:

11 May 2021

Date of orders:

11 May 2021

Decision date:

11 May 2021

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1) The application for tree removal is granted.

(2) Within 30 days of the date of these orders, or otherwise as soon as it is possible to safely carry out the works considering the nearby damaged asbestos, the respondent is to remove the Swamp Mahogany in the rear garden of his property to no more than 500 mm above ground level. Tree removal works are to be carried out in accordance with Safe Work Australia 2016 ‘Guide to managing risks of tree trimming and removal work’.

(3) The respondent is to give the applicant one week’s notice of the works via a posted letter.

(4) The applicant is to allow any access necessary for the works to be completed.

(5) The application for compensation is refused.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – tree caused damage to neighbouring property during storm – whether the tree owner could have prevented the damage – orders for tree removal – no orders for compensation

Legislation Cited:

State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017

Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 6(3), 7, 10, 12

Cases Cited:

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

Texts Cited:

AS 4373-2007 ‘Pruning of amenity trees’

Safe Work Australia 2016 ‘Guide to managing risks of tree trimming and removal work’

Category:

Principal judgment

Parties:

Vicki Rawlings (Applicant)
Philip James Marshall (Respondent)

Representation:

V Rawlings (Litigant in Person) (Applicant)
P Marshall (Litigant in Person) (Respondent)

File Number(s):

2021/22023

Publication restriction:

No

Judgment

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

Background to the application

1. On Boxing Day 2020 a large branch fell from a tree in the rear garden of the Blackett property belonging to Philip Marshall (‘the applicant’). The long branch fell across the side boundary, significantly damaging the garage on the neighbouring property belonging to Vicki Rawlings (‘the respondent’). Mrs Rawlings has 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 removal of Mr Marshall’s tree, and for Mr Marshall to pay for the removal of her garage and construction of a new garage. Mr Marshall appreciates the need to remove what is now a problematic tree, but disputes that he should pay any compensation to Mrs Rawlings.

Framework for this decision

2. Before orders can be made under Pt 2 of the Trees Act, the Court must be satisfied that:

• the applicant has made reasonable effort to reach agreement with the tree owner (s 10(1)(a) of the Trees Act); and

• the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or is likely to cause injury to any person (s 10(2)).

3. The Court must also consider a range of matters set out at s 12 of the Trees Act.

The applicant made reasonable effort

4. Mrs Rawlings has had little contact with Mr Marshall, but the opportunity was available at today’s onsite hearing for her to communicate her preferred outcome. Although he disagreed that he should pay compensation, he agreed with Mrs Rawlings that a second smaller tree, not part of her application, should be removed, and said it would be removed. This indicates to me that effort has been made, and agreement has been reached on some matters but not all.

The tree damaged the applicant’s property

5. The mature Swamp Mahogany (Eucalyptus robusta) (‘the tree’) is approximately 15 metres tall with a stem diameter of approximately 70 cm. (No arboricultural evidence has been adduced, so I rely on my own arboricultural expertise and experience in making this decision.) The species is typical of garden plantings in the 1960s and ‘70s. The tree’s crown is thick with healthy green foliage. It appears that the tree was pruned poorly some decades ago, resulting in the presence of large branches of epicormic origin. These branches are more weakly attached than the tree’s ‘original’ branches. One such branch approximately 30 cm or more in diameter, fell during a storm on 26 December 2020, severely damaging Mrs Rawlings’ garage roof and building frame. The garage is old; its roof is asbestos. The garage cannot be repaired – it must be demolished and removed and, if Mrs Rawlings wants a garage, replaced.

6. The fallen branch also damaged Mr Marshall’s garage, which also has an asbestos roof. His insurer has put temporary fencing and signage around the tree and garage to prevent access until remedial works are carried out.

7. It is not disputed that Mr Marshall’s tree has damaged Mrs Rawlings’ property. It follows that the Court can make orders, the nature of which rely on consideration of s 12 matters.

Relevant matters considered

8. Here the relevant matters at s 12 are considered.

9. The tree is near the centre of Mr Marshall’s back garden. Long branches, if they fail, would reach Mrs Rawlings’ property, as the December branch failure did.

10. It appears that removing the tree would ordinarily require consent from Blacktown City Council, although consent is not required under the State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 for the removal of vegetation that a council is satisfied is a risk to human life or property. Blacktown City Council has not been asked to inspect this tree. Regardless, if the Court makes orders for tree pruning or removal, Council consent is not required for those works (s 6(3) of the Trees Act). I informed Mr Marshall of this during the onsite hearing.

11. Several other branches in the crown, of a similar size and nature to the fallen branch, are poorly attached and likely to fall in the foreseeable future. Pruning the tree to mitigate the risk of damage or injury would require the removal of more than half the tree’s crown, leaving a tree of poor quality and amenity. Such pruning would not be in accordance with AS 4373-2007 Pruning of amenity trees. To prevent the tree causing further damage, its removal is required.

12. The tree makes some contribution to shade and amenity, and to the landscape of the respondent’s property. It contributes to the local urban forest. It is otherwise not culturally or environmentally significant.

Could the respondent have reasonably prevented the tree causing damage?

13. The damage resulting from branch failure allows the Court to make orders, but in considering appropriate orders, the Court must consider any actions and omissions of either party that might have contributed to the damage, and any steps taken by the parties to prevent damage (s 12(h) of the Trees Act).

14. The situation here resembles that in Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152, where Chief Judge Preston discussed fault and negligence generally at [183]-[188], his Honour making relevant findings on these issues at [222].

15. Here, I find that Mr Marshall did not plant the tree, nor did he take any action to increase the likelihood of its branches failing. The tree appears healthy, such that only an arborist would be likely to recognise its history and identify structural defects. Mr Marshall did not adopt and knowingly continue a nuisance. Given the tree’s healthy appearance, he had no reason to remove the tree.

16. Mrs Rawlings has lived at her property for some years, and has known several tenants who have rented Mr Marshall’s property. She said that several years ago a tenant was attempting to prune a small branch from the tree and another small branch fell and hit his head, which required stitches. Mrs Rawlings went to the agent managing Mr Marshall’s property and reported this. The circumstances leading to the injury sound unusual, and it seems possible that the injury was perhaps related to the tenant’s actions. But even the shedding of a small branch, as is common for large gum trees in suburbia, would not necessarily suggest that a tree is entirely dangerous, or that it should be removed.

17. Mrs Rawlings stated that another branch once fell onto the clothesline on the respondent’s property. She did not report that to the rental agent.

18. Most unfortunately for Mrs Rawlings, her property was uninsured for four weeks. The tree branch failed during this period. However, this is not a reason to shift the cost of damage to Mr Marshall.

Conclusion

19. The tree must be removed, and Mr Marshall will be responsible for its removal. There is no reason for costs associated with Mrs Rawlings’ property damage to be shifted to Mr Marshall.

Orders

20. As a result of the foregoing, the Court orders:

1. The application for tree removal is granted.

2. Within 30 days of the date of these orders, or otherwise as soon as it is possible to safely carry out the works considering the nearby damaged asbestos, the respondent is to remove the Swamp Mahogany in the rear garden of his property to no more than 500 mm above ground level. Tree removal works are to be carried out in accordance with Safe Work Australia 2016 ‘Guide to managing risks of tree trimming and removal work’.

3. The respondent is to give the applicant one week’s notice of the works via a posted letter.

4. The applicant is to allow any access necessary for the works to be completed.

5. The application for compensation is refused.

……………………………….

D Galwey

Acting Commissioner of the Court

**********

Decision last updated: 19 May 2021