Smith v Waddingham

[2020] NSWLEC 1089

Land and Environment Court

New South Wales

Medium Neutral Citation:	Smith v Waddingham [2020] NSWLEC 1089
Hearing dates:	16 December 2019
Date of orders:	03 March 2020
Decision date:	03 March 2020
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The Court orders that: (1)   Within two months of the date of these orders, the respondents shall engage an AQF level 3 qualified climbing arborist who also holds an AQF level 5 arboriculture qualification, and all appropriate insurances, to conduct an aerial inspection of T1, which includes both the area of apparent swelling about 14 metres up the main trunk, immediately below the co-dominant junction, and the canopy zone overhanging the nature strip. (2)   In conjunction with this inspection, this arborist shall prune all deadwood with a diameter greater than 20mm at the branch collar and any damaged branches, in the area of the canopy of T1 overhanging the adjacent nature strip, and within two metres of the parties’ common property boundary. No live foliage outside these specifications shall be removed. (3)   Within two months of the date of these orders, the respondents shall engage an AQF level 3 qualified climbing arborist, with all appropriate insurances, to prune T2, so as to remove the large live branch stub protruding from one of the trunks towards the applicant’s property, back to the branch collar, plus prune all deadwood with a diameter greater than 20mm at the branch collar and any damaged branches, which are located within two metres of the parties’ common property boundary. No live foliage outside these specifications shall be removed. (4)   The respondent shall engage an AQF level 5 arborist, with all appropriate insurances, ideally the person who undertook Order (1), two years, four years and six years after the implementation of Order (1) to assess the condition of both the trees’ canopies, and the trees’ stability in the ground, and thus clarify the cumulative impact of the construction damage. After each inspection, this arborist shall provide a brief condition report including recommendations for any required works, to both parties. (5)   All tree work must comply with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016, and AS4373: 2007 (Pruning of Amenity Trees). (6)   Each party may get up to two quotes for each of these works, from contractors who meet the requirements specified in Orders (1) – (4). Should the parties not agree on a choice of contractor, the cheapest quote should be chosen. The respondent shall provide the applicant with a copy of the paid invoice upon completion of each of these works, and the applicant shall reimburse the respondent 65% of the total of each paid invoice within 30 days of receipt of the invoice. Should the parties not agree on the choice of contractor, and the respondent proceeds with a contractor who has not provided the cheapest quote for the ordered works, the applicant shall be required to reimburse the respondent for 65% of the cheapest quote within 30 days of receipt of the invoice. (7)   Access to the applicant’s land, should it be needed for these works, is subject to 48 hours written notice being provided to the applicants by email, and is to be gained during reasonable working hours.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS): dropping branches; roof damage; apprehension of injury
Legislation Cited:	Environmental Planning and Assessment Act 1979 Trees (Disputes Between Neighbours) Act 2006 Uniform Civil Procedures Rules 2005
Cases Cited:	Ashworth v Joyce [2007] NSWLEC 357 Black v Johnson (No 2) [2007] NSWLEC 513 Robson v Leischke (2008) 159 LGERA 280; [2008] NSWLEC 152 Yang v Scerri [2007] NSWLEC 592
Texts Cited:	AS4373: 2007 (Pruning of Amenity Trees) Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016
Category:	Principal judgment
Parties:	Geoffrey John Smith (Applicant) Trissia Waddingham (Respondent)
Representation:	G Smith (Litigant in person) (Applicant) N Cox (Agent) (Respondent)
File Number(s):	2019/263339
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an application, pursuant to s 7 of Part 2 of the Trees (Disputes between Neighbours) Act 2006 (the Act) by Mr Smith of Sanctuary Point, regarding two Southern Mahogany (Eucalyptus botryoides) trees (T1 and T2) located in the adjacent neighbouring property.

2. Mr Smith’s property, and the property of their neighbour, Mrs Waddingham (the respondent) are located on fairly level sites which face slightly east of north. The trees are positioned in the front yard about five metres apart, and about a metre from the common side boundary which runs from approximately north to south. Mrs Waddingham’s property is to the west of Mr Smith’s.

3. The trees are mature. T1 is approximately 24 metres tall with a canopy spread averaging 18 metres, while T2 is approximately 23 metres tall with a canopy spread of about 13 metres. The diameter at breast height (DBH) of both tree’s trunks exceeds one metre.

The on-site hearing

4. Mr and Mrs Smith attended the hearing, along with one of Mrs Waddingham’s daughter’s, Ms Cox, who acted as her agent. She was accompanied by Mr Beisler, arborist, who provided a report on the trees, in which he acknowledged reading and being bound by the Expert Witness Code of Conduct, found in Schedule 7 of the Uniform Civil Procedures Rules 2005.

5. The hearing commenced in the respondent’s yard, with an inspection of the base of the trees, and the surrounding root crown zone, where the primary woody roots emanate laterally from the lower trunks.

6. Both trees appeared to be sound and strong in this area, and there was no apparent soil heaving, uplift, or cracking that would suggest that the trees lacked firm anchorage. This judgment was reinforced by the relatively dense healthy foliage cover of both trees, as this is normally indicative of sound root systems functioning well, physiologically. The foliage also appeared free of obvious insect damage.

7. I assessed the branch scaffolds from various ground level positions in both parties’ front yards, and from the adjacent road, and noted locations on the trees where limbs had shed in the past. These were relatively limited, however, as the majority of the canopies overhanging the applicant’s dwelling and front yard had been extensively pruned by contractors employed by Mr Smith, after permission was granted, in February 2017 by Ms Brown, Mrs Waddingham’s other daughter.

The applicant’s case

8. Mr Smith seeks orders on the basis of damage to property, and risk of injury. He proposes that

“Within 30 days the owner is to engage and pay for an arborist with the appropriate insurance cover, to remove both Swamp Mahogany (sic) gum trees to ground level and have the stumps treated to reduce the likelihood of termite infestation.”

9. Based on ‘Preliminary Hearing Notes’ provided by Mr Smith, he purchased his property several years ago, prior to February, 2014. In a letter to Mrs Waddingham dated 13 February 2017, he advises that he has become increasingly concerned with the safety of, and damage caused by (branches dropping from) the two large gum trees, and that he plans “to replace the cottage on my property with a substantial new house.”

10. He adds that “There are several large roots from the trees encroaching on my property that will need to be removed when I build. I have been advised that as the roots are large, their removal will make the trees unstable.”

The respondent’s case

11. Mr Smith’s proposed order for tree removal is resisted by the respondent. Her daughter, Ms Brown, who, along with Ms Cox, hold joint Power of Attorney for Mrs Waddingham, notes in a letter, dated 20 February 2017, in response to Mr Smith’s, that the trees were “substantial in their size” when her family bought their property more than 50 years ago. She adds (in summary), that despite the fact that Sanctuary Point is subject to high winds, at no stage have any members of the four generations of her family who have regularly used the property, ever sustained an injury, or near injury, as a result of falling branches from the two trees.

12. In this letter, Ms Brown notes advice received from Shoalhaven Council (Council) that a neighbour is not “permitted to remove, impact on or damage the roots of the trees in question in the redevelopment of their property for the very reason that this would render the trees unstable.” She adds that “you are entitled to trim the branches overhanging a dwelling or building, however any contact with the trunk or root system is prohibited.”

Jurisdictional requirements

13. 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.

14. The Court is obliged to consider a number of matters pursuant to s 10 of the Act.

15. As required by s 10(1), I am satisfied that there has been an attempt by the applicant to reach agreement with the owner of the land on which the tree is situated, as Mr Smith provided evidence showing repeated unsuccessful approaches to secure Mrs Waddingham’s cooperation with respect to tree removal.

16. The next major test that is posed, by s 10(2) of the Act, is that the Court must be satisfied that the tree concerned 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. Only one of these four tests must be satisfied for the case to advance.

Damage to roofs

17. Mr Smith provided extensive photographic evidence of damage to the corrugated iron roof of his new dwelling as a result of branches falling from the trees, and noted that insurance had been claimed to cover the cost of repairs resulting from damage caused by a branch or branches falling on the roof of his original garage.

18. Therefore, I am satisfied that T1 and or T2 have caused damage, and thus s 10(2) of the Act is engaged.

19. As the trees’ canopies have been severely pruned back to near the common boundary, thus removing almost all branches that had previously extended over parts of Mr Smith’s dwelling and front yard, the likelihood of damage in the near future is significantly reduced. Based on Yang v Scerri [2007] NSWLEC 592 (Yang), as a rule of thumb, the near future is deemed to be 12 months.

20. The likelihood of additional damage in the near future will be further reduced by the removal of deadwood, and damaged or poorly attached branches proximal to the boundary, which I shall order.

Risk of Injury

21. Guidance with respect to risk of injury is also gained from Yang, where the Court considers the risk posed by a tree based on the characteristics of the tree/s, any history of previous failures and the circumstances of the site apparent at the time of the hearing.

22. Previous branch failures resulting in risk of injury allegedly occurred in mid-2016, where a dead branch landed on the driveway within a few metres of Mrs Smith (R1), and in February 2019, where a branch landed on the roof near the common boundary, in close proximity of an electrician working on the fusebox under the eave (R2).

23. The likelihood of similar occurrences in Mr Smith’s property has been significantly reduced with the extensive pruning of the overhanging canopy, and will be further reduced by the pruning which I shall order. Mr and Mrs Smith noted that the vast majority of branches that had fallen from the trees were dead.

24. Mr Smith also notes the risk of injury to pedestrians on the adjacent nature strip. Unlike damage, which relates only to the applicant’s property, Preston CJ in Robson v Leischke (2008) 159 LGERA 280; [2008] NSWLEC 152 (Robson) at [175], notes that;

“the applicant’s concern about likely injury can be but does not necessarily have to be injury to a person who would be on the applicants land. Hence, an application can be made when an applicant is concerned that a tree on adjoining land is likely to cause injury to persons on public land in the vicinity.”

25. Ashworth v Joyce [2007] NSWLEC 357 concerns dead trees adjacent to a public reserve and applies this advice from Robson at [175]. The nature strip in this situation is therefore covered by the jurisdiction of the Act.

26. Though the pedestrian activity on the adjacent nature strip is likely to be infrequent, the canopy spread of T1 is quite broad in this area, and, being high above the ground, any falling branches would gain considerable speed as they drop. Thus, though the likelihood of branches impacting people and causing injury is extremely low, the consequences in terms of injury may be serious.

27. Though the risk of injury from falling branches is low for both the parties, and for pedestrians, I will order the aerial inspection of T1 recommended by Mr Beisler, so as to include both the area of apparent swelling about 14 metres up the main trunk, immediately below the co-dominant junction, and the canopy zone overhanging the nature strip. This will inform specifications for removal of any damaged branches, along with deadwood, which will further reduce risk.

28. In both his application, and at the hearing, Mr Smith emphasised the extent of root damage which the trees endured, as a consequence of his house construction, to highlight, and or perhaps cast aspersions on the tree’s current and future stability in the soil. In his Tree Dispute Claim Details at Q5, Mr Smith notes that “During the construction of the new house a significant number of large roots were removed from the eastern side of both T1 and T2 as they were in the way of the foundations and plumbing works.”

29. Though Mr Smith spoke of a very large pile of tree refuse from T1 and T2 having been removed from his side of the common boundary, after further probing, it emerged that much of it may have come from a tree removed from the rear yard during the house development. It also became apparent that the original garage and concrete driveway which likely covered much of the trees’ woody root zone in the Smith’s property were already at a lower level than the respondents, and that they displayed no signs of damage by roots.

30. This may imply that the extent of removal of structural roots incurred during the house construction was less than initially suggested, in that some or many major roots may have grown sufficiently deep, as is relatively common in sandy soils, as are found here, to have avoided excavation impact. The Smith’s were not present during the construction period.

31. It is difficult to gain clarity without below ground excavation, but this conclusion is supported by the presence of a healthy canopy cover on both the trees, more than two years post construction, and the absence of any obvious soil cracks or uplift around the tree bases. These two factors, viewed in conjunction, suggest a functional root system.

32. Further, while there is uncertainty around the extent, and impact of root damage to the trees, the key stabilising tension roots, growing primarily in the respondent’s yard, appear unaffected.

33. While there is often a considerable time lag before construction damage impact exhibits on tree canopies, initially usually as tip dieback and epicormic suckering, given the uncertainty as to the extent of root damage, the lack of evidence of construction impact thus far, and the significant environmental services these remnant trees provide, it is appropriate to monitor the trees over the medium term, allowing for a more informed response to be implemented.

Discretionary matters

34. In making an order, the Court considers relevant matters in s 12 of the Act.

1. The trees are located close to the boundary. Although they are mature, in the absence of constraints they would continue to grow for many years, though more slowly as they age. (s 12(a));

2. Extensive pruning or removal of the trees requires consent from Council under the Environmental Planning and Assessment Act 1979 (s 12(b)). Given that Council advised Ms Brown that a neighbour is not permitted to remove, impact on or damage the roots of the trees in the redevelopment of their property ([12]), yet supervised, approved and certified the Smith’s development, which included such damage, it appears that Council was in breach of its own policy.

3. The trees have been heavily pruned to remove the majority of the canopy which previously overhung the Smith’s property. Pruning of live foliage intrinsically has a negative impact, particularly on older trees. It reduces the tree’s photosynthetic capacity, causing the tree to use limited stored starches to maintain existing cells, and produce new growth in an attempt to re-establish root/canopy equilibrium. Any future pruning should thus be as infrequent and minimal as possible, and should ideally be based on specifications written by the AQF level 5 arborist who conducts ongoing inspections (s 12(b2)).

4. The trees contribute to protection from the sun, and from wind, to landscaping, and to the amenity of the respondent’s property. They are large prominent trees which are clearly visible from neighbouring houses. As such, they have significant intrinsic value to local public amenity (s 12(b3), (e) and (f)).

5. Being a species indigenous to the south-east coast of NSW, the trees’ flowers and fruit, and their various cavities and hollows amongst trunks and branches could be expected to provide food and or shelter for local fauna and thus would contribute to local biodiversity. As trees age, their environmental benefits and value generally increases (s 12(d)).

6. Given the extensive root spread, the trees are likely to be providing benefit to soil stability (s 12(g)).

7. Section 12(i) considers anything, other than the tree, that has contributed, or is contributing, to any such damage or likelihood of damage, including any act or omission by the applicant and the impact of any trees owned by the applicant. Particularly as scope existed to locate the new dwelling and garage further away from the trees, it is unreasonable to locate them under the canopy of large, long established trees, and not to expect to take a level of responsibility for the refuse that will naturally fall from it, or for any risk incurred.

1. This contribution is amplified by the fact that Mr Smith was put on notice by Ms Brown as to the root damage likely to impact the trees as a result of the planned construction, but appeared to seek no professional advice, arboricultural or otherwise, nor take steps to avoid damage, readily available through established and commonly implemented practices such as careful location of primary woody roots, and subsequent installation of services in trenches tunnelled around and below them.

2. To the contrary, Mr Smith appeared to seek leverage from the below ground damage, in casting aspersions about the trees.

3. In Black v Johnson (No 2) [2007] NSWLEC 513 (Black), the Court has published a tree dispute principle which says, in summary, that the fact that the tree was there first should not impact on whether or not some order should be made about the tree but, subject to a range of matters discussed in the principle, the prior existence of the tree may be a relevant matter to be considered when deciding who should meet the cost of carrying out any orders which the Court might make.

Conclusion

35. Based on the evidence adduced, I have reached the following conclusions:

1. I am satisfied that T1 and or T2 have caused damage, and thus s 10(2) of the Act is engaged.

2. The risk of injury associated with the trees has been significantly reduced by the heavy pruning which removed the majority of the canopies of both T1 and T2, previously overhanging the Smith’s property.

3. An aerial inspection of T1 will be ordered to clarify the structural integrity of trunks and branches. In conjunction with this inspection, the canopy overhanging the adjacent nature strip will be pruned of any large and moderate sized deadwood and or damaged branches to reduce the current low risk even further. In achieving this objective, pruning of live foliage should be minimised.

1. T2 shall be pruned to remove a large branch stub with associated epicormic growth back to the branch collar. Any other large and moderate sized deadwood and or damaged and poorly attached branches growing within two metres of the common boundary shall be removed.

2. The trees shall be monitored through inspections completed every two years for the next six years, to assess and clarify the impact of the construction damage inflicted on the tree’s roots. It would be prudent to also have the tree inspected after major storm events, but I will leave this to the respondent’s discretion.

3. Consistent with the tree dispute principle in Black, where ‘the tree was there first’, and, because Mr Smith employed no measures to reduce damage to tree roots, regardless of having been notified prior of the imperative to do so, the majority of the financial burden for the application of these orders shall rest with the applicant.

Orders

36. The Court orders that:

1. Within two months of the date of these orders, the respondents shall engage an AQF level 3 qualified climbing arborist who also holds an AQF level 5 arboriculture qualification, and all appropriate insurances, to conduct an aerial inspection of T1, which includes both the area of apparent swelling about 14 metres up the main trunk, immediately below the co-dominant junction, and the canopy zone overhanging the nature strip.

2. In conjunction with this inspection, this arborist shall prune all deadwood with a diameter greater than 20mm at the branch collar and any damaged branches, in the area of the canopy of T1 overhanging the adjacent nature strip, and within two metres of the parties’ common property boundary. No live foliage outside these specifications shall be removed.

3. Within two months of the date of these orders, the respondents shall engage an AQF level 3 qualified climbing arborist, with all appropriate insurances, to prune T2, so as to remove the large live branch stub protruding from one of the trunks towards the applicant’s property, back to the branch collar, plus prune all deadwood with a diameter greater than 20mm at the branch collar and any damaged branches, which are located within two metres of the parties’ common property boundary. No live foliage outside these specifications shall be removed.

4. The respondent shall engage an AQF level 5 arborist, with all appropriate insurances, ideally the person who undertook Order (1), two years, four years and six years after the implementation of Order (1) to assess the condition of both the trees’ canopies, and the trees’ stability in the ground, and thus clarify the cumulative impact of the construction damage. After each inspection, this arborist shall provide a brief condition report including recommendations for any required works, to both parties.

5. All tree work must comply with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016, and AS4373: 2007 (Pruning of Amenity Trees).

6. Each party may get up to two quotes for each of these works, from contractors who meet the requirements specified in Orders (1) – (4). Should the parties not agree on a choice of contractor, the cheapest quote should be chosen. The respondent shall provide the applicant with a copy of the paid invoice upon completion of each of these works, and the applicant shall reimburse the respondent 65% of the total of each paid invoice within 30 days of receipt of the invoice. Should the parties not agree on the choice of contractor, and the respondent proceeds with a contractor who has not provided the cheapest quote for the ordered works, the applicant shall be required to reimburse the respondent for 65% of the cheapest quote within 30 days of receipt of the invoice.

7. Access to the applicant’s land, should it be needed for these works, is subject to 48 hours written notice being provided to the applicants by email, and is to be gained during reasonable working hours.

………………………….

J Douglas

Acting Commissioner of the Court

**********

Decision last updated: 03 March 2020