Torrez v Clifford

[2022] NSWLEC 1495

Land and Environment Court

New South Wales

Medium Neutral Citation:

Torrez v Clifford [2022] NSWLEC 1495

Hearing dates:

12 September 2022

Date of orders:

12 September 2022

Decision date:

12 September 2022

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders that:

(1) The application is granted.

(2) The Respondents are to engage and pay for a suitably qualified arborist (minimum AQF level 3) with all appropriate insurances to carry out the following pruning works to the tree within 60 days of the date of these orders:

(a) remove all deadwood greater than 40 mm in diameter;

(b) reduce the length of all branches above the Applicant’s property by at least 50%, pruning each branch to a suitable lateral branch where possible; or, where there are no suitable lateral branches, remove the branch back to its branch collar; and

(c) remove any other branches identified by the arborist as being likely to fail in the foreseeable future.

(3) All tree work is to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’ and AS 4373–2007 ‘Pruning of amenity trees’.

(4) If the tree is removed within 60 days of the date of these orders, orders (2) and (3) lapse.

(5) The Respondents are to provide the Applicant with at least 7 days’ notice of the pruning works ordered above, or of tree removal works if they remove the tree within 60 days of the date of these orders.

(6) The Applicant is to provide any access required during reasonable hours of the day to complete tree pruning works ordered above, or tree removal works if the tree is removed within 60 days.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – neighbouring tree – damage to property – consent already obtained to remove the tree – orders sought for pruning the tree – application granted

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 9, 10, 12

Cases Cited:

Yang v Scerri [2007] NSWLEC 592

Texts Cited:

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

Standards Australia, AS 4373–2007 ‘Pruning of amenity trees’

Category:

Principal judgment

Parties:

William Torrez (Applicant)
Ross Abraham Clifford (First Respondent)
Patricia Margaret Clifford (Second Respondent)

Representation:

Counsel:
H Packham (Solicitor) (Applicant)
R Clifford (Self-represented) (First Respondent)
P Clifford (Self-represented) (Second Respondent)

Solicitors:
Packham Solicitors (Applicant)

File Number(s):

2022/161290

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. COMMISSIONER: A large gum tree (the tree) on the Wyong property belonging to Patricia and Ross Clifford (the Respondents) overhangs the neighbouring property owned by William Torrez (the Applicant). In November 2021, a branch fell from the tree through Mr Torrez’s roof. The Cliffords obtained consent from Central Coast Council to remove the tree. They then obtained quotes from tree contractors to remove the tree. For various reasons, the works have not been done. Mr Torrez 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 Cliffords to prune the tree to remove dead and dangerous branches over his property, and an order for the Cliffords to pay the cost of filing his application.

The hearing

2. The final hearing in these proceedings took place onsite, allowing the Court to inspect the tree and the surrounding environment. Mr Packham, solicitor, represented the Applicant; the Respondents were self-represented. I bring my own arboricultural expertise and experience to this decision.

Framework

3. The orders that Mr Torrez seeks are orders that the Court can make at s 9 of the Trees Act. However, Commissioners of the Court do not have the power to make the costs order sought by the Applicant – should he wish to pursue that element, Mr Torrez would need to file a Notice of Motion to be determined by a Judge or the Registrar of the Court.

4. Orders can only be made under Pt 2 of the Trees Act if the Court is satisfied of certain matters at s 10.

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.

5. Before making orders, the Court must consider relevant matters at s 12 of the Trees Act.

12 Matters to be considered by Court

Before determining an application made under this Part, the Court is to consider the following matters:

(a) the location of the tree concerned in relation to the boundary of the land on which the tree is situated and any premises,

(b) whether interference with the tree would, in the absence of section 6 (3), require any consent or other authorisation under the Environmental Planning and Assessment Act 1979 or the Heritage Act 1977 and, if so, whether any such consent or authorisation has been obtained,

(b1) whether interference with the trees would, in the absence of section 25 (t) (Legislative exclusions) of the Native Vegetation Act 2003, require approval under that Act,

(b2) the impact any pruning (including the maintenance of the tree at a certain height, width or shape) would have on the tree,

(b3) any contribution of the tree to privacy, landscaping, garden design, heritage values or protection from the sun, wind, noise, smells or smoke or the amenity of the land on which it is situated,

(c) whether the tree has any historical, cultural, social or scientific value,

(d) any contribution of the tree to the local ecosystem and biodiversity,

(e) any contribution of the tree to the natural landscape and scenic value of the land on which it is situated or the locality concerned,

(f) the intrinsic value of the tree to public amenity,

(g) any impact of the tree on soil stability, the water table or other natural features of the land or locality concerned,

(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,

(j) such other matters as the Court considers relevant in the circumstances of the case.

The Applicant made a reasonable effort

6. Mr Torrez has discussed the tree with the Cliffords. Discussions between the parties resulted in the Cliffords applying for Central Coast Council’s (Council’s) consent to remove the tree. The Cliffords have found it difficult to get a contractor to carry out the works, prompting Mr Torrez to commence these proceedings. I am satisfied that the Applicant made a reasonable effort to reach agreement with the Respondents in this matter (s 10(1)(a) of the Trees Act).

The tree

7. The tree, which stands on the Cliffords’ property close to the common boundary shared with Mr Torrez, towers above both their dwellings. Part of the local vegetation community, the tree is either Eucalyptus grandis or E. saligna, probably the former. It is more than 30 metres tall with a stem diameter of 140 cm or more. Large dead branches are present throughout the tree’s crown, including the central leader that reaches above the rest of the crown, and branches over Mr Torrez’s property. A long narrow wound extends down the stem from the upper crown to the tree’s base. It is consistent with damage from lightning strike, as might be expected given that the top of this tree is taller than most surrounding vegetation. Lightning strike is not uncommon and does not necessarily kill the struck tree or make the entire tree dangerous.

The tree has caused damage

8. In November 2021 a dead branch fell from the tree, damaging Mr Torrez’s tiled roof and resulting in the SES being called out and a claim being paid by Mr Torrez’s insurer. Other dead branches were on the roof at the time of the onsite hearing, and more roofing tiles have been broken. The tree is the only likely source of these branches, as no other tree overhangs Mr Torrez’s property. The Cliffords do not dispute that their tree has caused damage.

The tree is likely to cause further damage

9. The Cliffords submitted that they recently engaged a contractor to “do what works they could”. Pruning cuts were observed at the onsite hearing, but these were mostly over the Cliffords’ property. Long overextended branches and large dead branches remain above Mr Torrez’s property, including some over his dwelling.

10. I find that the tree has caused damage to Mr Torrez’s property, and is likely to cause further damage to his property in the near future, a period I regard as being the next 12 months as per the principle in Yang v Scerri [2007] NSWLEC 592. Therefore, the Court’s jurisdiction is enlivened and orders can be made.

Relevant matters

11. I have considered the matters at s 12 of the Trees Act, and discuss those that are relevant below.

12. The tree is close to the common boundary and overhangs Mr Torrez’s dwelling.

13. Central Coast Council’s consent is required to prune or remove the tree. The Cliffords have obtained Council’s consent to remove the tree.

14. The tree would not be adversely affected by the pruning proposed by Mr Torrez. The proposed pruning would sufficiently mitigate the likelihood of branch failure and further damage to Mr Torrez’s property.

15. The tree is part of, and contributes to, the local vegetation community. As a food source for native fauna, it provides habitat value. It contributes to public amenity, being visible from the broader neighbourhood. It provides ecosystem services that include shading and cooling, carbon sequestration, pollutant removal and rainfall interception. Its roots contribute to stabilisation of the steep land on which it grows.

16. Mr Torrez has taken reasonable steps to prevent further damage by raising his concerns with the Cliffords and then commencing these proceedings when no satisfactory outcome was reached.

17. The Cliffords have taken some steps to prevent further damage. Wanting to avoid the need for, and expense of, regular repeated pruning of the tree, they determined to remove the tree. They applied for and obtained Council consent for this. They obtained quotes from tree contractors to remove the tree. Correspondence from the selected contractor shows that they experienced several challenges in carrying out the works, including difficulties with crane providers and the weather, and eventually forfeited their engagement. The Cliffords still intend to remove the tree, but have so far been unable to find someone to commit to the work.

18. I find that pruning the tree would minimise the risk of further branch failure and should prevent damage to Mr Torrez’s property in future. While I will make orders for pruning the tree, this does not prevent the Cliffords from engaging a contractor to remove the tree, as per their intentions, within the 60-day timeframe to be included in the orders. Should they be unable to engage a contractor to remove the tree within 60 days, they are required to carry out the pruning works ordered below. They may still remove the tree at a later date, as Council’s consent is valid to 27 April 2024.

Orders

19. As a result of the foregoing, the Court orders that:

1. The application is granted.

2. The Respondents are to engage and pay for a suitably qualified arborist (minimum AQF level 3) with all appropriate insurances to carry out the following pruning works to the tree within 60 days of the date of these orders:

1. remove all deadwood greater than 40 mm in diameter;

2. reduce the length of all branches above the Applicant’s property by at least 50%, pruning each branch to a suitable lateral branch where possible; or, where there are no suitable lateral branches, remove the branch back to its branch collar; and

3. remove any other branches identified by the arborist as being likely to fail in the foreseeable future.

3. All tree work is to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’ and AS 4373–2007 ‘Pruning of amenity trees’.

4. If the tree is removed within 60 days of the date of these orders, orders (2) and (3) lapse.

5. The Respondents are to provide the Applicant with at least 7 days’ notice of the pruning works ordered above, or of tree removal works if they remove the tree within 60 days of the date of these orders.

6. The Applicant is to provide any access required during reasonable hours of the day to complete tree pruning works ordered above, or tree removal works if the tree is removed within 60 days.

……………………………….

D Galwey

Acting Commissioner of the Court

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Decision last updated: 13 September 2022