Land and Environment Court New South Wales Medium Neutral Citation: Rogerson v Dean & anor [2017] NSWLEC 1209 Hearing dates: 19 April 2017 Date of orders: 24 April 2017 Decision date: 24 April 2017 Jurisdiction: Class 2 Before: Fakes AC Decision: Pruning ordered see [21] Catchwords: TREES [NEIGHBOURS] Damage, potential injury; sudden limb failure Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Huggett & anor v Burrowes [2015] NSWLEC 1057 Category: Principal judgment Parties: Susan Rogerson (Applicant) John and Judith Dean (Respondents) Representation: Applicant: Susan Rogerson (Litigant in person) Respondents: John and Judith Dean (Litigants in person) File Number(s): 20292 of 2017 judgment 1. COMMISSIONER: The applicant has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal or pruning of a Corymbia citriodora (Lemon-scented Gum) growing at the rear of the adjoining property. The orders are sought on the basis that the tree has caused, and could in the near future cause damage to the applicant's property or could cause injury to any person. Given previous failures of large green branches from the tree onto her property, the applicant is particularly concerned for the safety of her family and visitors. 2. The respondents, who planted the tree about 35 years ago, value the tree for the shade and amenity it affords their property and for the wildlife it supports. They oppose removal of the tree but would agree to pruning on the proviso that any pruning of the tree will not lead to further failures of the tree. Background 1. According to the respondents, within a year of the applicant purchasing her property, they gave permission for her to remove two large low limbs that were overhanging the applicant's backyard. This was carried out by the applicant in March 2013 under consent granted by Mosman Council. 2. The applicant contends that on 8 December 2012, 5 February 2014, 5 March 2014 and 24 March 2014, large green branches fell from the tree in calm weather. Photographs in the applicant's claim form (Exhibit A) show the fallen limbs. On all but the event on 24 March 2014, the photographs show the failure of a single branch each about 100mm in diameter and perhaps 3-5m long onto the applicant's back lawn. The limb that failed on 24 March 2014 was substantially larger; this branch fell across the first floor balcony adjoining the applicant's primary living area. This limb failure occurred less than two hours after an arborist had visited the site for the purpose of preparing a quote for further pruning in accordance with a council permit issued on 12 March 2014. The branch failure caused minor damage to the balcony railing and cracked a tile. Photographs in the applicant's supplementary evidence (Exhibit B) show smaller green branches and dead wood which had fallen from the tree on 10 December 2012, 23 January 2013, 25 April 2015, 9 June 2015 and 26 November 2015. 3. After the branch failure on 24 March 2014, the respondents engaged Mr Chris Carne of Tree Technics to remove the debris and prepare a report. His report is dated 15 April 2014. Mr Carne states that Corymbia citriodora is known for its propensity to shed large limbs without warning. He states that the failure of the branch was unpredictable and generally referred to as 'summer branch drop', the cause of which is not clear. Mr Carne opines that the tree provides great amenity and would be a food source for local fauna. Mr Carne states that the applicant has a justified fear of the tree for two reasons: multiple events [presumably earlier failures], and the inability to predict whether other limbs may fail. He suggests two options for its management: * Removal of about 20% of the foliage including removal of torn limbs over the applicant's roof and end weight reduction of branches over the applicant's property (although this can be difficult given the form of the canopy); and * Removal of the tree and its replacement with a local species such as Angophora costata. 1. Mr Carne prefers the first option but states that the second option cannot be ruled out. 2. In December 2015, the applicant engaged Mr Jack Williams of Priority Tree Services to inspect the tree, undertake a risk assessment, and prepare a report. Mr Williams was provided with photographs of previous failures. In his report dated 15 December 2015 Mr Williams states that the tree displays good health and vigour with no signs of dieback or decline. He notes some dead wood and sites of previous pruning cuts and branch failures. In paraphrasing Mr William's discussion in s 7 of his report, he opines that the greatest risk arises from the potential failure of exposed long reaching branches over the applicant's property. He considers the risk to be moderate for the dwelling and for people using the lawn and the balcony. Mr Williams provides three options for mitigating the risk: * Tree removal. * Selective branch removal and reduction pruning [erroneously described as 'remedial' pruning] and removal of dead wood down to 25mm in diameter. A moderate residual risk would remain for the lawn and balcony. The lack of pruning options is noted. * Retain and monitor the tree. Moderate residual risk. 1. In December 2015 the respondents engaged an arborist to remove dead wood from the tree. 2. In April 2017 the respondents engaged Mr Carne to inspect the tree and provide a "quantified tree risk assessment" and report. Mr Carne attended the hearing during which it was confirmed that this report was sought only on the basis of sudden dieback of parts of the canopy, in particular the upper central portion of the tree and a significant portion of the canopy on a major branch extending over the applicant's garage and partly over the respondents' property. The report, such as it is, gives the risk level as 'tolerable' and recommends monitoring the portions of the tree. He confirmed that he was not asked to readdress the issue of branch failures. 3. Apart from the limb failure, the applicant contends that roots from the tree have caused cracking of a brick retaining wall directly adjacent to the trunk. She is also concerned about potential damage to the antenna, roof, skylights, paving, balcony, roof terrace above the garage, clothesline and dividing fence. During the hearing, the applicant stated that in strong winds, the branches hit the aerial. In the applicant's supplementary evidence, issues with roots blocking the sewer are also raised. 4. The applicant cites my decision in Huggett & anor v Burrowes [2015] NSWLEC 1057 to support her argument for removing the tree. The Huggett case involved multiple failures of a Lemon-scented Gum, determined to be summer branch drop, onto the applicants' property. More than half the canopy overhung the applicants' property. In the circumstances of that matter I ordered the removal of the tree. In her written submissions, the applicant cites other judgments to support other elements of her claim. 5. As mentioned above, the respondents state they are not opposed to pruning as long as it does not predispose other branches to failure. During the hearing they stated that no such failures have occurred onto their property in the last 35 years. They are concerned that the 2014 series of live branch failures onto the applicant's land was a possible consequence of the increased exposure of that part of the tree as a result of the removal of the two large branches in March 2013. 6. The parties agree that the tree has good amenity value. The applicant's position is that the risks outweigh its amenity value. 7. In regards to the sewer, the respondents stated that negotiations were underway to have the sewer lined but that it is possible that roots from other trees have grown into the sewer. 8. 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. The alleged root damage 1. While there is a fine crack in the mortar joints of the brickwork near the trunk of the tree that in itself is insufficient evidence to engage the Court's jurisdiction. There has been no excavation of the area behind the wall which may identify the cause of the cracking or identify a means of rectification. Mere proximity is not proof of a nexus between the tree and the damage. Similarly, while roots have been found in the sewer, the origin of the roots is unknown. Therefore these elements of the application are dismissed. The canopy 1. There is clear evidence that limbs have fallen from this tree and have caused damage to the applicant's property, albeit minor. This is sufficient to satisfy s 10(2) of the Trees Act and engage the Court's jurisdiction to consider what, if any, orders should be made. 2. While I am satisfied that there have been several unpredictable branch failures in relatively quick succession in early 2014, there have been no significant failures since. There is no evidence that these failures were connected to the previous limb removal; it could well be circumstantial. What is more apparent is the thinning and dying back of several sections of the canopy. With the arboricultural expertise I bring to the court, these are predictable areas of failure. Using the photographs in the Carne and Williams reports, the tree appears to have thinned quite considerably since those inspections and the time of the hearing. I agree with the arborists that the architecture of the tree is such that crown reduction without compromising the health or structure of the tree is difficult. 3. I accept that the applicant is somewhat fearful of further failures, however, at this stage I am not fully satisfied that the tree should be removed. Similarly, the pruning option in Mr Williams' report results in the same level of risk as leaving it as it is. While on the face of it this seems inconsistent with the findings in Huggett, the circumstances of that matter were different in terms of what remained over the respondent's property. Orders will be made for the removal of all dead and declining branches 40mm or more at their base plus providing a clearance of at least 2m from the applicant's aerial. The purpose of this is to prevent damage to the applicant's property and to limit any potential injury to occupants of both properties as a consequence of the failure of these elements of the tree. In addition, the arborist will be given discretion to reduce any of the branches overhanging the applicant's property if they strictly meet the requirements of cl. 7.3.2 Reduction pruning in AS4373: 2007 Pruning of Amenity Trees, are less than 100mm in diameter, and their removal will not comprise the health of the tree. That is, sufficient foliage must be retained to ensure the normal functioning of the branch. 4. Should any other failures of green branches of 100mm or more in diameter occur, the applicant should immediately notify the respondents and if necessary make a second application to the court. I am satisfied that the respondents are on notice to monitor changes in the health of the tree and to take appropriate action in a timely manner. 5. Therefore as a consequence of these findings, the Orders of the Court are: 1. The application to remove the tree is dismissed. 2. Within 30 days of the date of these orders, the respondents are to engage and pay for an arborist with a minimum qualification in arboriculture of AQF level 3 and with appropriate insurance cover to remove all dead and dying branches with a diameter of 40mm or more at the base from the tree. In addition, a clearance of 2m from the applicant's aerial is to be established. The arborist is given discretion to reduce any of the branches overhanging the applicant's property if they strictly meet the requirements of cl. 7.3.2 Reduction pruning in AS4373: 2007 Pruning of Amenity Trees, are less than 100mm in diameter, and their removal will not compromise the health of the tree. 3. The work in (2) is to be carried out in accordance with AS4373:2007 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry or its equivalent. 4. Should it be required, the applicant is to provide all reasonable access on reasonable notice for the quoting and safe and efficient carrying out of the works in (2). _________________________ Judy Fakes 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: 26 April 2017