Land and Environment Court New South Wales Medium Neutral Citation: Cohen v Haydon [2022] NSWLEC 1564 Hearing dates: 25 July 2022 Date of orders: 25 July 2022 Decision date: 25 July 2022 Jurisdiction: Class 2 Before: Douglas AC Decision: The Court orders that: (1) The application is granted. (2) Within 40 days of the date of these orders, the respondent, at his expense, shall employ arborists to remove the large dead Eucalyptus tree in the north-west corner of his rear yard, to a trunk height no higher than three (3) metres above ground level, measured from immediately adjacent to the trunk base. All timber refuse from the tree shall be removed from the site. (3) The tree removal works shall be completed by AQF level 3 qualified arborists who hold all industry appropriate insurances. The respondent, or his contracted arborists, shall supply the applicant with a copy of Certificates of Currency of said insurances at least 48 hours prior to the commencement of the tree removal works. (4) The tree removal works shall be completed in accordance with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016. (5) The respondent shall provide the applicant with at least 72 hours written notice of the date and approximate start time of the tree removal works. (6) Should it be required, the applicant shall allow all reasonable access for the contracted arborists, who hold all industry appropriate insurances, to remove all refuse from the tree from the applicant's property, upon receipt of at least 72 hours written notice. (7) Should any damage occur to the applicant's property, the respondent and/or the respondent's contracted arborists shall be financially responsible to rectify any damage so caused. (8) The tree removal works shall be undertaken during reasonable working hours. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) - apprehension of damage and injury Legislation Cited: Trees (Disputes between Neighbours) Act 2006, ss 7, 9, 10, 12 Cases Cited: McPherson v Lake [2017] NSWLEC 1081 Reuben v Lace [2010] NSWLEC 1024 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Yang v Scerri [2007] NSWLEC 592 Texts Cited: Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work 2016 Category: Principal judgment Parties: E Cohen (Applicant) P Haydon (Respondent) Representation: E Cohen (Self-represented) (Applicant) Non-appearance (Respondent) File Number(s): 22/133944 Publication restriction: No Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1. COMMISSIONER: This is an application, pursuant to s 7 of Part 2 of the Trees (Disputes between Neighbours) Act 2006 (the Trees Act) by Mr Cohen, relating to a Eucalyptus saligna (Sydney Blue Gum) (the tree) located in the rear yard of the adjacent neighbouring property. 2. Mr Cohen (the applicant) and Mr Haydon (the respondent), share a side boundary between their properties in Lisarow, on the central coast. The applicant's property is located on the western side of the respondent's land, and both properties face the same narrow crescent, to the south. The onsite hearing 1. The respondent failed to appear for the hearing at the appointed time of 10am on 25 July 2022, as ordered by the Registrar in her 'Directions of the Court', dated 20 June 2022. The respondent had appeared in person for this directions hearing of 20 June 2022. 2. After I received no response to heavy knocking on the respondent's front door, on three occasions up to 10:15am, the hearing commenced in the respondent's absence. Both properties were accessible for simultaneous inspection from the applicant's property, and it was unnecessary for me to access the respondent's land. 3. The tree is a very large, mature, forest form Blue Gum which appears to have been dead for many years. It is located within a few metres of the common property boundary, and amongst healthy Blue Gums on other neighbouring land. It stands approximately 30 metres (m) tall, with a main trunk, with a diameter of about 1.5 m, which bifurcates initially at about 3-4 m above ground level, and these two resultant trunks bifurcate further, much higher in the tree's canopy. 4. The tree displays obvious arboreal termite activity, with a large dark nest high in a major leader, and surface "termite tunnels' on many branches. One major branch, at least 6m long and about 400mm in diameter, broke from the tree and fell onto the respondent's rear yard in 2021 and was still hung up in the tree's main fork, while another large branch fell into the applicant's rear yard, close to a trampoline, in January 2022. This precipitated Mr Cohen's application. 5. One major trunk is leaning towards the applicant's dwelling at an angle of about 15 degrees from the vertical. There are also indications of branches having torn out at branch collars and failures of ascending trunks at transverse cracks, high in the canopy. Based on the arboricultural expertise which I bring to the Court, it is highly probable that this branch loss will continue. The applicant's case 1. Mr Cohen proposes the following orders: 1. Remove the dangerous dead tree. The respondent's case 1. No submissions or other evidence was provided to the Court by the respondent. 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. 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 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. Mr Cohen had outlined a record of various discussions with the respondent over recent years, during which he said that the respondent agreed to have the tree removed. At the respondent's request, Mr Cohen procured and provided Mr Haydon with three quotes for removal of the trees, after which Mr Cohen had not been able to elicit further response from, or contact with the respondent. Mr Haydon has provided no evidence in contradiction of Mr Cohen's submission in his application. As a consequence, I am satisfied that the applicant has made a reasonable effort to reach agreement, and that s 10(1)(a) of the Trees Act is engaged, and note the commentary below about this issue by Preston CJ at [194 – 195] of Robson v Leischke (2008) 72 NSWLR 98; NSWLEC 152 (Robson). "194 The Trees (Disputes Between Neighbours) Act 2006 does not specify any particular time at which the applicant must make a reasonable effort to reach agreement with the tree landowner, other than fixing the end point by requiring that the Court cannot make an order under the Act unless it is satisfied that the applicant has made a reasonable effort to reach agreement with the tree landowner. Hence, although it would be preferable for an applicant to make a reasonable effort to reach agreement with the tree landowner before making application to the Court, so as to avoid court action, there is no requirement to do so and a reasonable effort to reach agreement can be made after making the application at any time up until the Court determines the application. 195 The language in s 10(1)(a) of the Trees (Disputes Between Neighbours) Act 2006 that the applicant has made "a reasonable effort to reach agreement" is less demanding than the language used in provisions of other statutory enactments which require parties to make reasonable attempts to reach agreement in relation to matters claimed in the court originating process." 1. Therefore, the principal jurisdictional tests in this matter are at s 10(2) of the Trees Act. Damage related to the tree 1. Debris from the January 2022 branch failure was still evident in Mr Cohen's rear yard, close to the children's trampoline, consistent with debris in photographs which he submitted with his application. This rear yard is quite small, and is restricted by fences, and I understand that the applicant has discouraged his children from playing in the yard. 2. The applicant has nominated his back yard, his dwelling and an area between the two as being likely to sustain damage. I am readily satisfied, based on the location, and the tree's appearance and branch loss history, that the tree is likely to cause damage in any of these areas in the near future. In a guidance decision published in Yang v Scerri [2007] NSWLEC 592, as a rule of thumb, the 'near future' is deemed to be a period of 12 months from the date of the determination. As a consequence, s 10(2)(a) is met, and the jurisdiction of the Trees Act is engaged. Risk of Injury 1. Mr Cohen also claims that the tree presents a genuine risk of injury, to him, his wife and his children. 2. In regards to injury, the Court must consider 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]). 3. With consideration for these elements, I am satisfied that the risk of injury is moderate, including inside the applicant's dwelling as the protection that the roof structure may otherwise provide could be reduced to rubble should a large, heavy trunk fall onto it from the tree. 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, and I am also satisfied that the tree represents a moderate risk to the respondent, and his family. As a consequence, s 10(2)(b) of the Trees Act is also engaged. 4. In Robson, at para [175], Preston, CJ said, "the applicant's concern about likely injury can be to any person (s7 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". Thus, orders have been made for the removal or pruning of trees on the basis that they may cause injury to persons on the respondents' land, as in Reuben v Lace [2010] NSWLEC 1024. 5. With s 10 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 * The tree is situated on the respondent's land (s 12(a)). * As it is dead and absent of foliage, the tree contributes little to protection from the sun, or from wind. Though it is visible from neighbouring houses, and previously provided intrinsic value to public amenity, such benefit has reduced along with its declining condition, and decreased canopy cover (s 12(b3)(e)(f)). * The tree still has capacity to provide habitat for fauna, and hence makes local ecosystem and biodiversity contributions, but when a large tree represents a genuine risk, and is likely to cause damage in the near future, these latter factors must be prioritised (s 12(d)). Conclusion 1. I have examined the tree and the site and have reached the following conclusions: 1. This large, long, dead tree exhibits distinctive cracks associated with structural deterioration. It has a recent history of major branch failure. I am satisfied that it is likely to cause damage in the near future, and that it presents a genuine risk of injury. 2. As a consequence, s 10(2) of the Trees Act is satisfied, and orders shall be made for relatively urgent tree removal. 3. It is customary for the respondent to pay where orders are made under the Trees Act, and there is no reason to vary that here. Orders 1. The Court orders that: 1. The application is granted. 2. Within 40 days of the date of these orders, the respondent, at his expense, shall employ arborists to remove the large dead Eucalyptus tree in the north-west corner of his rear yard, to a trunk height no higher than three (3) metres above ground level, measured from immediately adjacent to the trunk base. All timber refuse from the tree shall be removed from the site. 3. The tree removal works shall be completed by AQF level 3 qualified arborists who hold all industry appropriate insurances. The respondent, or his contracted arborists, shall supply the applicant with a copy of Certificates of Currency of said insurances at least 48 hours prior to the commencement of the tree removal works. 4. The tree removal works shall be completed in accordance with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016. 5. The respondent shall provide the applicant with at least 72 hours written notice of the date and approximate start time of the tree removal works. 6. Should it be required, the applicant shall allow all reasonable access for the contracted arborists, who hold all industry appropriate insurances, to remove all refuse from the tree from the applicant's property, upon receipt of at least 72 hours written notice. 7. Should any damage occur to the applicant's property, the respondent and/or the respondent's contracted arborists shall be financially responsible to rectify any damage so caused. 8. The tree removal 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: 13 October 2022