Land and Environment Court New South Wales Medium Neutral Citation: Keir v Olson & ors [2014] NSWLEC 1245 Hearing dates: 28 August 2014 23 October 2014 Decision date: 02 December 2014 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is upheld. See orders at paragraph 25. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage; injury; orders for tree removal, fence replacement and planting a replacement tree. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Category: Principal judgment Parties: Julie Keir (Applicant) Erin Olson (First Respondent) Samantha Olson (Second Respondent) Phillipa Howse (Third Respondent) Representation: Julie Keir, litigant in person (Applicant) Samantha Olson, litigant in person (First and Second Respondents) Phillipa Howse, litigant in person (Third Respondent) File Number(s): 20329 of 2014 Judgment The application 1A large Eucalypt grows in the small rear garden of a Rozelle property, close to the rear northern boundary. The tree's broad crown overhangs several adjoining properties. 2Ms Keir ("the applicant") owns the property to the north of the tree, sharing the common boundary next to which the tree grows. At its base the stem of the tree is only a metre or so from the wall of Ms Keir's dwelling. Limbs are close to parts of her roof, but of even greater concern to Ms Keir is the tree's history of dropping limbs. She says these are likely to cause damage to her dwelling, or injury to herself or anyone beneath the tree's crown. The tree's stem pushes against the boundary fence. Ms Keir alleges the tree's stem has damaged the fence and that roots are damaging her property. Ms Keir has applied under Part 2 of the Trees (Disputes Between Neighbours) Act 2006 ("the Trees Act") seeking orders for the tree to be removed and for the fence to be repaired. 3When the application was filed with the Court, the property on which the tree grows was owned by Mr and Ms Olson (the first and second respondents). By the time of the hearing, Ms Howse (the third respondent, but for simplicity within this judgment referred to as "the respondent") had purchased the property and had been joined as a party to the proceedings. 4Ms Howse also has concerns regarding the tree. At the time of the onsite hearing she had lodged an application for tree removal with Leichhardt Council under Council's Tree Preservation Order. In order to avoid interfering with that process, the matter was heard onsite and then stood over until a later date to allow Council's assessment to be completed. The matter was then finalised by telephone mention on 23 October. The tree 5The tree is a large Eucalypt with a broadly spreading canopy. Its stem diameter is approximately 70 cm. The base of the stem is almost against the fence at ground level and is approximately one metre from Ms Keir's dwelling. The tree's canopy is dense and healthy. The single stem forks at approximately 4 metres. All major forks appear sound with no signs of included bark, swelling or other defects. Minor deadwood is present throughout the crown. 6Despite the lack of major defects, the tree has a history of frequent limb failures. These have been mostly live limbs, up to 200 mm diameter or more. They have fallen into gardens and onto the applicant's roof. Damage 7The timber paling fence on the common boundary of the applicant's and respondent's properties is out of alignment. This appears to be due to a combination of the fence's age and the effect of buttress root growth at its base. The fence is somewhat dilapidated. 8The narrow path between the fence and the applicant's dwelling is made of loose pavers. Near the tree pavers have been lifted, most likely by root growth, and one is cracked. Ms Keir is concerned that pavers supporting her nearby hot water service will also be lifted and that this may damage the hot water service. She is also concerned about possible damage to her dwelling and the potential for roots to damage her sewer pipes. A letter from Aqua-Eze Plumbing states that tree roots have been removed from the sewer previously and suggests that roots may cause further damage. 9Ms Keir says her gutters are blocked by debris from the tree and that sap from the tree damages her rear deck. Injury 10During recent years, several limbs have fallen into the applicant's garden, the respondent's garden and another neighbouring garden. Limbs have been of a size that may cause significant injury. Does the Court have jurisdiction? 11Firstly, any damage to the applicant's gutters and deck caused by small debris and sap falling from the tree is relatively minor. Although it would enliven the Court's jurisdiction at s 10(2)(a) of the Trees Act, the principle first set out in Barker v Kyriakides [2007] NSWLEC 292 would apply here, and orders would not be made on this basis. In essence, that principle states that a reasonable amount of maintenance is expected of those who enjoy the benefits of urban trees. The usual dropping of leaves, flowers, fruit, seeds or small elements of deadwood from urban trees does not warrant intervention by the Court. 12The tree has pushed against the boundary fence at its base, but the fence's poor condition is also due in no small way to its age. It would be feasible to replace the fence in such a way that tree removal would not be required. The issue of the fence may enliven the Court's jurisdiction, but again, on a discretionary basis, this issue alone would not warrant orders for tree removal. 13Similarly, the extent of damage to paving is minor and is at least partly due to the age and construction of the paving. Again, on a discretionary basis, the damaged pavers would not warrant orders from the Court. 14There is no evidence of damage to Ms Keir's hot water service. There is also no evidence that would satisfy me, to the extent required by the Trees Act, that roots are likely in the near future to cause damage to Ms Keir's dwelling, sewer pipes or hot water service. 15Turning now to the issue of injury, the Trees Act at s 10(2)(b) requires that, before making orders, the Court be satisfied that "the tree concerned is likely to cause injury to any person." "Any person" does not have to be on the applicant's property. 16Having viewed photographs of fallen limbs and observed the sites in the tree's crown from which they have broken away, I am concerned that large limbs are falling from this tree at frequent intervals without any apparent defects present. This is not to say some pathogen, such as wood-decaying fungus, is not present at these failure points, only that there appears to be no external sign that would indicate such defects. This makes it difficult to order selective pruning that might remove the most hazardous limbs and minimise the ongoing risk. I have reached the conclusion that, despite the tree's contribution to public amenity and to landscape and environmental values, removal is the most appropriate option. Council's Tree Preservation Order 17Between the onsite hearing and the subsequent telephone mention, Leichhardt Council refused permission for tree removal. According to Ms Howse this was on the basis of the tree's contribution to the landscape and environment. 18The Court is required to consider Council's consent requirements at s 12(b) of the Trees Act. The tree makes a valuable contribution to local landscape character and to environmental values. Leichhardt Council filed relevant material with the Court, including: a 2004 permit to prune the tree; the Tree Management Controls from Leichhardt's Development Control Plan 2013; Leichhardt's Tree Management Technical Manual for Trees on Private Property ("the Technical Manual"); and the Leichhardt Local Environmental Plan 2013 ("the LEP"). 19The Tree Management Controls indicate that a permit is required to prune or remove the tree. The Technical Manual explains various assessment methodologies for trees causing damage to public property, for trees causing damage to private property, for trees posing a threat to human life and for trees in a state of decline. Where a tree poses a threat to human life or property, as this one does, the recommended methodology is for Visual Tree Assessment that demonstrates and substantiates that "the tree is a threat to human life or property and that removal is the only option." Bringing my own experience and expertise to this situation, it is my view that this is the case: removal is the only option. 20Schedule 5 of the LEP lists properties with "Environmental Heritage". Neither the applicant's property nor the respondent's is included in this list. Replanting 21The Court has jurisdiction at s 9 of the Trees Act to require that a new tree be planted and maintained to maturity. Considering the contribution of the tree to be removed, this is appropriate. A locally indigenous species would contribute to local biodiversity. Considering the size of the respondent's garden, a Water Gum or another tree of a similar size would be suitable. Conclusions 22The tree poses a risk of injury that can, in my view, only be sufficiently mitigated by tree removal. Further limb failures are likely, even with selective pruning throughout the crown. This is despite the tree's contribution to public amenity and the local landscape. 23The fence along the common boundary of the applicant's and respondent's properties will need to be replaced once the tree is removed. Following this, the respondent is to replace the tree with an appropriate species. Orders 24Orders are only for removal of the tree and replacement of the fence along the common boundary. The tree and her share of the fence are both part of the property purchased by Ms Howse. There are no orders for compensation for damage to Ms Keir's property that might have occurred earlier, when the respondent's property was owned by the Olsons, the first and second respondents. Therefore there is no further requirement for them to be involved. The "respondent" in the orders refers to Ms Howse. 25Therefore, the orders of the court are: (1)The application is upheld. (2)Within 30 days of the date of these orders the respondent is to engage and pay for a suitably qualified arborist (minimum AQF level 3) to remove the Eucalypt next to her rear boundary fence to ground level and to grind sufficient of the stump to allow the fence to be reconstructed on the boundary line. These works must be done in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry. (3)The respondent is to give at least 7 days' notice of the works to the applicant. (4)During reasonable hours, the applicant is to allow all access required for the tree to be removed. (5)Within 30 days of the date of these orders the respondent and the applicant are each to obtain two quotes for removal and replacement of the timber paling fence along the common boundary of their properties. The replacement fence is to be a paling fence of similar height and type to the existing fence. The respondent and applicant are each to allow any access required by contractors for quoting during reasonable hours of the day. (6)Within 60 days of the date of these orders the respondent and applicant together are to select the cheapest quote, or another if they are agreed on one, and engage the contractor to carry out the quoted works. The respondent and the applicant are each to pay 50% of the cost of the fencing works. (7)Within 6 months of the date of these orders the respondent is to plant a Water Gum (Tristaniopsis laurina) or another locally indigenous species that grows to at least 10 metres in height at maturity. The tree is to be planted at least one metre from any boundary and is to be maintained to maturity. D Galwey 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: 02 December 2014