Stack v Kahler (No 2)

[2023] NSWLEC 1268

Land and Environment Court

New South Wales

Medium Neutral Citation:

Stack v Kahler (No 2) [2023] NSWLEC 1268

Hearing dates:

23 August 2022 and 10 February 2023

Date of orders:

1 June 2023

Decision date:

01 June 2023

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1)   The application to remove or prune the tree is upheld to the extent of the Court’s pruning order (Order 1) made on 23 December 2022.

(2)   The application for compensation is refused.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – boundary tree principally on the respondent’s land – actions of the parties – whether further orders are required for compensation or ongoing tree management

Legislation Cited:

Land and Environment Court Act 1979, s 22

Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 4, 7, 12

Cases Cited:

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

Stack v Kahler [2022] NSWLEC 1731

Texts Cited:

Pittwater 21 Development Control Plan 2004

Category:

Principal judgment

Parties:

Barbara Stack (First Applicant)
Rodney Reece (Second Applicant)
Cameron Kahler (Respondent)

Representation:

B Stack (Self-represented) (First Applicant)
R Reece (Self-represented) (Second Applicant)
C Kahler (Self-represented) (Respondent)

File Number(s):

2022/140944

Publication restriction:

No

Judgment

Background

1. COMMISSIONER: Barbara Stack and Rodney Reece (the applicants) 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 a neighbouring Flooded Gum (Eucalyptus grandis) and compensation for property damage. Following the onsite hearing, the Court made orders on 23 December 2022 for Cameron Kahler (the respondent) to have the tree pruned and the base of the tree surveyed relative to the common boundary: Stack v Kahler [2022] NSWLEC 1731. The boundary survey was filed with the Court on 23 January 2023. The Court heard further submissions at a hearing on 10 February 2023.

The tree is principally on the respondent’s land

2. Byrne & Associates surveyed the base of the tree and the common boundary, in accordance with the Court’s orders of 23 December 2022, and prepared a survey report dated 17 January 2023. Diagram A in the report shows that, at ground level, the tree’s stem straddles the boundary but is principally on the respondent’s land. The report shows 91.3% of the stem’s cross-sectional area is on the respondent’s land, while 8.7% is on the applicants’ land. For the purposes of the Trees Act, the tree is on the respondent’s land (s 4(3) of the Trees Act).

The tree belongs to the respondent

3. Although it straddles the boundary and is therefore a ‘boundary tree’, the survey findings show that the stem’s centre, at ground level, is well within the respondent’s land. It can be assumed that the tree was once planted, or sown by natural causes, on the respondent’s land at a point close to the current centre of its stem. Chief Justice Preston discussed issues of tree ownership according to common law in Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152, at [151]–[153]. As the subject tree once grew entirely within the respondent’s property, I find the respondent owns the tree.

Actions and omissions of the parties

4. The Court’s earlier orders in this tree dispute mitigated the risk of the tree causing further damage to the applicants’ property, or injury to a person. The application for compensation remained to be determined, following the findings of the boundary survey and clarification of tree ownership. The Court is required to consider the matters at s 12 of the Trees Act before making orders, including at s 12(h) and (i):

…

(h) if the applicant alleges that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property:

(i) 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, and

(ii) any steps taken by the applicant or the owner of the land on which the tree is situated to prevent or rectify any such damage,

(i) if the applicant alleges that the tree concerned is likely to cause injury to any person:

(i) anything, other than the tree, that has contributed, or is contributing, to any such likelihood, including any act or omission by the applicant and the impact of any trees owned by the applicant, and

(ii) any steps taken by the applicant or the owner of the land on which the tree is situated to prevent any such injury,

…

5. In the earlier judgment, I considered the acts and omissions of the parties at [28]–[32]:

“[28] It was clear to me during submissions at the onsite hearing that both parties want an outcome that will avoid an ongoing dispute, and they have taken steps to resolve the dispute.

[29] The Respondent and his wife have proceeded on the understanding that the tree is on their property. They have maintained the tree, engaging an arborist to prune it. Pruning has done more to reduce the risk of branch failure over their property than over the Applicants’ property. They submitted that they were unable to gain approval from the Applicants for the arborist to access the Applicants’ property. The Applicants submitted that they were willing to grant access but wanted to discuss the pruning beforehand. Circumstances at the time gave them no opportunity for such a discussion. Correspondence filed by the parties supports these submissions. It is not uncommon for the nature of communication between neighbours involved in a tree dispute to make it difficult for the parties to agree on an outcome.

[30] On my reading of Council’s website, the Applicants could have engaged an arborist to remove deadwood from the tree’s crown above their property at any time. Instead they have relied upon the Respondent to mitigate the risk they perceive to their property, without success.

[31] The Applicants obtained Ms Mackenzie’s report but did not provide a copy to the Respondent prior to commencing these proceedings. Mr Kahler submitted that they would have acted on the report had they received it earlier. After receiving the report with a copy of the application, the Respondent engaged Mr Austin to assess the tree. Mr Austin’s report is comprehensive, providing clear recommendations (see above) that the Respondent intends to follow.

[32] The Applicants have provided invoices for emergency repairs to their roof of their second dwelling following damage caused by falling branches ($1,210 total at question 14, Exhibit A). They have provided quotes for completing the repairs (total $7,045). An alternative quote includes replacing the entire roof of their second dwelling so that it has a consistent appearance rather than repaired areas of new roofing on the older roof ($10,500). Another quote covers the repair of their broken solar hot water tube ($355.86). Repairs to the roof of their principal dwelling are quoted separately ($1,045). A quote for repairing their retaining wall amounts to $2,750.”

6. As the tree’s owner, the respondent is principally responsible for its management – for taking reasonable action to mitigate risk of damage or injury. When branches fell and damaged the applicants’ property, the respondent had no expert opinion informing him that limb failure was likely. Some limbs fell during extreme weather – it is feasible that they might have fallen even if the respondent had obtained and acted upon expert advice. The respondent has reasonably fulfilled his duty of care by maintaining the tree in accordance with professional advice he received.

7. The respondent submitted that, of the two damage incidents involving branch failures that occurred since they moved to their property, one of those was a live branch that fell during a severe storm (19 December 2021). That failure was not unusual, he argued, in that numerous trees and branches fell in their suburb that day. The other branch that caused damage on 5 September 2021 was dead. The respondent submitted that he was unable to gain written permission for his arborist to access the applicants’ property for his arborist to prune over their property. The applicants wished to discuss the extent of pruning with the arborist, and apparently were unwilling to proceed until this occurred. However, the pruning was not being undertaken according to any agreement between the parties, such as one the applicants had with their former neighbours. Therefore there was no reason for the extent of pruning to be conditional upon the applicants’ satisfaction. I find that the respondent acted reasonably in engaging an arborist and seeking permission for access to the applicants’ property.

8. The applicants stated that they had an agreement with the tree’s previous owner for pruning the tree and sharing the cost of these works. They have come to no such agreement with the respondent, and showed no interest in doing so. Even without a similar agreement in place with the respondent, the applicants could apparently engage an arborist to remove deadwood over their property. The Pittwater 21 Development Control Plan 2004 (the Pittwater DCP) at Section B4.22 describes circumstances in which Council does not need to authorise a permit for clearing vegetation:

“Council’s authorisation of a Vegetation Clearing Permit is not required for:

…

Reasonable maintenance involving trimming and pruning of up to ten percent (10%) of a tree's canopy within a 12 month period (all pruning works must be in accordance with Australian Standard AS 4373:2007 Pruning of amenity trees).

…

The removal of a tree, where the base of the trunk of the tree at ground level, is located within two (2) metres of an existing approved building (not including decks, pergolas, sheds, patios or the like, even if they are attached to a building).

The removal of deadwood from a tree.

…”

9. Notes to this section explain that: “The cutting down, pruning or removal by persons other than the owner must have written permission from the owner.”

10. The applicants are, and have been, able to take action to mitigate risk to their property. The respondent has expressed his willingness to provide his permission for pruning allowed above: removal of any deadwood, and pruning up to 10% of the tree’s live canopy.

11. Looking to the past, regarding compensation for damage, I see no reason to order the respondent to contribute to any repairs. He has acted according to professional advice. He did not have the professional advice obtained by the applicants, so could not act on that. Apart from asking the respondent to prune the tree over their property, the applicants have not taken the actions they might have: obtaining the respondent’s permission to prune the tree, engaging an arborist to prune the tree above their property, nor providing a copy of professional advice they received prior to applying to the Court.

Are further orders for tree management required?

12. The orders of 23 December 2022 addressed the risks identified at the hearing. The respondent and the applicants now each have professional advice regarding the tree’s ongoing maintenance. Both arborists – Ms Mackenzie and Mr Austin – found that the tree could be retained with ongoing management. The respondent’s proposed alternative orders included following Mr Austin’s recommendations for remedial pruning, regular biennial inspections and removal of deadwood. Remedial pruning has been ordered. I see no need for ordering ongoing inspections and pruning into the future. The respondent understands his responsibility for managing the tree, and has suitable professional advice for doing so. The applicants understand their ability to take further action should they wish. The fact that a dispute has come to Court, and orders have been made, does not abrogate the parties of their ongoing responsibilities: to themselves, their neighbours and to the environment. Nor does it restrict their ability to take further actions beyond those ordered by the Court. As per the Pittwater DCP, the tree can be pruned annually, and deadwood can be removed at any time, without Council permission. Due to its proximity to a dwelling, Council’s authorisation is not required to remove the tree. While it is the Court’s aim to resolve all aspects of a dispute as far as possible (s 22 of the Land and Environment Court Act 1979), the Court cannot prevent ongoing disputes in all cases. Even at the hearing of 10 February 2023, there was disagreement between the parties as to whether or not the respondent’s recent pruning satisfied the Court’s earlier orders.

Orders

13. The Court orders:

1. The application to remove or prune the tree is upheld to the extent of the Court’s pruning order (Order 1) made on 23 December 2022.

2. The application for compensation is refused.

D Galwey

Acting Commissioner of the Court

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Decision last updated: 01 June 2023