Taylor v Campbell

[2023] NSWLEC 1730

Land and Environment Court

New South Wales

Medium Neutral Citation:

Taylor v Campbell [2023] NSWLEC 1730

Hearing dates:

22 November 2023

Date of orders:

22 November 2023

Decision date:

22 November 2023

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1)   The application is refused.

(2)   The exhibits are returned, other than Exhibit A.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – damage and injury – likelihood of damage or injury not demonstrated

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, ss 7, 10

Cases Cited:

Black v Johnson (No 2) [2007] NSWLEC 513

Texts Cited:

Australian Standard, AS4373-2007 ‘Pruning of amenity trees’

Category:

Principal judgment

Parties:

Glenn Taylor (Applicant)
Ron Campbell (Respondent)

Representation:

Counsel
G Taylor (Self-represented) (Applicant)
R Campbell (Self-represented) (Respondent)

File Number(s):

2023/297993

Publication restriction:

Nil

Judgment

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

Background

1. COMMISSIONER: A mature forest red gum (Eucalyptus tereticornis) (the tree) grows near the back corner of the Scotts Head property belonging to Mr Campbell (the respondent). Part of the tree’s crown overhangs the neighbouring property belonging to Mr Taylor (the applicant).

2. Mr Taylor 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 tree to be pruned and for any roots extending into his property to be removed.

3. The hearing took place onsite, allowing the Court to inspect the tree, both properties, and the surrounding environment.

Framework for this decision

4. The key jurisdictional tests in these proceedings are found 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.

Reasonable effort to reach agreement

5. The applicant and the respondent discussed the tree during February 2023. Mr Campbell is unwilling to carry out the works that Mr Taylor requested. I am satisfied that the applicant made a reasonable effort to reach agreement.

Damage

Applicant’s evidence and submissions

6. Mr Taylor claims that the tree has caused damage to his property and is likely to cause further damage. A dead branch fell from the tree and pierced Mr Taylor’s pool cover. I observed the small hole that remains in the pool cover during the onsite hearing. Mr Taylor says the tree has not caused any other damage.

7. Mr Taylor is concerned that more branches will drop from the tree and damage his pool cover, pool deck, and furniture on the deck. He pointed out small dead branches on his deck.

8. Mr Taylor is concerned that roots will damage his pool and paving. He submitted that a tree of this size must have roots spreading into his property, and that such roots are likely to damage his property. He conceded that no roots were encountered during excavation works for his pool or during the installation of his deck.

9. Mr Taylor provided a one-page letter from arborist Glen Gwilliam. Mr Gwilliam thought the tree was unsuitable for its location and recommended its removal.

Respondent’s evidence and submissions

10. Mr Campbell pointed out that no substantial branches have fallen from the tree during his occupation of his property. In particular, no branches fell from the tree during extreme winds experienced in the last three months.

11. Mr Campbell engaged Michael Sullings, an arborist, to assess and report on the tree. Mr Sullings carried out a comprehensive risk assessment and concluded that the tree posed a low risk. He found no works were required to manage risk at present, but recommended annual inspections of the tree.

12. Mr Campbell submitted that Mr Taylor has contributed to any risk of damage by placing his deck and furniture beneath that part of the tree that overhangs his property. The tree was there when Mr Taylor purchased his property.

Findings

13. Mr Gwilliam’s letter does not include his qualifications. It is not a comprehensive report and does not include a logical and clear risk assessment using an accepted risk methodology. I give the letter little weight in this decision.

14. Mr Sullings is an AQF level 5 arborist. His comprehensive report includes a risk assessment using the widely accepted Tree Risk Assessment Qualification (TRAQ) methodology. He applied the method logically and thoroughly. I accept his conclusion that the risk is so low that works are not required.

15. The tree has lost leaves recently, most likely as a result of drought stress. If the tree does not recover fully, some larger deadwood might require removal in future.

16. I find that the tree damaged the applicant’s property when a small dead branch fell and pierced the pool cover. This enlivens the Court’s jurisdiction to make orders at s 10(2)(a) of the Trees Act. However, I would only make orders if I thought that further damage is likely, and that such damage would be significant enough to justify those orders. I note that the pool cover remains functional, despite the small hole, which Mr Taylor has seen no need to repair. Such damage is minor. Considering the tree’s history, and Mr Sullings’ risk assessment, damage of any significance does not seem likely in the near future. Therefore, I see no need to make orders on this element of the application.

17. Turning to the tree’s roots, I accept Mr Taylor’s proposition that the tree’s roots are likely to extend onto his property. This is true for many urban trees. Mr Taylor has presented no evidence that any roots are likely to damage his property in the near future. In fact, both Mr Taylor and Mr Campbell agreed that no roots were found when the pool was excavated. I also note that Mr Taylor had the opportunity to install a root barrier around his pool, but chose not to, despite being aware of the tree’s proximity at the time of installing the pool. No orders will be made on this element of the application.

Injury

18. Mr Taylor’s primary concern is the safety of people on his property. He is concerned that branches will fall and injure people using the deck and pool. He is also concerned that the tree might fall and injure people on his property. Again, I accept Mr Sullings’ risk assessment on this issue. The risk of injury is so low as to not warrant orders from the Court. As Mr Campbell pointed out, Mr Taylor has chosen to build a large deck that extends beneath the tree. This is not to say that any risk arising should be disregarded, but if the risk of injury was such that orders should be made, the Court would consider this in determining who should pay for those works – see the tree dispute principle at [15] of Black v Johnson (No 2) [2007] NSWLEC 513. Mr Campbell informed Mr Taylor that he can prune overhanging branches if he wishes, provided this is done by a qualified arborist in accordance with current standards. The relevant standard is AS4373-2007 Pruning of amenity trees. Given that the Court is not making orders in these proceedings, this is a matter that Mr Taylor might wish to explore.

Orders

19. The Court orders:

1. The application is refused.

2. The exhibits are returned, other than Exhibit A.

……………………………….

D Galwey

Acting Commissioner of the Court

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Decision last updated: 30 November 2023