Land and Environment Court New South Wales Medium Neutral Citation: Donaghy v Hammond [2021] NSWLEC 1526 Hearing dates: 1 June 2021 Date of orders: 10 September 2021 Decision date: 10 September 2021 Jurisdiction: Class 2 Before: Galwey AC Decision: See orders at [27] Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – large tree overhanging dwellings – whether the tree has caused damage – whether further damage or injury is likely – orders for pruning – orders for tree management plan Legislation Cited: Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 9, 10, 12 Cases Cited: Cayley v Gervay [2021] NSWLEC 1254 The Owners – Strata Plan 3346 v The Owners – Strata Plan 10848 [2021] NSWLEC 1504 Yang v Scerri [2007] NSWLEC 592 Texts Cited: AS 4373-2007 'Pruning of amenity trees' Safe Work Australia 2016 'Guide to managing risks of tree trimming and removal work' Sutherland Shire Development Control Plan 2015, Chapter 39 Category: Principal judgment Parties: Paul Donaghy (Applicant) Michael Hammond (Respondent) Representation: P Donaghy (Litigant in Person) (Applicant) S Cominos (Counsel) (Respondent) Solicitors: Solari & Stock (Respondent) File Number(s): 2021/32084 Publication restriction: No Judgment Background to the application 1. Paul Donaghy ('the applicant') 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 removal of a large neighbouring Sydney Blue Gum (Eucalyptus saligna) ('the tree') that overhangs his property. The tree is on an adjoining Gymea Bay property owned by Michael Hammond ('the respondent'). The hearing 1. The matter was heard onsite, allowing observations of the tree and both properties. The applicant was self-represented; Mr Cominos, of Counsel, represented the respondent. I bring my own arboricultural expertise to this decision. Framework for this decision 1. Before making orders, the Court must be satisfied that the applicant has made reasonable effort to reach agreement with the tree owner (s 10(1)(a) of the Trees Act). 2. Under Pt 2 of the Trees Act, the Court can only make orders if satisfied that the tree concerned 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 (s 10(2) of the Trees Act). The Court must also consider a range of matters at s 12 of the Trees Act before making orders such as those set out at s 9. I rely on my own arboricultural expertise and experience in making this decision. The applicant made reasonable effort to reach agreement 1. Mr Donaghy has spoken with Mr Hammond about the tree. Mr Donaghy has received arboricultural advice. He wants an outcome to which Mr Hammond does not agree. Mr Hammond did not dispute that Mr Donaghy has tried to persuade him to remove the tree. I am satisfied that Mr Donaghy's efforts to reach some agreement have been reasonable. The tree 1. The Sydney Blue Gum on Mr Hammond's property is a large mature example of this native species. It grows in Mr Hammond's back yard, close to his southern side boundary, being the common boundary shared with Mr Donaghy. Its broad crown extends above his back yard and the rear section of his dwelling, over parts of Mr Donaghy's back yard, pool and dwelling, and above another property to the west. It has been pruned in the past, but some branches are overextended and some deadwood is retained in its crown. No expert evidence was adduced regarding the tree. Has the tree caused damage? 1. Mr Donaghy alleged the tree has caused damage to both his property and to the respondent's property. Branches have fallen, damaging Mr Donaghy's decking roof, tiles and sarking. Mr Cominos conceded that photos show damage to three roof tiles, but there is no evidence of other elements of damage, only the applicant's submissions. Mr Cominos did not dispute that branches from the tree damaged the broken roof tiles, and I find that has occurred. The tree overhangs Mr Donaghy's dwelling. There is no other tree overhanging his dwelling; and I saw no other likely cause of damage. Although this damage may be relatively minor, it meets the threshold at s 10(2)(a) of the Trees Act, engaging the Court's jurisdiction to make orders. 2. Mr Donaghy alleged that roots are damaging his property. Roots that have spread across the boundary are uplifting his rear deck, damaging pool tiles and a pathway, he said. Mr Cominos argued that Mr Donaghy again had only his submissions upon which to rely, having provided no evidence to demonstrate that his deck is out of alignment or that any damage is caused by tree roots. Mr Cominos suggested that any damage seems minor. Mr Cominos took the Court to Cayley v Gervay [2021] NSWLEC 1254, where at [41], [42] Acting Commissioner Douglas discussed the need to find a causal link between the tree and the alleged damage, rather than just relying on a tree's proximity to property. "41 In Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 at [62], Craig J said "something more than a theoretical possibility is required in order to engage the power under the Trees (Disputes between Neighbours) Act to make an order to remedy, restrain or prevent damage". 42 In Stevens v Russell [2016] NSWLEC 1233 at [40], Commissioner Fakes notes that: "it is a common assumption that the mere presence or proximity of a tree is sufficient to conclude that the tree is the cause of the damage. It is not. It is necessary to find evidence to substantiate the assumption that the tree has caused the damage. In the case of alleged root damage, some excavation is usually required."" 1. Observations at the onsite hearing did not reveal any connection between roots and damage. Without any investigations or reports, the Court cannot be satisfied that roots of Mr Hammond's tree have damaged Mr Donaghy's property. Is the tree likely to cause damage or injury? 1. Mr Donaghy emphasised that safety is his main concern. Mr Hammond engaged an arborist in March 2021 to prune the tree after gaining consent from Sutherland Shire Council ('Council') for those works. Mr Cominos pointed out pruning cuts where three branches were removed. Considering the overall size of the tree, the recent pruning works were relatively minor. Although there is now no significant crown overhang above the applicant's dwelling, some overextended limbs remain in the crown – long branches that extend far from the tree's centre with much of their weight toward their ends. If they fail, the damage would be significant. Some deadwood also remains in the crown, despite recent pruning. When it falls, it is likely to cause damage, and might cause injury. 2. For the purposes of the Trees Act, and since the Court's principle established in Yang v Scerri [2007] NSWLEC 592, I consider the near future to be a period of approximately 12 months. I am satisfied that the tree is likely to damage Mr Donaghy's property in the near future. Therefore orders can be made to prevent this. 3. Mr Cominos argued that the applicant has provided no evidence, nor expert report, nor risk assessment with his application. He said the onus is on the applicant in these proceedings to demonstrate the risk. I accept this, but bringing my own expertise to this matter, my observations during the onsite hearing were sufficient to satisfy me that branches falling from the tree are likely to cause damage to Mr Donaghy's property. Regarding damage to the pool and deck caused by roots, I was unable to determine if such damage is likely to result in the near future. Further investigations would be required to demonstrate that – investigations that Mr Donaghy has not undertaken. Matters at s 12 1. I have considered the matters at s 12 of the Trees Act. Relevant matters are discussed below. The tree's location 1. Mr Hammond's tree stands close to the common boundary he shares with Mr Donaghy. The tree overhangs Mr Donaghy's property. Large branch failures, which are possible in the near future, could significantly damage both properties. Mr Donaghy submitted that the species is unsuitable for planting close to dwellings, citing general literature in this regard. Council consent 1. Mr Donaghy referred to a conversation he had with a Council officer who told him that a permit would not be required to remove the tree due to its proximity to a dwelling. However, according to Chapter 39 (at clause 4.10.2) of the Sutherland Shire Development Control Plan 2015, Council consent would be required and would be granted in certain conditions. "4.10.2 Assessment Principles This clause must be read in conjunction with the other assessment criteria specified in this Section. Considerations of public safety, bush fire risk, hardship, Greenweb, and scenic and visual quality will take priority over considerations of the proximity of the tree to buildings. Council will permit removal of a tree located within three metres of a dwelling or swimming pool. For the purpose of this subclause the distance is to be measured from the outer face of the external enclosing wall of the dwelling or from the edge of any concrete slab forming part of the foundations of the dwelling to the trunk of the tree at its closest point. The distance is to be measured at a height 500mm above ground level. This clause does not apply to trees within three metres of decks, garages, out buildings, fences or ancillary structures. Note to Subclause 2: An application must still be submitted to Council and approved before a tree which is located within 3 metres of a building can be removed. In bushfire prone zones RFS regulations apply (10 metres). Council will permit the removal of branches that overhang a dwelling or swimming pool to reduce potential risk to life and property." The tree's benefits 1. The Sydney Blue Gum is an indigenous tree, part of the local ecological community. It can be seen from public areas, so contributes to public amenity. It delivers shading, cooling and other ecosystem services. It provides habitat for birds and other fauna. Its removal would have a significant impact on the landscape character of Mr Hammond's property and the neighbourhood. Impacts of pruning 1. The tree would tolerate further pruning, if done according to AS4373 - 2007 Pruning of amenity trees. By potentially preventing the failure of large branches, such pruning might allow it to remain in the landscape longer than it might otherwise. 2. Mr Donaghy pointed out that many branches in the tree's crown are of epicormic origin following poor pruning in the past, and perhaps also as a result of the tree being stressed. Mr Donaghy rightly suggested that some of these branches might be weakly attached. They also indicate the tree's ability to respond to pruning. Actions or omissions of the parties 1. Consideration of the actions or omissions of each party can be relevant to determining whether a party should be ordered to carry out works to remedy or prevent damage (The Owners – Strata Plan 3346 v The Owners – Strata Plan 10848 [2021] NSWLEC 1504 at [18]–[24]). It can assist the Court in allocating or apportioning the costs of any work. 2. The tree has been pruned occasionally before this. Mr Hammond suggested it has been pruned seven times since 1989. The recent pruning only followed agitation from Mr Donaghy. The tree is large, close to two dwellings and could potentially affect others. 3. In my mind, the tree's size and proximity to dwellings give rise to a reasonable expectation that its owner takes action to manage its potential risk. While the tree has occasionally been pruned, Mr Hammond has not obtained any written advice or plan on managing the tree from a suitably qualified person. It is not clear from the available evidence whether the arborist who recently pruned the tree had carried out all risk mitigation pruning they thought was necessary, or whether they were simply carrying out pruning that Mr Hammond specifically requested. 4. Mr Donaghy's actions have been reasonable. He pointed out that he had not asked for compensation, he paid for the 2018 pruning, and he has assisted Mr Hammond financially. He has not repaired the pathway, tiles and deck at the back of his dwelling because he expects that further damage is likely. Balance of s 12 matters 1. On balance, I find that the tree's value warrants the cost of further input to maintain it in a reasonable manner. Options appear to be available for crown-reduction pruning to mitigate the risk of damage from falling branches. Orders are required to prevent damage 1. Despite recent pruning, there remains a reasonable risk that branches will fall and cause damage to the applicant's property. Further pruning can minimise this risk. 2. It would also be appropriate for the tree's owner to obtain a management plan for the tree from a suitably qualified (minimum AQF level 5) arborist, outlining actions to take over the next 5–10 years to manage the tree. The Court will not order its implementation, but a management plan should provide guidance for Mr Hammond's future management of the tree. He has demonstrated that he is willing to prune the tree, but perhaps has lacked the level of professional assessment and advice that this large tree warrants. 3. The respondent may engage the one arborist to carry out both orders (2) and (6) below if that arborist is suitably qualified (minimum AQF level 5). Should the respondent decide to remove the tree before carrying out the actions ordered below within their specified timeframes, the orders are redundant. Orders 1. Based on the foregoing, the Court orders: 1. The application to remove the tree is refused. 2. Within 30 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: 1. reduce the long western limb (indicated in photo A, Annexure A) to a suitable lateral branch; 2. reduce the long eastern limb to a suitable lateral branch (as indicated in photo B, Annexure A); 3. remove deadwood greater than 30 mm diameter from the tree's crown; 4. remove any branches from the tree's crown identified as hazardous while carrying out the other pruning works; and 5. take photographs of any major defects in the tree's crown and provide those photographs to the respondent. 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 2 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. Within 90 days of the date of these orders the respondent is to engage and pay for a suitably qualified consulting arborist (minimum AQF level 5) to assess and provide a written report that includes a management plan for the tree. The respondent is to provide the arborist with any photographs of crown defects taken by the arborist who completed the works in order (2). The arborist is to visually assess the tree from within both the applicant's property and the respondent's property. The management plan must include recommendations for managing the tree for the next 5–10 years, including the frequency of any pruning works, inspections or other recommendations. 5. The respondent is to give the applicant two days' notice of the arborist's inspection in order (6). 6. The applicant is to allow access to their property for the arborist in order (6) to inspect the tree. 7. Within seven days of receiving the tree management plan, the respondent is to provide the applicant with a copy of the management plan. ………………………………. D Galwey Acting Commissioner of the Court Annexure A (896419, pdf) ********** 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: 10 September 2021