Land and Environment Court New South Wales Medium Neutral Citation: Mildred v Steinhauer; Lee v Steinhauer [2023] NSWLEC 1165 Hearing dates: 17 November 2022 Date of orders: 11 April 2023 Decision date: 11 April 2023 Jurisdiction: Class 2 Before: Sheridan AC Decision: Proceedings 2021/249664 The Court orders: (1) The application for compensation is refused. (2) The application to remove the tree is granted. (3) The Respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances to remove the tree to ground level. (4) The works are to be done in accordance with the Safe Work Australia (2016) 'Guide to Managing Risks of Tree Trimming and Removal Work'. Tree removal is to be completed within 60 days of the date of these orders. (5) All works are to be completed during normal work hours. Should access be required into the Applicants' properties to undertake these works, or for removal of refuse, such right to access shall be granted, subject to 48 hours written notice. Proceedings 2022/252521 The Court orders: (1) The application for compensation is refused. (2) The application to remove the tree is granted. (3) The Respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances to remove the tree to ground level. (4) The works are to be done in accordance with the Safe Work Australia (2016) 'Guide to Managing Risks of Tree Trimming and Removal Work'. Tree removal is to be completed within 60 days of the date of these orders. (5) All works are to be completed during normal work hours. Should access be required into the Applicants' properties to undertake these works, or for removal of refuse, such right to access shall be granted, subject to 48 hours written notice. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) — Is the tree causing damage to the applicant's sewer pipes – is the tree likely to cause such damage in the near future – does the tree present a genuine risk requiring mitigation – is tree removal an appropriate intervention – do benefits from tree exceed the imperative to intervene Legislation Cited: Land and Environment Court Act 1979, s 56A Trees (Disputes Between Neighbours) Act 2006, Pts 1, 2, ss 4, 5, 7, 9, 10, 12 Uniform Civil Procedure Rules 2005, Sch 7 Cases Cited: Barker v Kyriakides [2007] NSWLEC 29 Mildred v Steinhauer [2022] NSWLEC 88 Mildred v Steinhauer [2022] NSWLEC 1148 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: Proceedings 2021/249664 Giles Mildred (Applicant) Erna Steinhauer (Respondent) Proceedings 2022/252521 Albert Kin Kay Lee (Applicant) Erna Steinhauer (Respondent) Representation: Proceedings 2021/249664 G Mildred (Self-represented) (Applicant) K Sosna (Agent) (Respondent) Proceedings 2022/252521 A Lee (Self-represented) (Applicant) K Sosna (Agent) (Respondent) File Number(s): 2021/249664; 2022/252521 Publication restriction: Nil Judgment 1. COMMISSIONER: The Applicants, Mr Albert Lee and Mr Giles Mildred, live in Mortdale, a suburb in the Georges River Council, Local Government Area of NSW. Mr Lee resides at 9 Cromdale Street and Mr Mildred is the owner of 7A Cromdale Street. The subject of the dispute is a mature Eucalyptus microcorys (Tallowood) (the tree) located near the north-western corner of the respondent's land at 90 Seaforth Avenue, Oatley. 2. This hearing relates to two applications before the Court, one by Mr Lee (Matter No 2022/252521) and one by Mr Mildred (Matter No 2021/249664). Both Applicants claim that the tree in their neighbour's property presents a high risk, has damaged their sewer pipes, and roof, and that the tree which overhangs their land sheds leaves, sticks and other debris which falls or blows onto their roofs, gutters, and other surfaces, creating an unreasonable and costly maintenance burden. Background to the Appeal 1. The application by Mr Mildred was previously heard on 1 and 14 December 2021, before Acting Commissioner Douglas (Mildred v Steinhauer [2022] NSWLEC 1148). The judgment was delivered on 28 March 2022, whereby the Acting Commissioner ordered pruning of the tree with the Appellant to pay 70% of that cost inter alia. 2. Mr Mildred subsequently commenced an appeal pursuant to s 56A of the Land and Environment Court Act 1979 (NSW) (LEC Act) in relation to the Acting Commissioner's decision. Justice Pain, in Mildred v Steinhauer [2022] NSWLEC 88, subsequently determined to uphold the appeal, setting aside the decision of the Acting Commissioner, and remitted the matter to be reheard by another Commissioner. 3. Since the hearing of this matter, Mr Lee (a neighbour of Mr Mildred's who owns 9 Cromdale) has made a separate application on 25 August 2022 under s 7 of Pt 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) seeking the removal of the tree, and compensation for damage caused by the tree (T1) to his property (9 Cromdale). The Court has determined that Mr Lee's proceedings will be heard in conjunction with Mr Mildred's proceedings. 4. On 25 October 2022, Mr Mildred filed, with the Court's permission, an Amended Claim Form (Forms C and H) in relation to seeking financial compensation for damage caused by T1 to 7A Cromdale. This Second supplemental bundle of documents provides additional evidence in support of Mr Mildred's Application for removal of T1. This Second supplemental bundle of documents also supports Mr Lee's Application, and Mr Lee equally relies on the evidence in this Second supplemental bundle of documents. 5. Included in the Amended Claim Form were: * Further evidence in support of the Applicant's Application for removal of Tl. * Revised arborist report from Dr Trevor Hawkeswood dated 22 October 2022 (Arborist Report). The facts 1. Mr Lee and Mr Mildred seek orders for the removal of the tree, pursuant to s 7 of Pt 2 of the Trees Act, because of damage they claim it is causing to sewer pipes which run near and/or under the tree, and on the basis of concerns that its roots will cause future damage to sewer pipes. Mr Mildred also claims that the tree represents a genuine risk of injury to his tenants, who have young children, to his family who plan to occupy his property in the future, and to his next-door neighbour, Mr Lee. Mr Lee was also concerned about the risk of injury to his family, providing oral evidence at the on-site hearing about an injury he had sustained to his hand from a falling branch from the tree. 2. Ms Steinhauer, the Respondent, has lived at her property for over 46 years. The three parties share a side boundary. Mr Lee's and Mr Mildred's properties face Cromdale Street to the west, while the Respondent's property faces east towards a parallel street, Seaforth Avenue. About 40% of Mr Mildred's south facing boundary in his back yard is shared with Ms Steinhauer's northern boundary. Mr Lee has lived at his property for 33 years and Mr Mildred purchased his property about two years ago and currently leases it to tenants. 3. It is Mr Mildred's position that some of the branches that have fallen from T1 since the matter was heard before Assistant Commissioner Douglas in December 2021 not only pose a real and significant risk of injury, but are also large enough to kill a person. Mr Mildred provided examples of such branches as did the revised arborist report (refer photos below). Figure 1 – Photo of fallen branch – extract from Applicants bundle Figure 2–fallen branch from T1 - extract from revised arborist report 1. Ms Steinhauer prefers that the tree be retained. She notes that the tree is precious and important to her and that it has been in situ since prior to her occupation in the 1970s. In a letter to the Court dated 16 November 2021, Ms Sosna, the Respondent's agent, wrote that should the tree be removed, the cost of cleaning up the garden, house and surroundings will be expensive, and she queried who would bear such costs. She also submitted that Ms Steinhauer had pruning works undertaken on the tree on multiple occasions in recent years but supplied no evidence in that regard. 2. The tree is said to be about 60 years old. Being renowned as a long-lived species, the tree may be considered to be near the middle of its life cycle. It is about 25 m tall, with a canopy spread of about 12m. The tree is substantially covered by a trumpet vine (Pyrostegio venusto), which has spread throughout its canopy. Trees (Disputes Between Neighbours) Act 2006 (NSW) 1. The following provisions of the Trees Act are relevant to this appeal: Part 1 Preliminary … 5 Action in nuisance No action may be brought in nuisance as a result of damage caused by a tree to which Part 2 applies or as a result of an obstruction of sunlight to the window of a dwelling, or of a view from a dwelling, caused by trees to which Part 2A applies. ... Part 2 Court orders—trees that cause or are likely to cause damage or injury … 7 Application to Court by affected land owner 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. … 9 Jurisdiction to make orders (1) 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. (2) Without limiting the powers of the Court to make orders under subsection (1), an order made under that subsection may: (a) require the taking of specified action to remedy damage to property, or (b) require the taking of specified action to restrain or prevent damage or, if damage has already occurred, further damage, to property, or (c) require the taking of specified action to prevent injury to any person, or (d) require the making of an application to obtain any consent or other authorisation referred to in section 6 (1) (a), or (e) authorise the applicant concerned to take specified action to remedy, restrain or prevent damage or (if damage has already occurred) further damage to property, or (f) authorise the applicant concerned to take specified action to prevent injury to any person, or (g) authorise land to be entered for the purposes of carrying out an order under this section (including for the purposes of obtaining quotations for the carrying out of work on the land), or (h) require the payment of costs associated with carrying out an order under this section, or (i) require the payment of compensation for damage to property, or (j) require the replacement of a tree that the Court orders to be removed and for the new tree to be maintained to a mature growth. 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. … 12 Matters to be considered by Court Before determining an application made under this Part, the Court is to consider the following matters: (a) the location of the tree concerned in relation to the boundary of the land on which the tree is situated and any premises, (b) whether interference with the tree would, in the absence of section 6 (3), require any consent or other authorisation under the Environmental Planning and Assessment Act 1979 or the Heritage Act 1977 and, if so, whether any such consent or authorisation has been obtained, (b1) whether interference with the trees would, in the absence of section 25 (t) (Legislative exclusions) of the Native Vegetation Act 2003, require approval under that Act, (b2) the impact any pruning (including the maintenance of the tree at a certain height, width or shape) would have on the tree, (b3) any contribution of the tree to privacy, landscaping, garden design, heritage values or protection from the sun, wind, noise, smells or smoke or the amenity of the land on which it is situated, (c) whether the tree has any historical, cultural, social or scientific value, (d) any contribution of the tree to the local ecosystem and biodiversity, (e) any contribution of the tree to the natural landscape and scenic value of the land on which it is situated or the locality concerned, (f) the intrinsic value of the tree to public amenity, (g) any impact of the tree on soil stability, the water table or other natural features of the land or locality concerned, (h) if the applicant alleges that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant's property: (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, and (ii) any steps taken by the applicant or the owner of the land on which the tree is situated to prevent or rectify any such damage, (i) if the applicant alleges that the tree concerned is likely to cause injury to any person: (i) anything, other than the tree, that has contributed, or is contributing, to any such likelihood, including any act or omission by the applicant and the impact of any trees owned by the applicant, and (ii) any steps taken by the applicant or the owner of the land on which the tree is situated to prevent any such injury, (j) such other matters as the Court considers relevant in the circumstances of the case. The hearing 1. The parties were self-represented. Ms Steinhauer was represented at both hearings by her carer, Ms Sosna, acting as her agent. All documents required to legally formalise Ms Sosna's agency arrangement were supplied to the Court and provided in the case file. 2. The Court had one report from an arborist for the Applicants (Mr Mildred and Mr Lee). The arborist, Dr Trevor Hawkeswood, provided evidence at the on-site hearing and submitted a report dated 30 August 2021 ('arborist report') and a "revised arborist report" dated 22 October 2022. The revised arborist report acknowledges the Expert witness code of conduct set out in Schedule 7 of the Uniform Civil Procedure Rules 2005 (NSW) and Dr Hawkeswood agreed to be bound by it. 3. The Court inspected the tree, the three properties and the surrounding environment before hearing submissions onsite. The tree is on adjoining land 1. Although part of the tree overhangs Mr Mildred's and Mr Lee's properties, it was apparent from my observations that the tree's stem at ground level is located on the Respondent's land. The parties agree that the tree is principally on the Respondent's land as per s 4(3) of the Trees Act, and consequently, the Applicants have been able to apply for orders pursuant to s 7. The Applicant made a reasonable effort 1. Between 5 July and 4 August 2021, Mr Mildred sent Ms Steinhauer three letters, which requested removal of the tree at his and his neighbour's expense. Mr Mildred notes that his neighbour, Mr Lee, subsequently made numerous representations to Ms Steinhauer, during at least one of which she advised Mr Lee that "she did not want to speak to me (Mr Mildred) regarding this matter". Mr Mildred also says that he was advised by Mr Lee that during his most recent discussion on 14 August 2021, the Respondent told Mr Lee to "get lost and stop harassing her", and that since this time, "the Respondent has not co-operated and has ignored any requests to sign the application" to Council for tree removal. 2. The Applicants have therefore contacted the respondent on several occasions. The Respondent expressed an unwillingness to negotiate. While the nature of their relationship, and circumstances leading to that, might not be relevant to other parts of this decision, I am satisfied that the Applicants reasonably expected that further discussion about the tree was unlikely. The Applicants have therefore made a reasonable effort to reach agreement with the Respondent (s 10(1)(a) of the Trees Act). The tree is likely to cause injury 1. The tree is approximately 25 metres tall. It has dead branches spreading above both the Applicants' and Respondent's properties. It is also covered in a vine (trumpet vine) which has wrapped around a significant portion of the tree (refer Figure 3). Figure 3 – Photo of the tree covered in a vine – extract from revised arborist report 1. The arborist also identified that the tree is infested with borers and possibly termites and has continual shedding of live and dead branches (refer Figure 4). Evidence provided by Mr Lee is that he was hit by a falling branch in his backyard and sustained an injury to his thumb. Mr Lee also provided evidence that the roots of the tree have previously invaded his sewerline which caused blockages requiring repair. 2. In relation to T1 posing a real and significant risk of injury, the revised arborist report on page 8 refers to T1 being "dangerous and unpredictable" owing to "hanger branches ready to fall". Further, the revised arborist report on page 9 states, "[d]ead branches have continued falling since my initial visit on 9 July 2021...there is a significant size range. Some branches are large enough to kill a person." 3. At the onsite hearing the arborist noted that: * The tree continues to lose branches as predicted in his initial report. * At least one of the branches was alive and fell on the owner's property roof and was over 4 metres long. * The tree appears to have widespread and significant borer activity in both the trunk and the canopy. * There are also fungal cankers on the trunk which indicates the tree has fungal infections which will increase the rate of decay of secondary xylem. * The dead branches also have wood rotting fungus spread by the larvae of wood boring beetles and moths. Combinations of fungus and wood boring beetles are the main contributing factors to branch death in this tree. * The risk of T1 is further heightened by the fact that T1 is infested by a vine (Pyrostegio venusto) which is attacking T1, all the way up to the canopy. * Approximately 90% of the tree canopy is covered by the vine which was likely to kill the tree, in the near future. Figure 4 – Photo of borer damage to the tree – extract from revised arborist report 1. The Court's power to make orders is limited at s 10(2) of the Trees Act: 10 Matters of which Court must be satisfied before making an order (1) … (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. Therefore, according to s 10(2) of the Trees Act, the Court can only make orders for the tree in these proceedings if I find that the tree is likely to cause damage to the Applicants' properties in the near future, or is likely to cause injury to any person. As per the long-held principle in Yang v Scerri [2007] NSWLEC 592, I regard the near future to be a period of 12 months from the present as large dead branches are likely to fall within the near future. On the Applicants' properties, branches will fall onto Mr Lee's garden, which includes a clothes drying area. On Mr Mildred's property, branches would fall onto the rear garden, which contains children's play equipment and branches would also fall onto the roof of the building close to this section of the boundary. 2. Mr Hawkeswood's report includes a risk assessment. This assessment concludes that the probability of more/additional branches falling from the Eucalyptus microcorys tree on property or persons is high. The assessment notes that the branches have already caused one hand injury to the owner of 9 Cromdale St. In addition, the roots have caused over $2000 damage repairs to the sewerline passing underneath the tree. The report also notes that additional damage to roofing tiles has also recently occurred. 3. Mr Hawkeswood used the QTRA methodology to assess the danger of this tree. His evidence onsite was that given the tree is continually losing branches due to borer and termite infestations, the tree has a potentially weak branching trunk/branch structure, there are two dwellings that the tree could fall onto (as a major branch) as well as persons, and the fact that roots are a significant problem to the sewerline, the probability of failure using the QTRA system is 1/1000. This is the red risk which is unacceptable such that the risks should not be tolerated and the risk should be controlled. Mr Hawkeswood recommends that due to the risk, the tree should be removed because of the threat of dead branches, live branch fall and potential danger to property and people. Based on the evidence provided at the onsite view and in the arborist's report, I accept his finding that the likelihood of large branch failure within the next year is probable. 4. Given the existing nature of the Applicants' properties beneath the tree's crown, it is likely to damage their properties in the near future, I accept the Applicants' submissions that falling tree branches are likely to cause injury. This was corroborated by Mr Lee's evidence at the onsite view regarding the injury to his thumb. Although branches are also likely to damage the roof of the Applicant's dwelling (Mr Mildred), that is not part of the jurisdictional test at s 10(2)(a) of the Trees Act but could be considered as one of the discretionary matters at s 12(j) if orders are to be made. I note here that the Respondent disputes the need for the tree to be removed. Does the tree need to be removed? 1. As the Applicants and their arborist submitted, removing the tree is now the most practical way to remove the risk. Partial removal, or other risk mitigation measures, would only cost more in the long term. Therefore, I shall order the tree's removal. Who should pay? 1. Mr Mildred seeks that the proposed tree removal be undertaken at Ms Steinhauer's expense, and makes a claim for compensation for other expenses, such as those previously incurred for pruning of the tree and for broken roof tiles and a skylight. Mr Lee also seeks that the removal of the tree be undertaken by the Respondent and makes claim for expenses relating to the unblocking of his sewer pipe under his property. Other matters 1. I have considered all other relevant matters at s 12 of the Trees Act and find it appropriate to order the tree's removal at the Respondent's cost. Conclusion 1. I have examined the tree and the site and have reached the following conclusions: 1. From my observations, the tree is significantly compromised by the extent of borer damage and the vine which wraps around a majority of the tree canopy. 2. There is evidence of damage to the applicant's sewer pipes and this is likely to occur again. 3. From my observations at the onsite hearing, the tree is infested with trumpet vine, which has affected the vigour of the tree and the canopy is also widely infested with beetle borers. This has resulted in dead and live branches continuing to fall and, from the evidence provided, injuring one of the Applicants. 4. The revised arborist report provided on behalf of the Applicants by Dr Trevor Hawkeswood, dated 22 October 2022, acknowledges adherence to the Expert Witness Code of Conduct in Schedule 7 of the Uniform Civil Procedures Rules 2005. The report notes that the tree is a danger to children who occupy the 7A Cromdale Street property and the roots of the tree have invaded the Applicants' sewerline and plumbers have had to clear the roots blocking the pipeline on at least two occasions. It concludes that the continual falling branches as well as hanger branches ready to fall make this tree dangerous and unpredictable and for these reasons should be removed. 5. The tree's canopy is holding a level of hanging and dead branches, sufficiently numerous and large for tree risk to be deemed high. As a result, s 10(2) of the Trees Act is engaged, and orders for intervention contemplated. Compensation 1. Turning to the matter of compensation, I note that Mr Lee has engaged a plumber on several occasions since 2018 to clear her sewer pipe. Mr Lee also provided evidence that the previous owner of 7A Cromdale had to carry out plumbing work in 2009 and twice in 2010 and in 2021, to repair and maintain the PVC sewer pipes under that property. Whilst Mr Lee has indicated in his Application that the previous owner of 7A was informed by his plumber that the cracking and blocking of the sewer pipe was likely to have been caused by T1, there was no physical evidence provided to the Court at the on-site view, to identify that this was the case or that the pipe was repaired or replaced so as to prevent further root ingress. The roots cleared from Mr Lee's sewer pipe were also not identified, apart from Mr Lee being of the opinion that the roots were from T1. On the balance of probability, the roots that have blocked the applicant's sewer are likely to have come from the tree growing on the respondent's property with the most likely plant being T1. Therefore, as one of the tests under s 10(2) is satisfied, the jurisdiction is enlivened and the Court may make an order. However, as none of the roots were kept or identified, it is not reasonable to make an unqualified order as to compensation. 2. Mr Mildred has requested compensation for a variety of expenses, such as those previously incurred for pruning of the tree and for broken roof tiles and a skylight. As in Barker v Kyriakides [2007] NSWLEC 292, it is expected that some level of external housekeeping and maintenance is normal for people who live in leafy urban environments and who benefit from the environmental and aesthetic services that trees provide. In addition, on the basis that Ms Steinhauer is to pay for the removal of T1 to prevent further damage, I am satisfied that it is not reasonable to also require compensation to the Applicant. Orders Proceedings 2021/249664 1. The Court orders: 1. The application for compensation is refused. 2. The application to remove the tree is granted. 3. The Respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances to remove the tree to ground level. 4. The works are to be done in accordance with the Safe Work Australia (2016) 'Guide to Managing Risks of Tree Trimming and Removal Work'. Tree removal is to be completed within 60 days of the date of these orders. 5. All works are to be completed during normal work hours. Should access be required into the Applicants' properties to undertake these works, or for removal of refuse, such right to access shall be granted, subject to 48 hours written notice. Proceedings 2022/252521 1. The Court orders: 1. The application for compensation is refused. 2. The application to remove the tree is granted. 3. The Respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances to remove the tree to ground level. 4. The works are to be done in accordance with the Safe Work Australia (2016) 'Guide to Managing Risks of Tree Trimming and Removal Work'. Tree removal is to be completed within 60 days of the date of these orders. 5. All works are to be completed during normal work hours. Should access be required into the Applicants' properties to undertake these works, or for removal of refuse, such right to access shall be granted, subject to 48 hours written notice. Acting Commissioner Sheridan ********** Amendments 26 April 2023 - Pursuant to rule 36.17 of the UCPR (the slip rule), correction is made to clarify the applicants and orders made in each set of proceedings. 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: 26 April 2023