Watt v Menz

[2023] NSWLEC 1808

Land and Environment Court

New South Wales

Medium Neutral Citation:

Watt v Menz [2023] NSWLEC 1808

Hearing dates:

04 December 2023

Date of orders:

04 December 2023

Decision date:

04 December 2023

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

The Court orders that:

(1) Within 14 days of the date of these Orders, the respondents shall pay the applicant $280.00 by Electronic Fund Transfer (E.F.T) as compensation for pool shed damage.

(2) The tree has two pairs of trunks, which meet at co-dominant junctions. The respondents, at their expense, shall employ Australian Qualification Framework (AQF) level 3 arborists with all appropriate insurances (the arborists), to prune the trunk which, of the four, is leaning and growing over the applicant’s pool, down to the highest major co-dominant stem junction. The works shall be completed within 90 days.

(3) Within 7 days of completion of the works in Order (2), the respondents shall email the applicant a paid itemised invoice for the works. Within 7 days of receipt of the paid itemised invoice, the applicant shall transfer the sum of 25% of the total of the paid invoice to the respondents by E.F.T.

(4) All pruning works shall comply with AS4373:2007 - Pruning of amenity trees and the Safework Australia, Guide to managing the risks of tree trimming and removal works, 2016.

(5) The applicant shall allow all reasonable access for the arborists to complete the works upon receipt of 72 hours’ notice by email.

(6) All works shall be completed during reasonable daytime working hours.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to pool shed roof – apprehension of further damage, and of injury to persons

Legislation Cited:

Trees (Disputes between Neighbours) Act 2006,

Pt 2, ss 7, 8, 9, 10, 12

Cases Cited:

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

McPherson v Lake [2017] NSWLEC 1081

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

Yang v Scerri [2007] NSWLEC 592

Texts Cited:

AS 4373—2007 Australian Standard Pruning of amenity trees, 2007

Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work 2016

Category:

Principal judgment

Parties:

Maree Watt (Applicant)
Scott Menz (First Respondent)
Fiona Menz (Second Respondent)
Ellie Menz (Third Respondent)

Representation:

M Watt (Self-represented) (Applicant)
F Menz (Self-represented) (Second Respondent)
E Menz (Self-represented) (Third Respondent)

File Number(s):

2023/312696

Publication restriction:

Nil

Judgment

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

1. COMMISSIONER: This is an application by Ms Maree Watt (the applicant) of North Wagga Wagga, regarding a Eucalyptus camaldulensis (River Red Gum) (the tree) growing on an adjacent property. The neighbouring property is to the north, north-west of the applicant’s land and is owned and occupied by Scott, Fiona, and Ellie Menz (the respondents).

2. The tree was one of a row of mature River Red Gums growing close to the parties’ common boundary, and its canopy overhung the applicant’s swimming pool. On page 6 of the Application Claim Details (Exhibit B), Ms Watt contended they were “monstrous trees that have outgrown the area”, and claimed that branches were constantly falling from the tree/s.

3. The applicant said she had made ongoing requests since 2019 for the respondents to prune the trees and reduce their height (page 9 of Exhibit B), “to make our home and yard safe” (page 6 of Exhibit B). Ms Watt claimed that in 2019, Mr Menz acknowledged the tree was dangerous and agreed to prune it but did not proceed with pruning due to the cost. The respondents also declined an invitation to engage in mediation through a Community Justice Centre (CJC).

4. When a branch or branches recently fell from the tree and damaged the applicant’s pool shed, Ms Watt again sought intervention by the respondents to avoid future damage and injury. Considering the parties’ fruitless past interactions, when no action was taken with the tree, Ms Watt lodged an application, pursuant to s 7 of Pt 2 of the Trees (Disputes between Neighbours) Act 2006 (the Trees Act), which proposed removal, or partial trimming of the tree.

The onsite hearing

5. Both parties were self-represented at the onsite hearing, where the trees and the damage were inspected in each property, prior to oral submissions.

6. The tree was mature and large. It appeared healthy, with vigour and live foliage density typical of its species and advanced age. The configuration of the trees in a row along the boundary suggested they had been planted, many years prior. River Red Gum is a hardy, long-lived species that is indigenous to the Wagga Wagga district. It is an important component of many ecological communities.

The respondents’ submissions

7. The respondents, who operate a hotel on their property with outdoor entertainment and seating, contended that the afternoon summer shade provided by the trees was critical for the commercial success of this area.

8. The respondents claimed to proactively manage their trees with a cautious, preventative approach. By way of substantiation, the respondents submitted a tree risk report from Wade Ryan Contracting, dated 10 January 2022, in which the tree was identified as Tree 7. The tree had been determined as presenting a low risk to people on the respondents’ land.

9. The report was sound and based on current techniques. It included a comparison of the status and condition of some trees relative to a 2017 inspection. Tree works proposed in the report, including re-inspection in 5 years or after major storms, were appropriate recommendations.

Jurisdictional requirements

10. 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.

11. The applicant provided evidence of satisfying the requirements of s 8 of the Trees Act: to serve notice of the application and the orders sought more than 21 days prior to the proceedings, respectively to the respondents (at s 8(1)(a)), and to Wagga Wagga Council (at s 8(1)(b)).

12. The Court’s ability to make orders is limited, 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.

13. If the jurisdictional tests at s 10 of the Trees Act are satisfied, the Court can make orders such as those at s 9 to remedy, restrain or prevent damage to property, or to prevent injury to a person, as a consequence of the tree.

14. Before determining the nature of any orders, the Court must consider a range of matters set out at s 12 of the Trees Act.

Reasonable effort to reach agreement

15. In her application, Ms Watt noted ongoing requests to the respondents since 2019 for tree removal or pruning and an unsuccessful attempt to organise mediation through a CJC. Notwithstanding that there is no requirement for the Menz family to agree to mediation, this evidence, which was uncontested by the respondents, is sufficient to satisfy the applicant’s requirement to make a reasonable effort to reach agreement with the owner of the land on which the tree is situated.

16. Consequently, s 10(1)(a) of the Trees Act was engaged, and s 10(1)(b) was also satisfied by the prior engagement of s 8. Therefore, the principal jurisdictional tests in this matter are at s 10(2) of the Trees Act.

Damage caused by the tree

17. From photographs in Exhibit B and my site assessment, I was satisfied that branches fell from the tree and damaged the applicant’s pool shed. The respondents did not dispute that the tree caused the damage. As a result, s 10(2)(a) of the Trees Act was engaged.

18. The respondents objected to the applicant’s submission that branches fell from multiple River Red Gum trees as they noted that the application related only to the tree that damaged the shed. Ms Watt did not seek leave to amend and broaden the proposed orders, so the single tree remained the subject of the application.

19. The tree’s trunk is divided into two co-dominant stems. About 1 – 2 metres above this junction, both stems divided again, such that the tree had four main leaders. Three of the leaders were fairly erect but one arched over the applicant’s swimming pool.

20. Based on the arboricultural expertise that I bring to the Court, the main leader appeared strong and stable, irrespective of its arched shape. Viewed from ground level, the co-dominant junctions, and branch junctions and live branches throughout the tree, appeared structurally sound. I saw nothing to indicate that the leader growing over the applicant’s pool was likely to cause further damage in the near future, where, in the decision in Yang v Scerri [2007] NSWLEC 592, the near future is defined, as a rule of thumb, to be a period of one year.

Likelihood of injury to persons

21. The applicant claimed that the tree posed a genuine likelihood of injury to her extended family, particularly in and around the pool.

22. While assessment of damage under the Trees Act relates only to the applicant’s property, consideration of injury can relate to other areas surrounding the tree. In Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152, at [175], Preston CJ, said:

“[175] In contrast to the requirement that damage caused by a tree be to the applicant’s property (s 7 and s10(2)(a)), likely injury can be to “any person” (s 7 and s 10(2)(b)). That phrase is ample enough to include the applicant, but the person need not be the applicant. Moreover, there is no locational requirement that the person who is likely to be injured be on the applicant’s land. Persons who might be likely to be injured could be on the applicant’s land but, also, could be on the adjoining land on which the tree is situated or on other land in proximity (including public roads, pathways or reserves) that might be impacted by the tree, or part of it, failing.”

23. Based on the decision in McPherson v Lake [2017] NSWLEC 1081 (“McPherson”), at [10], when considering injury, the Court must assess the risk posed by a tree in the foreseeable future based on the characteristics of the tree/s, the history of any failures, any other relevant evidence, and the circumstances of the site apparent at the time of the hearing.

24. Although the main leader which is arched over the applicant’s pool appeared strong and stable, there was an increasing level of epicormic growth and deadwood towards the tip of the branch. The deadwood was sufficiently small to be unlikely to cause damage but it will inevitably drop from the tree. The leader had a history of shedding branches.

25. Ms Watt submitted that the pool was frequently occupied for sustained periods during warm weather and generally by children who may have limited awareness of their surroundings. In this context, I am satisfied that the tree presents a moderate risk of injury to people, and that s 10(2)(b) of the Trees Act is consequently engaged.

26. As s 10 is satisfied, the Court must consider relevant matters in s 12 of the Trees Act in order to determine, what, if any, orders should be made.

Discretionary matters – s 12

27. The tree was one of a row of River Red Gums situated on the respondents’ land, close to the common boundary (s 12(a)).

28. Mitigation of risk from branches falling into the applicant’s pool may be achieved by pruning. There is, however, no appropriate junction to which the leader’s length may be reduced without lopping the end, contrary to AS4373-2007 Pruning of amenity trees, and arboricultural best practice. Consequently, the leader requires removal down to the co-dominant junction. Though such extensive pruning is not generally recommended, with the benefit of good growing conditions over recent years, the tree is unlikely to be excessively stressed (s 12(b2)).

29. The tree, as a member of the row, provides protection from the sun and wind, and privacy. It contributes to the natural landscape and scenic value of the land on which it is situated and provides intrinsic value to public amenity as it is visible from neighbouring properties (ss 12(b3), (e) and (f)).

30. The tree provides food and habitat for fauna. Being endemic to the area, it would make significant ecosystem and biodiversity contributions (ss 12(d)).

31. Subsections 12(i) and 12(j), cover anything, other than tree, that has contributed, or is contributing to any such damage or likelihood of damage, or likelihood of injury, including any act or omission by the applicant and the impact of any trees owned by the applicant. In Black v Johnson (No 2) [2007] NSWLEC 513 (“Black”), the Court has published a tree dispute principle to address circumstances such as the applicant’s installation of the pool under the tree’s arching leader.

32. In summary, this tree dispute principle says 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.

Conclusions

33. I have examined the tree and the site and have reached the following conclusions.

34. From the applicant’s photographs and my site assessment, I am satisfied that branches from the tree caused damage to the shed and that s 10(2)(a) of the Trees Act was thus engaged. I was not satisfied, however, that further damage was likely in the near future.

35. Unlike property damage, consideration of which is restricted to the applicant’s land, s 10(2)(b) of the Trees Act imposes no restriction on the location where a tree may be likely to cause injury, nor time constraint on such likelihood, other than ‘the foreseeable future’. Consequently, likelihood of injury to a person may assessed with respect to a larger area of occupation and a more flexible time period than for damage to property.

36. Considering the criteria in McPherson, at [10], small dead and epicormic branches arising from the tree’s arching leader are likely to fall in the pool. Ms Watts claimed that branches fell regularly. As the pool is frequently occupied by children, and branches from the leader have damaged the shed, there is sufficient risk of injury to persons to justify intervention with the branch.

37. Though the applicant proposed tree removal, it is neither required nor appropriate. The applicant’s damage and injury issues may be resolved by pruning of the tree’s arching leader. The tree provides benefits for the respondents, the community, and the environment that would be lost through tree removal.

38. Further, as trees develop or fail to develop strength over time relative to protection received from their neighbours, removal of a tree or trees from a row or group increases the propensity of damage to neighbouring trees which are newly exposed to altered wind patterns.

39. While respondents generally pay for works that arise from Court Orders, based on the tree dispute principle in Black, because the tree was there first, long before the applicant’s pool, Ms Watt shall pay 25% of the cost of pruning works.

Orders

40. The Court orders that:

1. Within 14 days of the date of these Orders, the respondents shall pay the applicant $280.00 by Electronic Fund Transfer (E.F.T) as compensation for pool shed damage.

2. The tree has two pairs of trunks, which meet at co-dominant junctions. The respondents, at their expense, shall employ Australian Qualification Framework (AQF) level 3 arborists with all appropriate insurances (the arborists), to prune the trunk which, of the four, is leaning and growing over the applicant’s pool, down to the highest major co-dominant stem junction. The works shall be completed within 90 days.

3. Within 7 days of completion of the works in Order (2), the respondents shall email the applicant a paid itemised invoice for the works. Within 7 days of receipt of the paid itemised invoice, the applicant shall transfer the sum of 25% of the total of the paid invoice to the respondents by E.F.T.

4. All pruning works shall comply with AS4373:2007 - Pruning of amenity trees and the Safework Australia, Guide to managing the risks of tree trimming and removal works, 2016.

5. The applicant shall allow all reasonable access for the arborists to complete the works upon receipt of 72 hours’ notice by email.

6. All works shall be completed during reasonable daytime working hours.

J Douglas

Acting Commissioner of the Court

**********

Decision last updated: 15 March 2024