Land and Environment Court New South Wales Medium Neutral Citation: Touma v Gerholt [2021] NSWLEC 1320 Hearing dates: 10 March 2021 Date of orders: 7 June 2021 Decision date: 07 June 2021 Jurisdiction: Class 2 Before: Galwey AC Decision: The Court orders that: (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 respondent is to engage and pay for a suitably qualified arborist (minimum AQF level 3), with all appropriate insurances, to carry out the following pruning works: (a) remove deadwood greater than 40 mm diameter from the tree's crown; (b) remove or reduce overextended branches in the tree's crown above the applicant's property, removing no more than 15% live crown mass; and (c) remove any branches from the tree's crown identified as hazardous while carrying out the other pruning works. (4) The works ordered above must be done in accordance with AS 4373 'Pruning of amenity trees' and the 2016 Safe Work Australia 'Guide to managing risks of tree trimming and removal work'. (5) The respondent is to give the applicant 7 days' notice of the works. (6) The applicant is to allow all access necessary for the works to be completed during reasonable hours of the day. (7) The exhibits are returned, except for Exhibit A. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – Part 2 application – damage to property – risk of damage and injury – building near existing tree – tree removal would be disproportionate to the risk – orders for pruning Legislation Cited: Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 6(3), 7, 10, 12 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Black v Johnson (No 2) [2007] NSWLEC 513 Texts Cited: AS 4373–2007 'Pruning of amenity trees' Safe Work Australia, 'Guide to managing risks of tree trimming and removal work', (2016) Category: Principal judgment Parties: Jeanette Touma (Applicant) Laurice Gerholt (Respondent) Representation: J Touma (Agent) (Applicant) B Gerholt (Agent) (Respondent) File Number(s): 2020/348165 Publication restriction: No Judgment A tree grows in Rockdale 1. COMMISSIONER: A large Eucalyptus saligna (Sydney Blue Gum) ('the tree') grows in the rear garden of the Rockdale property belonging to Laurice Gerholt ('the respondent'). At its base, the tree is close to the rear corner in the southeast of Ms Gerholt's property. The tree's broad crown spreads in all directions, over Ms Gerholt's garden and above three neighbouring properties. Almost one entire quadrant of the tree's crown extends above the property to her south, owned by Jeanette Touma ('the applicant'). 2. This tall mature tree is a locally indigenous species. Its stem has a diameter of approximately one metre at chest height. Its full, healthy crown can be seen from surrounding streets. The application 1. Ms Touma 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; compensation for damage caused by the tree; and recovery of the cost of making an application to council. Framework for this decision 1. The Court may only make orders under Pt 2 of the Trees Act if satisfied that the applicant has made a reasonable effort to reach agreement with the tree's owner (s 10(1)(a) of the Trees Act). 2. Then, at s 10(2) of the Trees Act, the Court may only make orders if satisfied that the subject 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 any person. Then, before making any orders, the Court must consider the matters at s 12 of the Trees Act. If orders are made, they might be those sought by the applicant. Alternatively, at s 9(1) of the Trees Act, "the Court may make such orders as it thinks fit to remedy, restrain or prevent damage to property, or to prevent injury to any person, as a consequence of the tree the subject of the application concerned." Onsite hearing 1. The hearing took place onsite, allowing me to observe the tree, Ms Touma's property, Ms Gerholt's property and the surrounding environment. I rely on my own expertise and experience in arboriculture in making this decision. Ms Touma's daughter Jess Touma acted as her agent at the hearing, while Ms Gerholt's son Ben Gerholt acted as her agent. At the hearing's outset, leave was granted for the application to be amended, correcting Ms Gerholt's name. History 1. The tree has been here for many years, probably longer than most residents in the neighbourhood. Ms Gerholt had the tree pruned in 2017, with Bayside Council's consent. Ms Touma has owned her property since 2018. Beginning soon after she moved here, she has discussed the tree with Ms Gerholt several times, wanting it removed, but has seen nothing done about it. 2. A granny flat was constructed at the back of Ms Touma's property in or around 2016, before she lived here. It is close to her back fence, which is on the common boundary shared by the parties, with only a narrow access way between the building and the fence. It appears likely that some excavation was required for construction, and I am surprised that this was done so close to a significant tree. An air-conditioning unit was attached to the flat's external wall, close to the tree. A pool was constructed south of the granny flat. Because the tree's crown spreads so broadly, its branches extend beyond the flat and over the pool. 3. In May 2020 Ms Gerholt requested a quote for pruning the tree from the arborist who carried out the 2017 pruning works. She received no response, so contacted another arborist in November 2020, and received a quote dated 1 December 2020. She then received a copy of Ms Touma's application, so put the pruning works on hold awaiting the outcome of this application. 4. Ms Touma obtained council consent to prune the tree, but has not undertaken any pruning. A branch fell onto and damaged her air-conditioning unit, costing her an insurance excess of $1,000. Another branch fell onto her clothesline. She submitted that several other branches have fallen. Leaves, twigs and other debris fall from the tree onto the roof of her granny flat, into her pool and elsewhere. She submitted that this requires unreasonable amounts of maintenance. Findings The tree 1. The tree is in good condition, flourishing really, despite the changes that have occurred around it in recent years. Branches that have dropped appear mostly to be dead at the time they fell. Such branch failures are fairly typical for a large gum tree in an urban environment, but can be minimised by regular pruning. It is now four years since this tree was pruned, and deadwood can be seen throughout its crown, some of it large enough to cause damage, or serious injury should it fall and hit someone. 2. Other than this, and limited to ground-based observations from within both properties, I saw no structural defects in the tree that would suggest large living branches are likely to fail in the foreseeable future. Likewise, the base of the stem and its buttress roots appeared undamaged; there were no signs that the tree's rootplate might become unstable. 3. Whether or not the tree was originally planted, it might now be reasonably regarded as a natural feature of the landscape. The character of Ms Gerholt's garden encompasses the tree. The character of Ms Touma's garden is in stark contrast to this – manicured lawn, no trees, a swimming pool. It is not the Court's role to judge landscape character, and property owners may develop their land as they like within the relevant planning controls. However it might be unreasonable to expect that the surrounding environment be adjusted to accommodate one's own landscape. If Ms Touma finds the tree causes nuisance, which I am sure she does, it is not a nuisance that Ms Gerholt created or forced upon her. 4. Ms Touma finds the constant build-up of leaves, twigs and other debris from the tree a nuisance requiring frequent cleaning of her granny flat roof and gutters and the area behind the granny flat. Such litter from the tree does not usually cause damage when it falls, but if left to sit, it might degrade or discolour surfaces. While this might be considered 'damage' for the purposes of s 10(2)(a) of the Trees Act, I do not see this as a reason to make any orders. In similar matters, the Court has consistently applied the following principle established in Barker v Kyriakides [2007] NSWLEC 292 at [20], and I see no reason here to deviate from that principle: "For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis. The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree." 1. The tree's presence, and the likely maintenance requirements, would have been apparent to Ms Touma when she purchased her property. Compensation 1. The jurisdiction of the Trees Act is limited to damage caused by the tree, in the past, present or near future, or the risk of injury. The tree has caused damage to Ms Touma's property when a branch fell on her air-conditioning unit. This is not disputed. The damage caused does not determine that the tree must be removed. The appropriate action for the tree depends on whether further damage is likely, and if so, what is required to prevent it. 2. The damage caused to Ms Touma's air-conditioning unit enlivens the jurisdiction at s 10(2)(a) of the Trees Act, so that the Court could order compensation for the damage (s 9(2)(i)). Before making such an order, the Court must consider the matters at s 12, including at s 12(h)(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". 3. Although the applicant did not construct the granny flat beneath the tree, the developer of her property did locate it there. Her property is a large residential property that would allow some discretion in where structures might be located. If a building has been constructed close to a pre-existing tree, especially where other options might have been available, this would be anything other than the tree that has contributed to such damage (from s 12(h)(i)). In Black v Johnson (No 2) [2007] NSWLEC 513, the Court considered this issue and established the following principle: "Tree Disputes Principle The existence of a tree prior to the construction of a structure which has subsequently been damaged by the tree is not a matter likely to be taken into consideration on the question of whether or not some order should be made for interference with or removal of that tree or other remedial work. On that question, the seriousness of the damage and any attendant risks are the primary matters for consideration. If interference with or removal of the tree or other work is warranted because of the extent of the damage the tree has caused or risks now posed by the damage, the fact that the tree was already growing in the vicinity at the time the structure was built is a matter which may be relevant and appropriate to take into account on the question of who should undertake any work and/or apportionment of the cost of such work. However, it will also be relevant to consider whether or not the tree was self-sown or was planted. If it was planted, consideration will need to be given to the appropriateness or otherwise of: * the type of tree planted; and * the suitability of the location in which it has been planted. Equally, it will be relevant to consider whether the choice of location for the structure was unnecessary or avoidable or, on the other hand, if it would have been an unreasonable constraint on the development potential of the site had the existence of the tree limited that potential." 1. The tree, a significant natural feature of the landscape, was here when Ms Touma's granny flat was constructed. Benefits of the tree extend beyond Ms Gerholt's property, yet the cost of maintaining the tree generally falls to Ms Gerholt. The cost of repairing or replacing Ms Touma's air-conditioning unit was apparently covered by her insurer, other than an excess of $1,000. The terms of Ms Touma's insurance, and excess amounts, are matters for her, but there is no reason here to pass that cost back to Ms Gerholt. I will therefore not make any order for compensation. 2. Ms Touma also sought recovery of the cost of a tree permit application she made to Bayside Council. Ms Touma chose to make that application, which thus far has provided no material benefit to either party. There will be no order to reimburse her for that cost. Risk of damage and injury 1. Having dealt with damage already caused by the tree, the remaining issue concerns the risk of the tree causing damage to Ms Touma's property in the near future, or injury to any person. Ms Touma's concerns regarding risk are not unfounded, for she has found branches on the roof of her flat and on her clothesline, but the action must be proportionate to the risk. The tree contributes significantly to the local environment, to public amenity and to the landscape value of Ms Gerholt's property and surrounding properties. It provides shading, cooling and habitat; it has removed several tonnes of carbon from the atmosphere. I found no reason to remove the tree, as the risk of branch failure can be sufficiently minimised by removing dead and other hazardous branches from the tree's crown. 2. In a 2018 letter to Ms Gerholt, Bayside Council's tree management officer informed Ms Gerholt that she had approval to remove deadwood from the tree and for reduction pruning over Ms Touma's property of up to 12% of the canopy. The nature of that consent remains appropriate. 3. Ms Gerholt has demonstrated her intention to maintain the tree by pruning it every three years, so I see no need to make orders for repeated pruning in future. Due to s 6(3) of the Trees Act, orders made below do not require council consent. Ms Gerholt would be responsible for obtaining any council consent required for subsequent pruning, such as the future maintenance she intends to carry out. Orders 1. Based on the foregoing reasons, the Court orders that: 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 respondent is to engage and pay for a suitably qualified arborist (minimum AQF level 3), with all appropriate insurances, to carry out the following pruning works: 1. remove deadwood greater than 40 mm diameter from the tree's crown; 2. remove or reduce overextended branches in the tree's crown above the applicant's property, removing no more than 15% live crown mass; and 3. remove any branches from the tree's crown identified as hazardous while carrying out the other pruning works. 1. The works ordered above must be done in accordance with AS 4373 Pruning of amenity trees and the 2016 Safe Work Australia Guide to managing risks of tree trimming and removal work. 2. The respondent is to give the applicant 7 days' notice of the works. 3. The applicant is to allow all access necessary for the works to be completed during reasonable hours of the day. 4. The exhibits are returned, except for Exhibit A. ………………………………. D Galwey Acting Commissioner of the Court ********** Amendments 01 September 2021 - Amended jurisdiction to Class 2. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 September 2021