Land and Environment Court New South Wales Medium Neutral Citation: Rorie v Abacherli [2017] NSWLEC 1004 Hearing dates: 19 December 2016 Date of orders: 11 January 2017 Decision date: 03 January 2017 Jurisdiction: Class 2 Before: Durland AC Decision: The application is upheld Catchwords: Trees (Disputes Between Neighbours); injury, damage, jurisdictional tests, deadwood, removal Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Category: Principal judgment Parties: Stephen Rorie (Applicant) Hildegarde Abacherli (Respondent) Representation: S Rorie, Litigant in person (Applicant) R Nolan, Tutor (Respondent) J Taylor, Solicitor (Respondent) File Number(s): 16/297857 Judgment 1. This is an application pursuant to section 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) concerning three trees located at the rear of the respondent's property in the Sydney suburb of Strathfield. 2. The respondent is 90 years old and incapacitated due to a stroke and dementia. The respondent's daughter is acting as her Tutor and appeared for the respondent at the hearing. 3. The applicant contends that the fence at the rear of his property, common with respondent's rear boundary, is being damaged by one of the trees and that the tree has moved and therefore might fall and cause injury to a person or damage to property. He is also concerned that a second tree is not stable and may fall and cause damage to his property or injury to a person. 4. The application also includes a third tree, currently reduced to a stump, that the applicant contends is impacting a side fence on the respondent's property. The fence adjacent to the stump is not a common boundary fence with the applicant's property. 5. The trees subject to the application are referred to as Chamaecyparis lawsoniana (Lawson Cypress) in the documentation filed by the respondent's Tutor and as Cupressus torulosa (Bhutan Cypress) in the report prepared by The Arborist Network (Report no. CD1746) and dated 7 December 2016 prepared for the respondent. All five trees located adjacent to the fence along the rear of the respondent's property are Cupressus torulosa (Bhutan Cypress). 6. The tree report prepared by an AQF Level 5 arborist for the respondent includes a statement that the author has read and has abided by the Expert Witness Code of Conduct as contained in Schedule 7 of the Uniform Civil Procedure Rule 2005 and that the report has been prepared with the intent to comply with section 5 of Schedule 7. 7. The applicant is seeking orders that three of the trees be removed, that they be replaced with more suitable trees and that the damaged fence be repaired. 8. The respondent is seeking alternate orders that the applicant be restrained from damaging the trees subject to the order and any other vegetation growing on the respondent's property. 9. The provisions of section 10(2) of the Trees Act require that I be satisfied that one or more of four tests are met with respect to each tree subject to the application, before I have jurisdiction to consider the application. 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 a person? Background 1. The property where the trees are located was purchased by the respondent and her husband in 1976 and the respondent's Tutor contends that at the time the Cypress trees along the rear boundary were already mature. Images have been provided to demonstrate that the trees were well established around the time of the purchase. 2. The respondent's Tutor contends that until around three years ago the row of conifers was dense and provided a good screen between the subject sites and that over the past few years branches on the applicant's side of the trees have been removed creating much more open canopies and diminishing the screening. 3. The applicant purchased his property a few years ago and since that time has removed mature climbing plants such as Bougainvillea and Ivy from the tree canopies. The respondent's Tutor agreed that there had been climbing plants growing through the canopies. 4. The applicant has documented that he has also at various times removed branches from the side of the trees facing his property giving the reason that it was to prevent possible injury. At the hearing the applicant stated that all of the branches that had been removed were dead or appeared dead. 5. The respondent pointed to some branch stubs that could be seen from the applicant side of the fence that looked to have been recently created and not deadwood. 6. All parties agreed that the remaining vegetation is less dense than it was a few years ago. 7. The applicant contends that in 2013 he went to the respondent's property and spoke with the respondent's husband (now deceased) and discussed the replacement of the old rear boundary fence. The applicant has included a letter (dated 13 November 2013) in his application that refers to two discussions in early and mid 2013 and references concerns that the fence was in disrepair caused in his opinion by pressure from the trees along the rear boundary. The letter also included a statement that as he was not able to reach an agreement with the respondent he intended to removed and replace the fence without seeking any costs. 8. The respondent's Tutor acknowledges that she has located a copy of the letter dated 13 November 2013 in her father's personal effects. 9. The application includes a second letter to the 'Homeowner' at the respondent's address and is dated 4 April 2016. The letter refers to the applicant's concerns that the new fence is being impacted by one of the trees in the corner (T1) and that he is concerned that eventually other sections of the fence will also be impacted by the trees. The letter also includes a request that permission be sought from the Council for the removal of the trees. The applicant contends in the letter that he had an opinion from an arborist who said that the trees are in poor condition, the trees at each end were dangerous and that all of the trees should be removed. 10. The respondent's Tutor contends that she has not been able to find a copy of the letter dated 4 April 2016 in her father's personal effects or in the respondent's personal papers. 11. The applicant contends that the new fence was erected 100mm further into his property from where the old fence was sited to be clear of the tree trunks (in particular T1) along the boundary. The respondent's Tutor was not able to comment on whether the new fence was erected 100 clear of the trunk of T1 but did point out the remains of the old fence posts which were approx 200mm closer to the respondent's property. 12. There is no doubt that the new fence has been erected closer to the applicants property than where the old fence was located however it is difficult to be certain of what space was left between the trunk of T1 and the new fence. Tree 1 1. T1 is the most northerly of the five Cupressus torulosa (Bhutan Cypress) located along the boundary fence that separates the respondent's and applicant's rear properties. 2. The applicant contends that the tree has moved over the past few years and caused minor damage to the fence adjacent. He is also concerned that the trunk of the tree will continue to cause damage to the timber fence and that at some stage the tree will fail and cause significant damage to his property or injury to a person. 3. The trunk is currently in contact with the top of the fence and the top of the fence is on a slight lean from vertical adjacent to the tree. When viewed from the side it is clear that the corner post has moved a few centimetres towards the applicants property causing the second paling to split vertically with one portion moving with the post and the remainder remaining upright and attached to the side fence. The remainder of the fence looks to be on a vertical alignment. 4. The respondent's Tutor pointed to another section of the fence that had come apart slightly and pointed out that there is not a tree close to that section. The respondent's Tutor suggested that the quality of the construction or materials may not have been adequate and that is why the fence is out of vertical alignment adjacent to T1. 5. The tree report contains some discussion in relation to the possible cause of the current damage to the fence adjacent to T1 and includes a comment that 'given the age of the fence, the extent of movement in the fence appears to be inconsistent with the normal increase in trunk diameter for the species.' I agree that there is very little, if any, likelihood that the fence has moved adjacent to T1 as a result of an increase in girth over the time since the new fence has been erected. 6. The arborist's report contains the suggestions that possible causes for the movement in the fence are: 1. 'the fence was pushing against the tree such that the tree was moved from its normal position, or 2. the fence was originally constructed with a slight lean at this point, or 3. this tree was actively failing, or 4. some other explanation not apparent to the author.' 1. Given the size of the T1, and the likely corresponding weight, I think it highly unlikely that it was possible to construct the fence in an upright position using the timber fence to change the natural resting position of the tree. 2. The current configuration of the displaced fence adjacent to T1 and discussed at (24) that was sighted at the hearing suggests that the fence was originally erected in an upright position. 3. There was no observable ground heaving or slumping to suggest that the tree is failing however as it is not likely that the fence could have been erected in a vertical alignment with the tree in the current position I think it highly likely that the tree, or part of the tree, has moved towards the fence. 4. I am satisfied that T1 has caused minor damage to the rear timber fence and consider it highly likely that T1 has moved slightly towards the applicant's property. I am satisfied that the requirements at s10 (2) of the Act have been met and that the jurisdiction of the Court is enlivened in regards to T1. 5. Should T1 continue to move towards the applicant's property it is likely that it could cause more substantial damage to property or injury to a person using the open space below. 6. As previously discussed at (20) the applicant suggested that when the fence was replaced a few years ago that there was a space of approximately 100mm between the trunk and the fence. The applicant stated that the fence was positioned so that no damage would be done as the tree increased in size. Even without any knowledge that the tree may have been moving it would have been appropriate that the new fence was erected to accommodate the existing trees. There was no evidence provided in relation to how appropriate the setback between the trunk and the fence was at the time the fence was erected or if other actions should have been taken to allow for future growth or normal movement of T1. Tree 2 1. T2 is a Cupressus torulosa (Bhutan Cypress) located at the southern end of the rear boundary fence that separates the respondent's and applicant's rear properties. 2. The applicant is concerned that T2 will fall and cause damage to his property or injury to a person. The reason that the applicant believes that the tree is likely to fall is because it has a distinct lean. 3. T2 has had a partial failure at some time in the past. Images included in the respondent's documentation show this tree several decades ago with a tie attached to a post in the corner of the yard. The respondent's daughter confirmed that the tree had been secured to the post at the time as it had started to lean towards the adjacent tree. 4. Whilst the lower section of the trunk has a distinct lean towards the tree adjacent the top section of the tree has self corrected over time and is in a more upright configuration. 5. As noted in the arborist's report filed by the respondent there is no movement such as heaving or cracking evident at ground level nor is there any evidence in the crowns of the trees such as separation of branches that would be likely to occur if the canopy from T2 was falling and actively pushing against the adjacent tree. 6. I agree with the statement in the report that there is no evidence that the tree is currently actively failing and that there are no structural defects that can be observed in the tree that would suggest it is likely to fall in the near future. 7. With the expertise that I bring to the court I determine that the current shape of the trunk and upper canopy suggests that the root plate stabilised a long time ago. 8. There is no suggestion that T2 is causing damage to the rear boundary fence. 9. There was no evidence provided nor any observations made to confirm the contention that T2 is likely to fall and cause damage to property or injury to a person. The requirements under s10 (2) of the Act have not been met and therefore no orders can be made in regard to T2. Tree 3 1. T3 is a stump less than 2 metres in height that consists of the lower section of an old timber post with the remains of a woody climber wrapped around it. 2. T3 is leaning towards the side boundary fence of the respondent's property however is not in contact with that fence. The side boundary fence (not common with the applicant's property) is falling over however the cause of the lean is not clear. The fence is very old and is covered in woody Ivy. 3. At the hearing the applicant indicated that he did not wish to press the application in regards to T3. 4. T3 is not causing or contributing to any damage to the applicants property nor was there anything evidenced or sighted that would indicate that T3 is likely to cause damage to the applicant's property or injury to a person in the near future. 5. The requirements under s10 (2) of the Act have not been met and therefore no orders can be made in regard to T3. Considerations before making Orders 1. Before making any Orders the Court must consider the matters under section 12 of the Act. The relevant matters are : 1. T1 is located on the respondents' property close to the common boundary with the applicants' property. 2. The fence adjacent to T1 was erected as directed by the applicant only and it is not clear that adequate modifications in design or construction materials were made to accommodate the future growth or normal movement of T1. For the aforementioned reason and apart from the likelihood that the tree has since moved I consider that it would not be reasonable to expect the respondent to contribute to the cost of the minor repairs to the fence adjacent T1. 3. I am not satisfied that further pruning of T1 would adequately reduce the likelihood of more damage to the fence or the likelihood of the tree moving substantially further and as a result causing more significant property damage or injury to a person. 4. Given the proximity of the tree adjacent to T1 and the other surrounding vegetation and structures I consider that it may be challenging to establish another tree in the same location although there is nothing to stop the respondent from planting a tree in the general vicinity should they wish to do so. For this reason it is considered that it would be unreasonable that there be a requirement to plant in this situation. Should the respondent wish to replant they should arrange for the stump to be ground to a minimum of 500mm below ground level. 1. On the basis of the foregoing, the Orders of the Court are: 1. The application to remove T2 and T3 is dismissed. 2. Within 60 days of the date of this order the respondent is to engage and pay for an AQF Level 3 arborist with appropriate insurances to remove T1 to a height of no greater than 300mm above ground level. 3. All work shall be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry. 4. The applicant is to provide reasonable access (if required) for the purpose of quoting and for the safe and efficient carrying out of the works in order (2). The applicant must provide the respondent with contact details and work is to be carried out during reasonable hours of the day. L Durland 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: 11 January 2017