Choi v Buining & anor [2016] NSWLEC 1024

Land and Environment Court New South Wales

Medium Neutral Citation: Choi v Buining & anor [2016] NSWLEC 1024 Hearing dates: 29 January 2016 Date of orders: 29 January 2016 Decision date: 29 January 2016 Jurisdiction: Class 2 Before: Fakes C Decision: See paragraph [29] Catchwords: TREES [NEIGHBOURS] Potential damage to property or injury; removal sought - pruning ordered Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Rural Fires Act 1997 Cases Cited: Freeman v Dillon [2012] NSWLEC 1057 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: Hee Soo Choi (Applicant) Robert and Lorna Buining (Respondents) Representation: Applicant: Mr J Lee (Solicitor) Respondents: Mr A Kaylinger (Barrister)

Solicitors: Applicant: Joun Lawyers Respondents: Baldwin Oates & Tidbury File Number(s): 20927 of 2015

Judgment 1. COMMISSIONER: The applicant resides in a very leafy area of Turramurra. The immediate locality is low density residential development characterised by relatively large blocks on which there are many mature and established trees. Many of the trees are likely to be remnants of the original tall forest which once covered the area. 2. The applicant has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the removal of two trees growing on the respondents' property. 3. Tree 1 is a Syncarpia glomulifera (Turpentine); Tree 2 is an Angophora costata (Sydney Red Gum). The trees are located at the rear of the respondent's battle-axe property adjacent to the respondent's north-eastern boundary, which is the common boundary between the parties' properties. 4. While the trees straddle the common boundary, a survey obtained by the applicant shows the base of the trees to be substantially on the respondents' land. I am satisfied that the trees are trees to which the Act applies. 5. Apart from the removal of the trees, the applicant is also seeking an order for the costs associated with the making of the application. 6. In this regard, Commissioners of the Court do not have the jurisdiction to order payment of legal costs, costs of expert reports, or application fees. Should either party wish to claim such costs, a Notice of Motion must be made which is then heard by a Registrar or Judge of the Land and Environment Court. 7. The application claim form (Exhibit A) also includes a quote for the replacement of the dividing fence between the parties' properties however no details are included in the claim form as to why this is claimed. During the hearing it was disclosed that this quote was included on the assumption that the trees would be removed. Neither party pressed this element of the claim. 8. In the application claim form the applicant states that the likelihood of the trees causing significant damage to her property is significant, especially as the trees are "precariously" close to the external walls of her dwelling and overhang the eaves. Apart from falling branches, the applicant contends that there is a risk that Tree 2 may fall onto her house and apart from causing damage, could also cause serious injury to anyone on her property at the time. 9. Elsewhere in the claim form are letters written by the applicant to the respondents citing plumbing problems with roots growing underneath the house and leakage through the roof as a result of branch damage during windy weather. As the parties' properties are situated in a fire-prone area, the applicant also raises the 10/50 Vegetation Code under the Rural Fires Act 1997. This permits an owner of a tree to remove trees in certain circumstances without the consent of council. 10. The application claim form does not include any specific details/ evidence of the alleged damage. 11. In reply to one of the applicant's letters, the respondents state that they have owned their land since 1969 and purchased it because of the trees. They have lived there since 1979. The letter states that in the late 70's or early 80's the previous owner of the applicant's property built a new home behind the original timber cottage; this is now the applicant's dwelling. It is implied that the trees were there when the house was built; observations made on site confirm that the trees, in particular Tree 1, would have been well-established. 12. The respondents do not want to remove the trees but are prepared to undertake some pruning. 13. In applications under Part 2, the key jurisdictional test is found in s 10(2). This states: (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. The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. At [62] Craig J states in part "something more than a theoretical possibility is required in order to engage the power under [the Trees] Act…". 2. The applicant is concerned, in part, about future damage or injury. In a guidance decision published in Yang v Scerri [2007] NSWLEC 592, as a rule of thumb, the 'near future' for damage is deemed to be a period of 12 months from the date of the determination. In regards to injury, the Court considers the risk posed by a tree in the foreseeable future based on the characteristics of the tree/s, any history of previous failures and the circumstances of the site apparent at the time of the hearing. 3. The applicant engaged an arborist, Mr Glenn Bird, to undertake an assessment of the trees and prepare a report. Mr Bird's report, dated 31 March 2015, is included in the claim form; he did not attend the hearing. 4. In regards to Tree 1 – the Turpentine, Mr Bird states that the tree comprises three stems, is mature, about 20m tall, is in good health and condition with minimal dead wood. It is located about 1m from the applicant's dwelling; there is no deflection of paving between the tree and the house and no signs of deformation of the dwelling's footings or brickwork. He recommends the tree be retained but monitored for dead wood. Mr Bird also seems to suggest that removal of overhanging branches would be permitted under Ku-ring-gai Council's Tree Preservation Order but would have to be carried out in accordance with the crown reduction criteria in AS4373 – 2007 Pruning of Amenity Trees [the Australian Standard]. 5. Mr Bird states that Tree 2 – the Angophora, is in good health and condition and is also within 1m of the applicant's dwelling. He estimates that the tree had about 40-50% of its root crown removed during the excavation for the construction of the applicant's dwelling. He notes one large, vertical root below the trunk. On this basis, and for reasons outlined in his report, he concludes that there is an increased risk of windthrow which, in his opinion, could be managed by crown reduction, however, in order to remove the risk he recommends removal of the tree. 6. The respondents engaged their own arborist, Mr Bradley Magus, to inspect the trees and prepare a report (Exhibit 1). The report is dated 11 December 2015. Mr Magus did not attend the hearing. Mr Magus concurs with Mr Bird's assessment of the health and condition of both trees. He recommends 1-2 yearly inspections of Tree 1 and the removal of dead wood. Apart from the one vertical root identified by Mr Bird, Mr Magus notes two other first order or structural roots to the south-east of the trunk of Tree 2. Whilst noting the earlier excavation for the dwelling, he opines that the soil remains undisturbed on the respondents' side and would provide enough stability for the root plate. Despite this he recommends crown reduction by up to a maximum of 15%. Mr Magus notes hairline cracks in some pavers adjoining Tree 2. 7. With the arboricultural expertise I bring to the Court, I concur with the arborists' assessments of the health and condition of the trees. However, in applying s 10(2), I do not agree with their findings in regards to Tree2. 8. During the hearing, the applicant, through her solicitor, stated that the roots of Tree 1 had caused problems with the sewer. No evidence was adduced to demonstrate this. I agree with the arborists that there is no abnormal displacement of the pavers at the base of Tree 1 and no signs of any cracking or displacement of the brickwork of the applicant's dwelling. Part of the canopy overhangs the applicant's dwelling and there is some dead wood within the canopy. As would be expected in such an area, small twigs and leaves were seen on the roof of the applicant's dwelling. 9. I also agree with the arborists that removal of Tree 1 is not warranted. However, the production of dead wood and its eventual failure is predictable. Given the proximity of the tree to the applicant's dwelling, I am satisfied on the basis of the observations made on the day of the hearing, and on the basis of the arborist's reports, that damage could arise in the near future as a consequence of the failure of dead wood. 10. Therefore as s 10(2) is satisfied for Tree 1, orders will be made for the biennial removal of dead wood from the tree at the respondents' expense. 11. In considering Tree 2, there is no evidence to indicate the foreseeable failure of the whole of the tree. There are three obvious large structural woody roots visible from the applicant's side of the fence. There are no signs of any cracking or heaving of the soil at the base of the tree or any other signs which may indicate instability. The bias of the trunk is away from the applicant's property and the canopy is very open. The excavation occurred over thirty years ago and the exposed soil profile appears very stable. The area has been subjected to many severe storms during this period. 12. There is some dead wood and some declining branches in the portion of the canopy which overhangs the applicant's dwelling. I am satisfied that these elements meet the 'near future' test in s 10(2). I do not agree with the arborists' recommendations for crown reduction; that is, the removal of otherwise healthy branches to reduce wind loading. Again, in applying my arboricultural expertise, the architecture and spacings of the branches of the Angophora are such that crown reduction would be practically difficult, and in my opinion, cause unnecessary stress to an otherwise very healthy tree with no obvious structural defects. 13. That said, orders will be made for the removal of dead wood and some declining branches (shown in the photographs attached to this judgment). No orders will be made for the removal of this tree. 14. In regards to the applicant's concerns about the fire risk associated with the trees, I note the finding in Freeman v Dillon [2012] NSWLEC 1057 in [86] which states in part: …I am not satisfied that general bushfire risk posed by trees is within the jurisdiction of the Court under the Trees Act. A tree in itself does not start a fire…a person lights a fire, lightning strike, sparks from machinery etc may start a fire. However, if a bushfire damaged the trees and caused part or all of the tree to fail and cause damage to an applicant's property or injury to any person, then this may engage a consideration of s 12(h)(i) and s12 (i)(i), that is "anything, other than the tree, that has contributed, or is contributing, to any such damage/ injury or likelihood of damage/ injury". As discussed by Preston CJ in Robson at [210] this: "would also allow consideration of extraordinary natural events, acts of God, and their contribution to the damage or the likelihood of damage to property or the likelihood of injury to any person". 1. Therefore, no orders can be made for any interference with the trees on the basis of fire.