Ritchie v Orr

[2008] NSWLEC 1464

Land and Environment Court

of New South Wales

CITATION:	Ritchie v Orr & anor [2008] NSWLEC 1464
PARTIES:	APPLICANT Mervyn Ritchie RESPONDENTS David & Lorraine Orr
FILE NUMBER(S):	20813 of 2008
CORAM:	Moore C - Thyer AC
KEY ISSUES:	Evidence - Trees (Neighbours) :- Admissibality of expert report Standard Directions in tree disputes No UCPR acknowledgment
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006 Uniform Civil Procedure Rules 2005
DATES OF HEARING:	20 October 2008
EX TEMPORE JUDGMENT DATE:	20 October 2008
LEGAL REPRESENTATIVES:	APPLICANT In person RESPONDENTS In person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C
THYER AC

20 October 2008

08/20813 Mervyn Ritchie v David & Lorraine Orr

JUDGMENT

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

The consequence of the Court’s decision in this application is the making of formal orders pursuant to s 9 of the Trees (Disputes Between Neighbours) Act 2006 . These orders are not reproduced as part of this decision but a copy the Court’s Orders may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders are available on the Court’s web site at

1 COMMISSIONERS: On 17 York Street, Beecroft, two large eucalypts grow adjacent to the boundary with Mr Ritchie's property at 115 Copeland Road. Mr Ritchie originally made an application to the Court seeking an investigation of and possible removal of these trees, but, after consideration of material further material provided by Mr and Mrs Orr, the owners of the trees, he sought leave to amend his application in terms of material contained in a report from Tree Talk Arboricultural Consulting, (being a report which he has proposed to be accepted as evidence in the proceedings). We will return to the admissibility of this document shortly.

2 However, leave has been granted to amend his application so that it is now an application for the removal of all deadwood, 20 mm in diameter or above, at the point of attachment on each of the trees; the removal of several live branches from the trees and a requirement for ongoing monitoring of the stability of the more eastern and larger of the trees. Compensation is also sought. The application to amend was not opposed and we are proceeding on the basis of the amended application.

3 The matter came before the Court for a preliminary hearing on 19 September 2008 at which time the Standard Directions for tree disputes were made – relevantly including the terms of Direction 14, which requires, in part, that any written expert evidence prepared after the date of the directions is to include an acknowledgement of and agreement to be bound by the relevant provisions of the Uniform Civil Procedure Rules and Expert Witness Code of Conduct in Schedule 7 to those Rules.

4 The report which has founded the basis for the amendment to Mr Ritchie's application was made after the date of those directions and does not include the relevant acknowledgements and acceptance of the Uniform Civil Procedure Rules provisions. Mr Orr has objected to the admissibility of the report. Mr Ritchie says that, to the best of his recollection, the terms of the directions were drawn to the attention of the report's author. Ms Wiley, the author of the report, has not made the required acknowledgment and we have therefore declined, given the date of the report and the specific nature of the directions, to admit that report as evidence in the proceedings (although we have permitted Mr Ritchie to amend his application to reflect the terms of its conclusions).

5 We have carefully inspected both of the trees from both the Orr property and the Ritchie property. There are a number of factual findings that we make with respect to those trees.

6 First, Mr Ritchie has asked us to conclude that there has been, in the past, extensive pruning of the western side of the more eastern of the trees and that this has caused a distortion of its canopy and weighting of the canopy massing towards his property. During the course of our inspection, we were able to observe only two places on this tree where there appeared to be branch collars resulting from the removal of branches (whether by pruning or by natural action).

7 We have carefully consider the relationship between the two trees and the fact that the more eastern of the trees, at the point where it has grown its canopy above the western multi-trunk tree, has a canopy spread to the west. We are satisfied, from the appearance of the trees and the absence of obvious indications of branch removal, that the pattern of growth of the two trees reflects their relationships topographically; the rate of growth of the two trees; and the fact that the more eastern of the two trees has grown up and out when it has been in the light above the more western of the two trees. We are not satisfied, on the basis of any observational evidence available to us, that there has been extensive pruning of that tree.

8 We have examined the amount of deadwood that is contained in both trees and we have observed that there are significant amounts of deadwood in both trees – some of it being deadwood which is more than 100 mm in diameter at the point of attachment to the growing parts of the tree. We have observed that significant elements of this deadwood are over Mr Ritchie's property (including areas where there is a significant target likelihood – being the area of the swimming pool which we accept, on his evidence, is used regularly by him and his family).

9 The differences between the parties, in light of the various elements of the expert evidence that has been admitted (being a letter from Mr Gatenby which predates the directions and a report by Mr Marsden, a consulting arborist retained by Mr and Mrs Orr [which report includes, on page 9 of the document, the appropriate reference to the Uniform Civil Procedure Rules], are now confined to the diameters to which deadwood should be pruned; the question of what would be the relevant ongoing maintenance required for the trees; and whether a number of live limbs should be removed from the trees.

10 In light of the rejection by us of the report by Ms Wiley, there is no written evidentiary basis upon which we can deal with Mr Ritchie’s submission that monitoring should be undertaken of the trees. However, we propose to respond to that submission on the basis of ordinary first principles of tree management.

11 First, we have concluded, given the amount of deadwood and the fact that branches of comparatively small nature, if detaching from a tree and falling in a vertical plane, can cause injury, that it is appropriate to order that deadwood removal down to 20 mm at the point of attachment is the appropriate size of the wood to be removed.

12 We carefully examined the live branches which Mr Ritchie asks us to order be removed. He has made a submission that they are epicormic branches growing as a result of some earlier pruning. We have carefully considered the nature of their attachment to the trunks of the tree and to the pruning (or at least absence of evidence of pruning) in the vicinity of those points. We are not satisfied that there is any evidence that these branches are epicormic growth. There is no obvious fault with any of the points of attachment despite the fact that there has been one live branch fall. All of the other elements of material that have fallen from the trees onto the Ritchie property are of deadwood.

13 We are satisfied that there is no basis to order the removal of any live branches provided we order, on an ongoing basis, an appropriate removal of deadwood at regular intervals.

14 Mr Gatenby suggests, in his letter to Mrs Orr of 2 June 2008, that there should be a regular form of maintenance pruning undertaken after inspection of the tree. Such a prescription, we are satisfied, is one which is not sufficiently certain to be able to be incorporated in orders of the Court.

15 We are satisfied that it is appropriate to order a deadwood removal, down to 20 mm at the point of attachment, on a three-yearly rotational basis. We are satisfied that doing that will provide a sufficient period of time within which to ensure that the likelihood of injury to any person on the Ritchie property is adequately and prudently prevented.

16 The orders will therefore provide that there should be such a deadwood reduction pruning undertaken within 60 days of the date of the orders; the reduction of pruning of the deadwood should be undertaken down to 20 mm in diameter at the point of attachment; should be undertaken consistent with Australian Standard 4373-07; the pruning should be undertaken by an arborist with AQF level 3 qualifications and appropriate insurances; access is to be permitted, as volunteered by Mr Ritchie, from his property for that purpose but that such access is to be on reasonable notice at a reasonable hour of the day and the Ritchies are entitled to supervise such access; and, on a regular basis within every three years of the date of the first pruning similar pruning to the same standard should be undertaken subject to the same conditions.

17 We now turn to the question of monitoring the lean of the tree. The evidence of Mr Dennis Marsden, a consulting arborist, provided by the Orrs, says in his conclusion, as follows:

• the trees do not have an excessive lean;
• the trees are not undergoing subsidence;
• the trees have not been partially wind thrown;
• the root plates appear to be firmly anchored; and
• the trees have not been subjected to torsional loads to the point of fracture.

18 We have no evidence to the contrary of any expert nature that has been admitted in the proceedings. However, we have also carefully examined the indicia that Mr Ritchie has taken us to on the more easterly of the trees and we have examined for ourselves the ground around the trees. We are satisfied that there is no evidence that would indicate that that tree is likely to fall in the near future and cause damage to Mr and Mrs Ritchie's property. There is no evidence that, with the exception of the deadwood removal that we have ordered, there is any other basis to consider any further examination of that tree. To order some form of long-term monitoring and make the removal of that tree contingent of the outcome of that monitoring would be contrary to long established principles settled by the Court of Appeal about certainty in decision making. In any event, that does not arise as the absence of any indication that there is some concern in that regard, coupled with the evidence of Mr Marsden, causes us to refuse to make any monitoring orders with respect to that tree on the merits.

19 We turn, finally, to the question of a claim for compensation made by Mr Ritchie. There are a number of elements to his claim for compensation which we dealt with at the commencement of the hearing when we pointed out to him that claims for consequent damage (such as increased consumption of swimming pool chemicals) do not fall within the jurisdiction of the Court nor do Commissioners of the Court have jurisdiction to deal with any of the claims for costs that are contained in his claim for compensation.

20 That leaves two elements in his claim for compensation. The first is a claim for repairs to the housing for his swimming pool pump. This is contained in a quotation to him dated 9 October 2007 for ~ $530. It is clear (and Mr Ritchie does not dispute this) that that damage was caused to his swimming pool pump-house prior to his first drawing this matter to the attention of Mr Orr on Sunday, 23 September. The question arises as to whether, as a matter of prudence, we should have regard to prior discussions that might have taken place between them and consider that there are some foreshadowing of the risk of damage to that structure. We are not satisfied that we have any appropriate basis upon which we should draw such a conclusion. We do not need to deal with Mr Orr’s submission that the proposed repairs are inappropriate because, as we do not consider that Mr Orr was on appropriate specific notice of the likelihood of damage to this structure prior to the date that the damage occurred, there is no proper notice basis upon which a claim can be made and we dismiss that element of Mr Ritchie’s claim.

21 With respect to the damage to the pool blanket (which is in the sum of $771 for its replacement), Mr Ritchie conceded that approximately 50% of the damage to the pool blanket had been occasioned prior to it being drawn to Mr Orr’s attention in December 2007. The Orr’s have been on notice that this was a risk from that time onwards and we are satisfied that the response of Mr Orr (dated 24 December 2007) suggesting that Mr Ritchie should contact his insurance company and deal with the matter through this company does not constitute a proper and appropriate response to Mr Ritchie's concerns. The damage to Mr Ritchie's pools cover was caused by Mr and Mrs Orr’s tree. To the extent that that cover was damaged after the matter was first drawn to the attention of the Orrs in December 2007, we consider that the Orrs should compensate the Ritchie's for that – that equals the sum of $385.50 (being half the amount in the quote dated 2 November 2007). However, we do not propose to order that some be made payable immediately but that it should be paid by the Orrs to Mr Ritchie within 30 days of the date of a provision to them by Mr Ritchie of a receipted invoice for the supply and making available to Mr Ritchie of a new pool cover. We considered that the contribution should be made for the replacement of the pool cover rather than as a compensatory payment itself.

Tim Moore Peter Thyer

Commissioner of the Court Acting Commissioner of the Court