Walter v Pattison

[2021] NSWLEC 1260

Land and Environment Court

New South Wales

Medium Neutral Citation:

Walter v Pattison [2021] NSWLEC 1260

Hearing dates:

12 May 2021

Date of orders:

12 May 2021

Decision date:

12 May 2021

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1) The application to remove the tree is refused.

(2) The application for compensation is refused.

(3) Within 60 days of the date of these orders, the respondents are to engage a suitably qualified arborist (minimum AQF level 3), with all appropriate insurances, to prune the tree to:

(a) remove or reduce the longest branches over the applicant’s property, removing no more than 10% total live crown mass (see attached photograph for indication of pruning works), and

(b) remove all deadwood greater than 20 mm in diameter.

(4) In May each year, beginning May 2022, the respondents are to engage a suitably qualified arborist (minimum AQF level 3), with all appropriate insurances, to prune the tree to:

(a) remove all deadwood greater than 20 mm in diameter, and

(b) remove any branches identified as hazardous, removing no more than 15% total live crown mass.

(5) All pruning works ordered above are to be done in accordance with AS4373–2007 ‘Pruning of amenity trees’ and Safe Work Australia 2016 ‘Guide to managing risks of tree trimming and removal work’.

(6) The respondents are to give the applicant 7 days’ notice in writing of each pruning event ordered above.

(7) The applicant is to arrange any access required for each pruning event ordered above to be completed during reasonable hours of the day.

(8) The exhibits are returned, except for Exhibit A.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – tree has caused damage – tree is likely to cause injury – orders for annual pruning

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 6(3), 7, 9, 10, 12

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292

Texts Cited:

AS 4373-2007 ‘Pruning of amenity trees’

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

Category:

Principal judgment

Parties:

Janelle Walter (Applicant)
Ken Pattison (First Respondent)
Shu-Yi Stevenson (Second Respondent)
Jessie Stevenson (Third Respondent)

Representation:

J Walter (Litigant in Person) (Applicant)
K Pattison (Litigant in Person) (First Respondent)
S-Y Stevenson (Litigant in Person) (Second Respondent)
J Stevenson (Litigant in Person) (Third Respondent)

File Number(s):

2021/14658

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. Janelle Walter (‘the applicant’) has owned her Freshwater property for more than 10 years. A large gum tree grows in the back garden of the neighbouring property belonging to Ken Pattison, Shu-Yi Stevenson and Jessie Stevenson (‘the respondents’). Over the years, branches have fallen from the tree onto Ms Walter’s property, which is tenanted, causing some minor damage and almost causing injury. Ms Walter 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 removed, and for the respondents to pay compensation for damage and for ongoing maintenance of her property.

Framework for this decision

2. The Trees Act requires that several tests be satisfied before the Court can make orders. The Court must be satisfied that the applicant has made reasonable effort to reach agreement with the tree’s owners (s 10(1)(a) of the Trees Act). The Court must also be satisfied, at s 10(2), that the tree 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 a person.

Reasonable effort to reach agreement

3. Ms Walter has written to Mr Pattison over the years (the second and third respondents were only added to the property title in 2020) requesting, among other things, that some action be taken to prevent branches falling on to her property. I am satisfied she has made reasonable effort.

Damage and injury

4. Dead branches that have fallen from the tree were sitting in Ms Walter’s property at this morning’s onsite hearing. Another dead branch fell onto her property during the hearing. Some level of injury would result if such a branch hit somebody. The garden is relatively small, and the tree’s crown also overhangs the rear patio of the dwelling on Ms Walter’s property. I am satisfied that the tree is likely to cause injury.

5. Taking Ms Walter’s submissions at face value, I am satisfied that the tree has caused damage when similar branches broke roof tiles, pierced gutter guard, and cracked a window of her dwelling.

6. It follows that the Court can make orders as it sees fit at s 9 of the Trees Act, after considering the relevant matters at s 12.

Relevant issues

7. In considering relevant matters, I must consider whether any acts or omissions of the parties have led to the tree causing damage, or being likely to cause damage or injury. A summary of relevant historical events follows.

• Ms Walter has owned her property since 2009; her mother owned the property before that.

• Mr Pattison has owned the respondents’ property since 1989. The tree was already there in 1989.

• Branches have fallen periodically from the tree. Ms Walter obtained quotes from arborists to prune the tree. She also regularly cleans debris from her gutters.

• The tree was pruned by arborists engaged by the respondents in 2016, 2017, March 2020 and April 2021.

• The respondents applied to Northern Beaches Council (‘Council’) in 2018 to remove the tree. They received consent only for pruning the tree annually, removing up to 15% of the tree’s crown.

• The respondents are carrying out works to their property, extending the rear of their dwelling closer to the tree. They obtained relevant consent for these works.

8. The applicant submitted that she should not have to regularly clear debris that results from the neighbouring tree. She submitted that tenants live in fear of the tree, and that more serious injury or damage is likely, and could be avoided by removing the tree. She submitted that roots have blocked her sewer. She submitted that the respondents only maintain the tree when pressed to do so.

9. The respondents submitted that they prune the tree according to the consent granted by Council. They will carry out any works ordered by the Court.

Findings

Compensation

10. The respondents have carried out the works permitted by Council, pruning the tree twice in the last two years. They have therefore taken reasonable action, and are not responsible for knowingly continuing a nuisance, so they will not be ordered to pay any compensation for damage that has occurred to the applicant’s property.

Maintenance

11. The Court established a principle in Barker v Kyriakides [2007] NSWLEC 292 regarding property maintenance and debris from trees. Property owners are expected to maintain their properties, even where that includes clearing up debris that falls from trees in their neighbourhood. There is nothing here that would lead me to deviate from this principle. The applicant remains responsible for maintaining her property.

Sewer

12. No evidence was adduced demonstrating that Ms Walter’s sewer was blocked by roots from the gum tree. No orders can be made on that basis.

Risk of injury

13. I accept that further branch failures are possible, and that pruning has reduced the crown above the respondents’ property more than above the applicant’s. The tree can be pruned further to minimise the risk of branches falling onto Ms Walter’s property.

14. I am somewhat surprised at the level of encroachment permitted for the respondents’ house additions into the tree’s root zone. Large trees need large soil volumes to maintain healthy crowns. Construction impacts may lead to some decline in the tree’s health over time, but this is not likely to lead to branch failure in the near future. This is not a basis for orders, but is simply noted here for future reference.

15. Some deadwood remains in the tree’s crown above the applicant’s property, and more is likely to develop in future. Removal of deadwood will have no adverse impacts on tree health. The tree was pruned recently, so further pruning of live branches should be limited to no more than 10% of total live crown mass. Due to s 6(3) of the Trees Act, no Council permission is required for the orders below.

Orders

16. As a result of the above, the Court orders:

1. The application to remove the tree is refused.

2. The application for compensation is refused.

3. Within 60 days of the date of these orders, the respondents are to engage a suitably qualified arborist (minimum AQF level 3), with all appropriate insurances, to prune the tree to:

1. remove or reduce the longest branches over the applicant’s property, removing no more than 10% total live crown mass (see attached photograph for indication of pruning works), and

2. remove all deadwood greater than 20 mm in diameter.

4. In May each year, beginning May 2022, the respondents are to engage a suitably qualified arborist (minimum AQF level 3), with all appropriate insurances, to prune the tree to:

1. remove all deadwood greater than 20 mm in diameter, and

2. remove any branches identified as hazardous, removing no more than 15% total live crown mass.

5. All pruning works ordered above are to be done in accordance with AS4373–2007 Pruning of amenity trees and Safe Work Australia 2016 Guide to managing risks of tree trimming and removal work.

6. The respondents are to give the applicant 7 days’ notice in writing of each pruning event ordered above.

7. The applicant is to arrange any access required for each pruning event ordered above to be completed during reasonable hours of the day.

8. The exhibits are returned, except for Exhibit A.

……………………………….

D Galwey

Acting Commissioner of the Court

Photograph for indication of pruning works (586757, pdf)

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Decision last updated: 18 May 2021