Land and Environment Court of New South Wales CITATION : Rizk v Department of Housing [2009] NSWLEC 1155 APPLICANT John Rizk PARTIES : RESPONDENT Department of Housing FILE NUMBER(S) : 20053 of 2009 CORAM: Thyer AC KEY ISSUES: TREES (NEIGHBOURS) :- to rectify and prevent property damage, to prevent injury to people, and for compensation. LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 Rizk v Department of Housing [2007] NSWLEC 297 CASES CITED: Murphy v Maggio [2008] NSWLEC 1132 Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 DATES OF HEARING: 13 May 2009 EX TEMPORE JUDGMENT DATE : 13 May 2009 APPLICANT Mr J Risk (litigant in person) LEGAL REPRESENTATIVES: RESPONDENT Mr N Cureton (solicitor) SOLICITOR Legal Services Branch Department of Housing JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Thyer AC 13 May 2009 20053 of 2009 John Rizk v Department of Housing JUDGMENT This judgment was reserved. 1 ACTING COMMISSIONER: A large Sydney Blue Gum (the tree) is growing in the front yard of 15 Kingsford Avenue, Eastwood (the property) which is owned by the New South Wales Department of Housing (Housing). It is located about 2 m from the common boundary of the adjoining property to the east. 2 Mr John Rizk is the owner of 17 Kingsford Avenue, Eastwood, the adjoining property to the east. His house is located to the south-east of the tree, the north-western corner of his house being about 6 m from the trunk of the tree. He advised that he and his wife have occupied their home for about four years. 3 Mr Rizk makes an application under the Trees (Disputes Between Neighbours) Act 2006 to rectify and prevent property damage, to prevent injury to people, and for compensation. He attended the hearing and was accompanied by his wife and their infant son. 4 Housing was represented by solicitor Mr Nathan Cureton of its Legal Services Branch. He was accompanied by Mr Kevin Crider, Senior Client Service Officer of Housing's Ryde Office, which manages the property. 5 Mr Rizk previously made an application under the Act for removal of the tree. The determination of that matter, Rizk v Department of Housing [2007] NSWLEC 297 on 20 April 2007 resulted in orders. Those orders require aerial inspection of the tree and removal of all deadwood over 30 mm in diameter on an annual basis by an AQF Level 3 arborist. Also, if the aerial inspection identifies any defect capable of causing damage to property, or injury to people, an AQF Level 5 arborist is to carry out a risk assessment and make recommendations for the management of that risk. The inspections, risk assessment and necessary work is to be at the cost of the tree owner. 6 Mr Rizk claims in his application that Housing has failed to comply fully with those orders, as follows: The Department of Housing also failed to ensure the pruning of as tree that was recommended by their consulting arborist Tony Lydon, of TLC Tree Solutions, and pursuant to the Land and Environment Court orders. Tony advised us that Transfield, the field operator employed by the Department of Housing, only conducted rudimentary and minimal pruning of the tree. 7 Neither party presented an arboricultural report. However, in his application, Mr Rizk quoted advice provided to him via email from arborist Mr Lydon, who had inspected the tree. 8 Mr Rizk seeks orders that the tree be removed, that Housing and Ryde City Council accept responsibility for damage and injury caused by the tree since the Land and Environment Court of New South Wales made orders regarding it in April 2007, and should the tree be retained Housing and Ryde City Council accept liability for all tree matters and costs related to damage, injury or death caused by the tree. 9 Housing seeks that Mr Rizk's proposed orders be declined, and that the orders made by the Court on 20 April 2007 continue. 10 When assessing an application under the Trees (Disputes Between Neighbours) Act 2006 the Court must be satisfied that one or more of the four tests in s 10(2) (a) and (b) of the Act are met by each tree before making an order regarding that tree. These tests are: Has the tree caused damage to the applicant's property ? Is the tree now causing damage to the applicant's property ? Is the tree likely in the near future to cause damage to the applicant's property ? Is the tree likely to cause injury to any person? 11 Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of: Is the damage or risk sufficiently serious to warrant the Court intervening? If so, what should the Court order? Who should pay to carry out those orders? 12 Further, before determining an application, the Court is to consider the matters in s 12 of the Act. The tree 13 I observed the tree to be a Sydney Blue Gum (Eucalyptus saligna) 25 to 30 m tall with a crown spread of about 20 m and trunk diameter of about 1m. It appears to be healthy, stable in the ground, with no decay or weakness visible in the lower trunk. The tree has a single, vertical trunk to about 5 m above ground where it branches to form a major trunk inclined slightly to the north-west and a minor trunk inclined slightly to the south-east. Those two trunks further branch to form four or five generally vertical trunks. The trunks and branches appear to have good taper and are not heavily end loaded. Ten or more pruning cuts visible on trunks on the southern and eastern side of the tree indicate that many live branches of about 100 mm to 200 mm diameter have been pruned in the last year or two, reducing the overhang of Mr Rizk's property. The remaining crown of the tree appears to be fairly well balanced over the lower trunk, with the greater bulk of the crown to the north-west. There do not appear to be any branches larger than about 50 mm diameter directly over Mr Rizk's house. There appear to be only a few branches leaning towards his house, and those branches are high in the crown, with diameters up to about 150 mm. I did not observe any included bark in major trunk or branch junctions. There is some bare wood visible in a branch junction at about mid tree height on the northern side of the tree. There are four pruning cuts of between 150 mm and 300 mm diameter on the trunk between 2 m and 6 m above ground. Photographs indicate that the second highest of those, just below the major fork, is the location where the remaining stub was removed after a live branch broke a few metres from the trunk in January 2007. I observed a small amount of dead wood up to about 5 cm diameter in the tree. Inspection, reports and pruning 14 Mr Rizk states that he is aware of two occasions of pruning and one occasion when Mr Lydon supervised pruning, since April 2007. He also states that there was often only a short time between pruning and the next dead branch falling. His claim for compensation includes costs for Mr Lydon to supervise re-pruning of the tree by Transfield in June 2008 and half the cost of a report/assessment for pruning prepared by Mr Lydon to facilitate that pruning. 15 In his application, Mr Rizk quotes advice to him from Mr Lydon, contained in an email dated 17 July 2008, as follows: The tree will continue to loose occasional limb – as all trees do…some of them may even be big enough to crack a tile…such limbs might even be large enough to cause a bruise if they where to connect with a person…working out which (branches/limbs) they might be is impossible. 16 Housing have provided copies of five 'work orders' dated from 9 July 2007 to 22 May 2008 raised variously for inspection, pruning or reports on the tree. However, Housing has not provided any copies of reports or inspection notes, nor any confirmation that the work was carried out. Damage and injury 17 Mr Rizk has provided a quotation dated 20 November 2007 for replacement of tiles broken by fallen tree branches. I also acknowledge the roof damage caused by dead branches and the damage caused to a gas pipe by a live large limb, which occurred prior to April 2007. On that basis I find that the tree has caused damage to Mr Rizk's property, thus meeting the first test in s 10(2)(a) of the Act. 18 Mr Rizk claims that dead wood continues to fall from the tree since April 2007. That dead wood includes branches about 5 cm diameter and up to 2 m long, falling every three to four weeks, generally in high winds, there being about 25 such branches in the last two years. He also claims that at least 50 dead branches about 2 cm diameter and 1 – 2 m long have fallen in the two years, and that dead branches up to 1 cm diameter and 0.5 – 1 m long fall almost daily. He claims that all sizes of dead wood have caused damage to his property. On that basis and my observation of dead wood in the tree, I find that falling dead wood is likely to cause damage to Mr Rizk's property in the near future, thus meeting the third test in s 10(2)(a) of the Act. 19 Mr Risk claims that live wood up to 2 cm diameter and 0.5 m long have fallen but not caused any damage. 20 Mr Rizk states in his application that his wife sustained an injury to her head from falling debris from the tree, when she went outside in the rain on 30 September 2007 to asses if a fallen branch had damaged the roof. It seems that the dead wood falls mainly in windy weather, and it may be possible for Mr Rizk and his family to limit time spent under the tree in such conditions. However, I find that such efforts by them may not fully protect Mr Rizk's family and would not protect residents of the property where the tree is growing, or passers by. On that basis, I find that dead wood falling from the tree is likely to cause injury to a person, thus meeting the test in s 10(2)(b) of the Act. 21 I acknowledge that a large live branch broke from the tree and fell into Mr Rizk's front yard in January 2007. I note that the Court judgment of 20 April 2007 states at par 4: The photographs of the large fallen limb revealed that it was vulnerable to failure, being most likely a branch resulting from epicormic growth following on from either inappropriate lopping or some other damage to the tree. 22 Absent an arboricultural report or further history of the tree, I find that the live branch failure in January 2007 is a single incident in the long life of the tree, and does not indicate that further live branch failure is likely. On that basis, and on my interpretation of Mr Lydon's comments that future live branch failures are likely to be small branches, I find that live branches are not likely to cause injury. Compensation 23 Mr Rizk claims compensation for six items. I understand that item 3. on his list is $220 for repair of roof damage that occurred on 30 September 2007. He has provided what appears to be a combined invoice/receipt for that work from Roofshield dated 20 November 2007. On that basis I will order Housing to pay compensation of that $220. 24 Items 1., 2., 4. and 5. on his list are for supervision of pruning, preparation of a tree report, and two roof repairs. However, as no receipts have been provided showing payment for those items, I am not able to order compensation. I note that at the hearing, Housing invited Mr Rizk to submit those claims for its consideration. 25 I understand that item 6. on Mr Rizk's list is an unquantified claim for compensation for injury sustained by his wife on 30 September 2007. In accordance with s 9 (1) of the Act, the Court is only able to make an order for the payment of compensation for damage to property, therefore I cannot make any orders in relation to compensation for injury. Considerations 26 Under s 12 (d) of the Act, I note that the tree is an Australian native species that occurs naturally in the local area. This specimen appears too young to be a remnant of the Blue Gum High Forest of the area. No evidence has been provided on whether it is a self-seeded tree endemic to the area or a planted seedling. Regardless, it is likely to make an important contribution to the local ecosystem. Many species of birds are likely to use the tree to feed and shelter. I observed some small hollows in branch stubs that may provide animal habitat now or in the future. 27 Under s 12 (e) of the Act, I find that the tree contributes to the natural landscape and scenic value of the property and the surrounding local area, being the largest tree in the street, visible for the whole length of the street and from surrounding streets. Also, this tree complements other Gum trees visible in the local area, creating some impression of a very open woodland. 28 Under s 12 (f) of the Act, I find that the tree provides intrinsic value through oxygen production, carbon sequestration, cooling summer shade, and deflection and dispersal of strong winds. Mr Rizk stated concerns that the tree was exposed to strong winds, making it likely to fail. However, I observed that there are other large trees within a few hundred metres in each direction, and many other smaller but significant trees in the local, all of which are likely to disperse strong winds in the area. 29 Under s 12 (j) of the Act, I note that Mr Rizk does not consider that Housing has fulfilled the orders made by the Court on 20 April 2007, and that Housing cannot provide any written evidence that the ordered works have been carried out. Observation of the tree confirms that some pruning work has been done, but better record keeping and communication by Housing will be necessary to satisfy Mr Rizk that the required work is completed. 30 Also under s 12 (j) of the Act, I note Mr Rizk's request that I make a similar determination to that made by the Court in Murphy v Maggio [2008] NSWLEC 1132 where orders were made for removal of a significant eucalypt. However, that judgment [at para 1] states that 'There have been a number of instances of summer branch drop from this tree…'. No evidence has been provided of any 'summer branch drop' from Mr Rizk's tree, and on that basis I decline to make a determination similar to Murphy v Maggio. 31 Also under s 12 (j) of the Act, I note Mr Rizk's request that I make a determination in line with Ryde City Council which gave approval for removal of two healthy Sydney Blue Gums from a front yard at Melrose Park, in March 2009. I note that Ryde City Council has power to grant approval for removal of a tree after consideration of an application from the owner of that tree, and in that case approval was granted. Such a decision by the Council does not make me find, after consideration of the evidence in this case, and the matters required to be considered by the Court, that I should order removal of the tree. I also note that Housing's written response includes a letter to it from City of Ryde dated 5 April 2007, referring to Housing's application to remove the tree. The letter states that permission to remove the tree is denied by the Council. However, no findings or orders that I make in this case prohibit Housing from making a further application to the Council for removal of the tree, or removing the tree if Council approval is granted. 32 Finally, under s 12 (j) of the Act, I note the statement in Mr Rizk's application that his house is the only one in the entire block where the whole house is veiled under the shadow cast by the tree. Given the location of the tree to the west of his property, that would appear not to be the case in the mornings at least. Regardless of the extent of shading, as discussed by Preston CJ in Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 [para 135 and 173] obstruction of access to light on land by a tree situated on adjoining land does not constitute "damage to property on the land". Conclusions 33 I find that falling deadwood from the tree is likely to cause damage in the near future and injury to persons, so I propose to order that deadwood larger than 20 mm diameter be pruned from the tree. 34 I find from observation of the tree and from the evidence provided that failure of live branches from the tree is not likely to cause damage in the near future or injury to any person, so I will not order removal of the tree. 35 I find that if the tree has been inspected by an arborist for Housing, the report of that inspection has not been given to Mr Rizk, nor has he been kept informed of intended pruning or completed pruning. I find that the failure of communication is likely to have increased Mr Rizk's concerns regarding the tree. For those reasons I will make orders that Mr Rizk be involved in the selection of consulting arborist and pruning contractor, and that he be provided with a copy of the report. 36 I find that rather than setting an ongoing maintenance regime for the tree without having the benefit of a detailed inspection and report, it is more appropriate to order initial pruning, inspection and report, and leave Housing to establish suitable ongoing maintenance on the basis of the report. For that reason I will rescind the orders made on 20 April 2007 and make new orders. 37 Noting the problems that Housing has identified with its records, and the dissatisfaction that Mr Rizk has found with Housing's contractor arrangements, I will, with Housing's agreement obtained at the hearing, order that Housing use a consultant and contractor from a list to be provided by Mr Rizk, that the work be done at Housing's cost by 31 July 2009, that the consultant and contractor be paid within 28 days of submission of invoices to Housing, and that the Senior Client Officer of the Ryde Office of Housing have carriage of these matters. Orders 38 The application is upheld in part, and the Court makes the following Orders that apply to 15 Kingsford Avenue, Eastwood: a. The orders of the Court made in Rizk v Department of Housing [2007] NSWLEC 297 on 20 April 2007 are rescinded; b. Mr Rizk shall provide a list of three AQF Level 5 arborists that he would accept to inspect and report on the tree, and a list of three AQF Level 3 arborists that he would accept to prune dead wood from the tree, to the Senior Client Officer of the Ryde Office of Housing by 10 June 2009; c. The tree shall be inspected by an AQF Level 5 arborist selected from Mr Rizk's list, and a written report prepared by that arborist addressing the health, structure, defects and safety of the tree, and setting out a plan for maintenance of the tree until 2014; d. Dead wood having a diameter of greater than 20 mm at its point of attachment shall be pruned from the whole of the tree by an AQF Level 3 arborist selected from Mr Rizk's list and having suitable insurances, and the work shall be done in accordance with the Australian Standard AS 4373-2007 Pruning of Amenity Trees , and the NSW WorkCover Code of Practice for the Amenity Tree Industry (1998) ; e. The work in c. and d. above shall be completed by 31 July 2009 at the cost of the Department of Housing. f. A copy of the report prepared in accordance with c. above shall be given to Mr Rizk by 15 August 2009; g. The arborists who do the work described in c. and d. above shall invoice Housing directly for that work, and Housing shall pay those invoices within 28 days; h. The Senior Client Officer of the Ryde Office of Housing shall be the contact person for all matters regarding the tree work required by these orders; i. Mr Rizk shall grant access over his property to carry out the work described in c. and d. above; j. The work described in c. and d. above shall take place at reasonable times, and on reasonable notice to Mr Rizk; k. The department of Housing shall pay Mr Rizk $220 by 15 June 2009 as compensation for roof repairs shown on his invoice/receipt No 01700 from Roofshield dated 20 November 2007; l. These orders do not prohibit removal of the tree if consent is granted for that removal by Ryde City Council. ___________________ Peter Thyer Acting Commissioner of the Court The formal orders are not included as part of this judgment but a copy may be obtained from the Court's registry upon payment of a fee. Details are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/ 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.