Land and Environment Court New South Wales Medium Neutral Citation: Liu v Karcher [2022] NSWLEC 1563 Hearing dates: 23 June 2022 Date of orders: 14 October 2022 Decision date: 14 October 2022 Jurisdiction: Class 1 Before: Douglas AC Decision: The Court Orders that: (1) Within 14 days of the date of these orders, the respondent shall pay the applicant $2369.00, by E.F.T or bank cheque. (2) Within 35 days of the date of these orders, the respondent shall, at his expense, remove Sydney Blue Gum (T1) from his rear yard to near ground level (the works). Regrowth shall be prevented or remedied either by stump grinding or by persistent regrowth removal from the trunk base. The roots shall not be poisoned. (3) The works in Order 2 shall be completed by AQF level 3 qualified arborists, with all appropriate insurances (the arborists), and in accordance with Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work 2016. (4) Should the arborists require access to the applicant's property to undertake the works in Order 2, the applicant shall provide such access upon receipt of at least 48 hours written notice, which details the date and approximate times that works are to commence. (5) All works shall be undertaken during reasonable working hours. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – damage incurred as a result of falling branches -apprehension of further damage, and injury Legislation Cited: Trees (Disputes between Neighbours) Act 2006 s7, s8, s9, s10 s12 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: Parramatta Development Control Plan 2011 Safe Work Australia 'Guide to Managing Risks of Tree Trimming and Removal Work' (July 2016) Category: Principal judgment Parties: Ya Liu (Applicant) Eugene Karcher (Respondent) Representation: Y Liu (Self-represented) (Applicant) E Karcher (Self-represented) (Respondent) File Number(s): 2022/89867 Publication restriction: No Judgment 1. COMMISSIONER: This is an application by Ms Ya Liu, pursuant to s 7 of Pt 2 of the Trees (Disputes between Neighbours) Act 2006 (the Trees Act), with respect to three trees (T1 – T3) located in her adjacent neighbour's property 2. Ms Liu (the applicant), and Mr Karcher (the respondent), share rear boundaries between their properties in Eastwood. The applicant built and occupied her residence in 2014, while Mr Karcher has lived at his property for over 50 years. The onsite hearing 1. Both parties attended the hearing, with Mr Karcher accompanied by two sons. The trees are located on the respondent's property at a higher elevation than the applicant's land, and this allowed for an initial simultaneous inspection of the overall site. Both T1 and damage were subsequently inspected from Ms Liu's property. 2. T1, a Eucalyptus saligna (Sydney Blue Gum), is the applicant's primary concern. It is mature, stands approximately 20 metres tall, and is located on a distinct downward slope close to the shared boundary. Its trunk is leaning towards the applicant's land, and its canopy largely overhangs it. 3. T2 is a small Grevillea robusta (Silky Oak) in fair to poor condition, with a moderate level of dieback in the upper canopy. While this species is prone to Phytophthora root rot which is associated with such dieback, and its growth has likely been suppressed under T1's canopy as a result of insufficient exposure to light, it also exhibited foliage distortion normally indicative of herbicide exposure. 4. In her application, Ms Liu had noted that T2 may fall onto T1, causing T1 to fall onto her property, but I concur with Mr Karcher at [21] of his Statutory Declaration of 11 June 2022 , that due to its size and location distant from the common boundary, T2 is not likely to cause near future damage, or present a genuine risk of injury to the applicant. Therefore, T2 is set aside and requires no further consideration. 5. T3 was a dead Eucalyptus sp (Gum tree), which had recently been removed to near ground level. The applicant's case 1. Ms Liu notes damage resulting from a series of branch failures from T1. She claims that about 5.5m of the common boundary fence was damaged in February 2017, and that both parties shared the $500 repair cost. Her text messages to the respondent dated 11 February 2018 and 18 April 2018 advise of ongoing branch shedding, and on 10 February 2020, Ms Liu sent text and photographs (photos) of significant damage to her clothesline and palm trees as a consequence of another fallen branch. 2. Late at night on 5 March 2022, a very large limb with multiple branches was shed from T1. It damaged a large cubby house and a tree and appeared to spread across much of the applicant's rear yard. The applicant's photos showed that the various branches appeared to be about 10m long with the diameter of the main stem around 300mm. 3. After this 2022 event, for the first time, Mr Karcher advised that he would consult an arborist to inspect the tree, but Ms Liu was confused and dissatisfied with his various responses to text messages. Prior to this event, Mr Karcher had repeatedly advised the respondent that responsibility for damage from his trees overhanging Ms Liu's property rests with her. He claims to have consistently received this advice from Council. 4. Ms Liu proposed the following (summarised) orders: 1. To remove the risky tree's (T1) trunk, near the boundary. She claims it may fall down at any time to injure people and damage the property. 2. To reimburse the payments which she paid and to compensate for the damages caused by the risky tree. 3. To maintain the other trees in the respondent's yard and to avoid the trees falling down, then damaging property and injuring people. The respondents' case 1. In his Statutory Declaration, Mr Karcher notes that his property is located within the Epping/Eastwood Heritage Conservation Area, that various large Blue Gums in the immediate vicinity, and on his land (including T1) were mature upon his initial occupation more than 50 years ago, and provide "amenity to residents, and a habitat for native wildlife". He greatly values his trees. 2. He agrees that a branch from T1 fell during a storm in or around February 2017, damaging the common boundary fence. He also does not dispute any of the other branch shedding events which Ms Liu outlined, but claims that Ms Liu could have had T1 pruned to mitigate risk, as provided for by Section 5.4.2.2 of Parramatta Development Control Plan 2011 (DCP). 3. At [27] of his Statutory Declaration, Mr Karcher says; "The Applicant has had ample notice and opportunity to remove any risk posed by overhanging branches, and to prevent the damage which has occurred. If she had pruned the branches as I had suggested, none of the claimed damage would have occurred. In those circumstances, each of her claims should be rejected." Jurisdictional requirements 1. With respect to s 7 of the Trees Act, 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. 2. Ms Liu satisfied the requirements of s 8(1) of the Trees Act, to provide at least 21 days notice of the lodging of the application to the respondent, and to Parramatta City Council (Council). 3. 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. 1. If the jurisdictional tests at s 10 of the Trees Act are satisfied, the Court can make orders such as those at s 9 of the Trees Act, to remedy, restrain or prevent damage to property, or to prevent injury to a person, as a consequence of the tree. Before determining the nature of any orders, the Court must consider a range of matters set out at s 12 of the Trees Act. 2. The record of correspondence in the application and evidence of attempts by Ms Liu to arrange mediation through a Community Justice Centre (CJC) engages s 10(1)(a) of the Trees Act, as the applicant has made a reasonable effort to reach agreement with the respondent. Ms Liu was aggrieved that Mr Karcher would not agree to mediate through the CJC, but his participation is voluntary, there is no requirement for him to attend. 3. Therefore, the principal jurisdictional tests in this matter are at s 10(2) of the Trees Act and relate only to T1. Damage and risk of injury related to T1 1. Under s 7 of the Trees Act, an owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land. T1 has caused damage to the applicant's property on three occasions since 2017, and thus s 10(2)(a) of the Trees Act is satisfied. 2. When branches overhang a property boundary, but do not cause damage or present a genuine risk of injury, no remedy is available under the Trees Act. However, where damage or genuine injury risk does result as a consequence of the tree, the jurisdiction of the Trees Act is engaged, and orders can be contemplated. 3. Foreseeability is a primary consideration. The trunk and branches of T1 display many locations where branches have shed from the tree or been pruned in the past, including old wounds. However, given that Ms Liu's first report of damage from a branch relates to the common boundary fence in 2017, it is reasonable to assume that this was the first incident of major damage following her occupation in 2014. 4. In Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (Robson), a key appeal case by Preston CJ, Mr Leischke was found not to be liable for compensation for damage to the applicant's house caused by a tree that uprooted on his property, because there was no relevant evidence available on the tree or the site to suggest that such an outcome was foreseeable. 5. As no branch failures prior to 2017 were introduced by either party, as in Robson, it is reasonable for the initial February 2017 damage to be treated as unpredictable (or 'an Act of God'), and for the cost of repair of the consequent fence damage to be shared equally between the parties, as occurred here. In this instance, had damage impacted only on Ms Liu's property, she would have been financially responsible for such damage, whether personally or through her property insurance. 6. This appears consistent with the advice Mr Karcher noted to have consistently received from Council. However, once this branch caused damage in February 2017, this altered the duty of care imposed on Mr Karcher. After this branch failed, further failure became foreseeable, and under the Trees Act, Mr Karcher is normally responsible for subsequent damage or injury. 7. Assessment of tree risk initially considers the type and occupancy rate of targets under and around the tree. The likelihood of tree parts to fail, their size, and the likely distance of fall are also considered. Risk management programs normally include re-assessment of trees after large branches are shed, in storms or otherwise. 8. In light of these tree risk components, T1 is located close to the common boundary. Its large, tall trunk is distinctly leaning towards Ms Liu's back yard, and some of its long, large branches overhang her property. Should such branches break and fall, based on the fence damage incurred in February 2017, it had become obvious that further damage to Ms Liu's property, or injury to her family, was at least, possible. 9. To check whether T1 was structurally sound and safe, a prudent tree owner would have had the tree assessed for risk, preferably by a suitably qualified and experienced arborist, and if required, taken measures to mitigate risk. 10. Instead, even after Ms Liu informed him by text about ongoing branch failures in February and April 2018, and again when a branch failed and crushed her clothesline on 10 February 2020, Mr Karcher texted Ms Liu that "Helen, I have told you many times that if a tree is overhanging your property and causes damage to your property it is your [responsibility]". 11. On 19 March 2022, two weeks after the third failure comprising a large branching limb that damaged Ms Liu's cubby, tree and lawn, Mr Karcher texted; "Hi Helen I have not sent the Application to the Council because I wanted first an independent assessment of the tree by a qualified arborist. At the moment it's only YOU who claims that the tree is dangerous. The arborist was supposed to come today but he cancelled because of the rain. As to the branches in your yard: I have told you verbally and in writing, that overhanging branches are your responsibility. I suggested to you to apply to the Council to have these branches removed but you never did. Had you done so you could have prevented the present situation. The cost for removal (of the branches) therefore has to be born either by your insurance or by yourself." 1. In an email to Ms Liu dated 13 April 2022, Mr Karcher notes advice received on 24 March 2022 from Elizabeth Hannon, a Council Tree Management Officer, that T1 "will not fail at the base", and he added that, "we had our own arborist inspect the tree". He references issues from the Council's DCP "which do not warrant removal of a tree" and highlights "fears about healthy trees failing". 2. Mr Karcher finishes this email with; "Obviously we do not wish there to be any danger to you or damage to your property. However, at the moment the tree poses no threat. If that situation changes, we will reassess what needs to be done." 3. In his Statutory Declaration of 11 June 2022, Mr Karcher notes the storm conditions occurring when the largest branches fell on 5 March 2022, and at [13] says; "The branch which fell was a long, horizontal branch with significant foliage towards the end of the branch. I believe the sheer weight at the far end due to heavy rain probably caused the branch to fail." 1. At [18] Mr Karcher says: "On each occasion that branches from the Tree have fallen in the applicant's garden, it has been during a weather event such as a storm, or a period of rain or wind. This suggests the branches have fallen due to weather conditions, not because the Tree is unhealthy or a risk." 1. It is not only Ms Liu claiming the tree is dangerous. One cannot ignore the relatively frequent repeated branch failures, and the tree's location. Surrounding trees have not suffered similar branch shedding, it is unusual. While I concur with Ms Hannon that the tree displays no features suggestive of instability in the ground and is unlikely to fail at the base, this does not attest to similar strength and stability of branches and their points of attachment. 2. Regardless of whether branch failures occurred in rain or wind, the size and height of the branches over Ms Liu's property made an arborist assessment of T1's risk by Mr Karcher appropriate after the initial 2017 branch failure, as further branch failures were thus foreseeable. None was undertaken. Certainly, after the second failure in 2020, an advanced risk assessment was warranted. This would normally include an aerial climbing inspection around the canopy to assess the likelihood of further failures. No tree inspection occurred. 3. In an email to the applicant on 19 March 2022, after the third branch failure, Mr Karcher said he "wanted first an independent assessment of the tree by a qualified arborist", and his email of 13 April 2022, includes "In addition, we had our own arborist inspect the tree". However, no outcome of any inspection was provided by Mr Karcher, nor whether an aerial inspection was undertaken, or if T1's structural status, and associated risk was investigated. 4. In the absence of submitting written or verbal evidence from a suitably qualified, experienced arborist, Mr Karcher provided no substantiation for saying "I believe the sheer weight at the far end due to heavy rain probably caused the branch to fail" at [35], or, "On each occasion that branches from the Tree have fallen in the applicant's garden, it has been during a weather event such as a storm, or a period of rain or wind. This suggests the branches have fallen due to weather conditions, not because the Tree is unhealthy or a risk" at [36], or, at [34], after the third branch failure, "However, at the moment the tree poses no threat". Mr Karcher is not qualified to provide such advice. 5. As previously noted, T1 exhibits many wounds where branches have shed. The applicant's photos of the branch on the ground after the major 2022 failure showed branches established many years ago from epicormic regrowth after previous poor pruning (lopping). Extensive internal wood decay was evident near pruning wounds, close to areas of branch attachment. The end-on section view photos of the main torn branch collar also appeared to display extensive white rot, which would weaken the junction, and make failure more likely. 6. This case also has a troubling context which impacts T1's risk status. In the rear yard of the property to the south-east of Mr Karcher's are two mature, very large Blue Gums exceeding 30 metres in height, and spreading across much of the yard. A third Blue Gum of similar vast proportions is located adjacent on the south-east side of Mr Karcher's yard. 7. All three trees have been poisoned relatively recently, they are bare of foliage and they appear to be dead. I could not ascertain the mode or location of poisoning but roots of trees of the same or closely related species often graft naturally, and poison may translocate from tree to tree. The proximity of the trees and absence of obvious poisoning evidence on the respondent's dead Blue Gum is suggestive of this. 8. The death of these significant trees is a major loss of amenity and ecosystem contribution for this local area that also markedly increased T1's wind exposure. T1 has established and grown throughout its life with these three vast Blue Gums protecting it from prevailing southerly and south westerly winds. As the strength of branches, trunks and roots is strongly influenced by forces of wind and gravity impacting on trees, T1's significantly increased exposure to winds from which it has previously been largely protected, as a consequence of the absence of these three poisoned trees' canopies, increases T1's vulnerability to branch breakage. 9. Ms Liu sought to introduce the poisoned Blue Gum on the south-east side of Mr Karcher's yard for assessment under Pt 2 of the Trees Act, but this tree was not nominated in Ms Liu's application to the Court, and was not considered. 10. Sydney Blue Gums are long-lived and normally have strong, sound wood and strong branch attachments. Many variables influence these factors such as genetics, age, vigour, pruning history, and extent and location of any fungal decay and/or termite activity. Further, a small proportion of many tree species display poor wood strength and/or weak branch collars and are prone to shedding branches, though this usually exhibits from an early age. 11. T1 has poor branch structure, and most of its branches are overextended relative to their diameter. Many branches show little taper, likely due to the prior protection from the large Blue Gums. The branch distribution is also very irregular, and increasingly so with each branch failure. These factors make the residual branches inherently more vulnerable to failure than 'normal' healthy branches. 12. Whether or not the tree is genetically prone to branch failure, with the arboricultural expertise I bring to the Court, and with consideration of the aforementioned branch problems, photos of wood decay, and of hazardous branch junctions, and the history of repeated branch shedding, I am satisfied that further repeated branch shedding is likely. 13. From the adduced evidence, I am also satisfied that further damage to the applicant's property is likely in the near future, where the guidance decision in Yang v Scerri [2007] NSWLEC 592 has determined that the 'near future' is a period of about 12 months from the date of the hearing. Again, s 10(2)(a) of the Trees Act is engaged. 14. To mitigate the likelihood of further damage, more branches overhanging the applicant's yard would likely require removal. With T1's increased exposure to wind, branches over the respondent's land will likely also be more prone to shedding. The tree's already reduced foliage would thus further decrease, and in response to consequent stress, the tree would likely produce poorly attached epicormic (sucker) growth. Branches that do subsequently establish from this growth would be particularly prone to shedding. Therefore, I am not satisfied that pruning T1 offers a viable solution to mitigate its propensity for branch shedding, and, given its location, its likelihood of causing damage to Ms Liu's property. As a consequence, regrettably, the only remaining viable solution is tree removal. 15. Regarding injury, the Court considers 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. (McPherson v Lake [2017] NSWLEC 1081 [at 10]). As the main target zone is towards the rear of Ms Liu's yard, from which she has discouraged her families' access, human occupancy appears infrequent, and considering the occurrence frequency of 3 major branch failures over 5 years, I am not satisfied that the tree presents a risk of injury above low, which is acceptable. 16. With s 10 of the Trees Act satisfied, in order to determine, what, if any, orders should be made, the Court must consider the matters in s 12 of the Trees Act. Discretionary matters –Section 12 * T1 is situated on the respondent's land (s 12(a)). * T1 provides some protection from the sun and wind, to Mr Karcher's natural landscape, and, being visible from neighbouring houses in Ms Liu's street, it provides intrinsic value to public amenity (s 12(b3)(e)(f)). * Being long established, T1 may have historical value, and Mr Karcher notes, at [20] of his Statutory Declaration, that "it would undermine the "Heritage" classification of the area and be contrary to the principles set out [in] section 5.4.2.2 of the DCP, to make an order requiring the removal or pruning of a healthy Blue Gum tree." While heritage is an important consideration, when a tree is found to be structurally unsound and likely to cause further damage, the mitigation of such likely damage must be prioritised. Given the circumstances informing this case, and conclusive evidence that T1, is in fact, not structurally sound, I can find no viable alternative to tree removal to mitigate the likelihood of further damage, that would not otherwise unreasonably impact on the applicant's amenity, and on her families use of their backyard. * T1 contains many cavities which provide habitat for fauna. Hence, it contributes to biodiversity and the local ecosystem (s 12(d)). * Section 12(i) considers anything, other than the tree, that has contributed, or is contributing, to any damage or likelihood of damage, including any act or omission by the applicant and the impact of any trees owned by the applicant. * In his Statutory Declaration, at [30], Mr Karcher notes that 'the tree was there first', decades before Ms Liu's dwelling, and that she "moved into the house in full awareness of the existence and location of the tree, and the risk posed by any overhanging branches. In fact, the Cubby House and Clothesline for which the applicant claims damage, were built directly underneath the tree and the branches which were there long beforehand". * In Black v Johnson (No 2) [2007] NSWLEC 513 (Black), the Court has published a tree dispute principle which says, in summary, that 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. Conclusion 1. I have examined the tree and the site and have reached the following conclusions: 1. Fallen branches from T1 have caused damage to the applicant's property on at least 3 occasions since 2017, s 10(2) of the Trees Act is thus satisfied, and this gives me jurisdiction to make orders, subject to consideration of factors in s 12 of the Trees Act. 2. Though T1 provides considerable environmental benefits, and has historical and heritage elements, I consider it likely to shed more branches and cause further damage in the future, including the near future. Based on my reasoning in the judgment, pruning does not provide a viable long term mitigation solution, unlike tree removal, which shall be ordered. 3. Though the respondent relied on advice that all damage caused to the applicant's property by T1 was the applicant's responsibility, and for her to mitigate, subsequent to the fence damage in 2017, further damage resulting from T1 was foreseeable, and under the jurisdiction of the Trees Act, responsibility for mitigation of such further damage sat with the respondent. The respondent apparently took no measures to mitigate further damage, not even an inspection of the tree by a qualified arborist to clarify his apparently unquestioned opinion that the tree was healthy and structurally sound. To the contrary, Mr Karcher maintained his unsubstantiated position, and even after the 2022 major branch failure, sent a text message to Ms Liu that "it's only YOU who claims that the tree is dangerous, and repeatedly inferred that her "fears" about T1 were irrational. 4. With reference to the tree dispute principle in Black, I may apportion the financial burden between the parties to remedy damage caused by the tree as a consequence of the tree's presence prior to the applicant's occupation. However, because the respondent omitted to take reasonable action comprising a professional tree inspection, at the least, I consider it unreasonable for the applicant to be partially financially liable for damage incurred subsequent to the initial 2017 fence damage. I also question whether the Cubby House was built directly underneath the tree and the branches, considering that it was located far from the tree, near the centre of the applicant's rear yard, and the vast size of the fallen branch in the 2022 incident resulted in most structures in the rear yard being potentially prone to damage. 5. While the applicant has claimed for returfing of her back lawn to remedy the damage caused by the very large branches of the 2022 branch shedding, I accept Mr Karcher's submission at [28] of his Statutory Declaration, that the lawn damage so caused "is not so extensive as to require re-turfing of approximately 110 square metres of lawn". Some lawn repair and topdressing is appropriate to remedy damage caused by T1, and, to reduce unnecessary interactions between the parties by requiring exchange of quotes, I shall nominate a reasonable quantum of compensation for such damage. 6. As a consequence, compensation will be ordered for $149 for replacement of the clothesline and $230 for the destroyed palm tree, both in 2020, $800 for branch removal, $640 for Cubby house repair, and $150 for the damaged tree, each from March 2022. These all appear to be reasonable claims, most of which are supported by suitable invoices or quotes. A further $400 shall be payable for lawn maintenance to repair damage from the 2022 branch shedding. However, no order shall be made for reimbursement of the $250 fence damage cost, from 2017. The total compensation payable by the respondent is therefore $2369.00. 7. At [31] of his Statutory Declaration, Mr Karcher sought a declaration from the applicant about any claims for damage she may have resolved though her home insurance. I am not aware of any such orders in previous cases under the Trees Act, and because most property owners have an "excess" payable for insurance claims for damage, and insurance premiums normally rise following claims, I do not consider this request for such a declaration from the applicant to be reasonable, and thus set this claim aside. Orders 1. The Court orders that: 1. Within 14 days of the date of these orders, the respondent shall pay the applicant $2369.00, by E.F.T or bank cheque. 2. Within 35 days of the date of these orders, the respondent shall, at his expense, remove Sydney Blue Gum (T1) from his rear yard to near ground level (the works). Regrowth shall be prevented or remedied either by stump grinding or by persistent regrowth removal from the trunk base. The roots shall not be poisoned. 3. The works in Order 2 shall be completed by AQF level 3 qualified arborists, with all appropriate insurances (the arborists), and in accordance with Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work 2016. 4. Should the arborists require access to the applicant's property to undertake the works in Order 2, the applicant shall provide such access upon receipt of at least 48 hours written notice, which details the date and approximate times that works are to commence. 5. All works shall be undertaken during reasonable working hours. …………………………. J Douglas Acting Commissioner of the Court ********* 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: 14 October 2022