Land and Environment Court New South Wales Medium Neutral Citation: McClintock & Anor v Lah & Anor [2017] NSWLEC 1561 Hearing dates: 06 October 2017 Date of orders: 06 October 2017 Decision date: 06 October 2017 Jurisdiction: Class 2 Before: Fakes AC Decision: Pruning and compensation ordered see [28] Catchwords: TREES [NEIGHBOURS] :Damage to property, potential injury; compensation Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Hinde v Anderson & anor [2009] NSWLEC 1148 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Texts Cited: Nil Category: Principal judgment Parties: Daniel and Megan McClintock (Applicants) Cheol & In Sook Lah (Respondents) Representation: Applicants: Mr A Robertson (Solicitor) Respondents: Ms D Lah (Agent) Solicitors: Applicants: Robertson Saxton Osborne File Number(s): 2017/186993 Publication restriction: No JUDGMENT 1. COMMISSIONER: The applicants have applied under s 7, Part 2 of the Trees (Disputes Between Neighbours) Act 2006 ('Trees Act') for the following orders at the respondents' expense: * Biannual monitoring and removal of dead and diseased wood from a Eucalyptus pilularis (Blackbutt) growing on the respondents' property; * Remediation of the soil surrounding the Blackbutt; * Compensation/reimbursement of insurance excess, arborist's report, filing fee and legal fees. 1. The orders are sought on the applicants' contention that branches falling from the tree have caused, and could continue to cause, damage to their property, specifically the roof of their dwelling, and could cause injury to anyone on their property. 2. In regards to the last proposed order, Commissioners of the Court do not have the jurisdiction to order payment of legal costs, costs of expert reports, application fees and the like. If sought, claims for these costs must be made by a Notice of Motion, which is heard and determined by a Judge or Registrar of the Court. 3. The respondents' position is that the tree is healthy and they have given the applicants' permission to prune the tree at their expense. They question whether the applicants' evidence proves that the damage to the applicants' roof was caused by branches from the Blackbutt; as such, the respondents reject the claim for reimbursement of the insurance excess and other costs. Relevant background 1. The applicants purchased their Castle Hill property in 2011. In late 2013, the applicants raised some concerns about branches falling onto their property from trees growing on the respondents' land; in particular from the Blackbutt and an Angophora costata (Sydney Red Gum). According to the applicants' evidence (Exhibit B), the first respondent was shown some of the branches that had fallen from the trees and which had allegedly caused damage to some external lighting and landscaping. The applicants suggested that the respondents engage an arborist to assess and prune the trees. 2. On or about 15 March 2014, during a storm, a dead branch fell from the Blackbutt onto the applicants' roof. The branch pierced the tiles and the ceiling below. The State Emergency Services were contacted and immediately after, the respondents were notified of the damage. The resulting claim required the applicants to pay $500 excess on their insurance. Photographs of the branch through the tile and ceiling are included in Exhibit B. 3. Following this incident there was further correspondence between the parties. Amongst other things the applicants requested that the respondents have the tree assessed and pruned by an arborist. The first respondent reiterated his position that the applicants had his permission to prune the tree at their own expense and that he valued the trees on his property for the shade and amenity they afforded his property. The applicants also sought mediation with the respondents through the Community Justice Centres however there was no response from the respondents to two letters from the Department of Attorney General & Justice. 4. In June 2014, the Angophora growing at the front of the respondents' property suffered a co-dominant stem failure. This tree has been reduced to a tall stump and is not part of this application however it is discussed in the parties' evidence. 5. During a storm on 4 June 2015 another branch fell from the Blackbutt onto the applicants' roof. This cracked tiles and allowed the ingress of water. This necessitated another claim on the applicants' insurance and the payment of another $500.00 excess. 6. In July 2016 the applicants engaged Jim McArdle, Consulting Arborist, to inspect the Blackbutt and prepare a report (included in Exhibit B). Mr McArdle undertook a Tree Risk Assessment and determined it to have a rating of '4C' = High risk: 4 = area in constant use, C = Somewhat likely failure potential (possible and likely to occur at some time). He recommends a range of pruning measures, monitoring, and remedial works to improve soil fertility to increase the tree's vigour. 7. In September 2016 the applicants' solicitor wrote to the respondents advising them of the damage to date and the applicants' actions in attempting to resolve the matter. The respondents were provided with a copy of the McArdle Report. The letter included a claim for reimbursement for the insurance excess and half the cost of the arborist's report. The respondents replied with an offer to split the costs of removing or pruning the tree. This initiated a number of counter offers from both parties. 8. As no agreement could be reached, the Class 2 application was filed with the court on 22 June 2017 and the matter heard on site on 6 October 2017. Jurisdiction 1. Section 7 of the Trees Act enables an owner or occupier of land to apply to the Court for an order to remedy, restrain or prevent damage to property on an applicant's land, or to prevent injury to any person, as a consequence of a tree to which the Trees Act applies that is situated wholly or principally on adjoining land. 2. I am satisfied that the Blackbutt is a tree to which the Trees Act applies. It is situated on the respondents' land very close to the common boundary. 3. In accordance with the jurisdictional test in s 10(1) of the Trees Act, I am satisfied that the applicants have made a reasonable effort to reach agreement with the respondents. 4. 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…". The hearing 1. The tree was inspected from the respondents' property. There was no need to go onto the applicants' land as the area potentially affected by the tree was clearly visible from the more elevated position provided by the respondents' backyard. 2. Although Mr McArdle was on hand to provide assistance, I undertook my own visual inspection of the tree; binoculars were used to view the upper portions of the canopy. With the arboricultural expertise I bring to the Court, I observed the tree to be a relatively healthy specimen, consistent with the species, its age and the likely changes in its environment as a consequence of residential development. Mr McArdle concurred with my opinion that the amount of dead wood within the tree is within normal and expected limits. There are three relatively small cavities in the main trunk; one of which appears to be proximate to a crossing and rubbing branch. While Mr McArdle states that he saw no previous pruning cuts, there is evidence that one relatively large branch was removed from the side of the tree closest to the respondents' dwelling, possibly when their house was constructed eight years ago. There is good occlusion of that wound. However, it was confirmed on site that apart from this branch, the respondents have not had the tree pruned during the time they have owned their property. 3. A significant proportion of the canopy overhangs the roof of the applicants' dwelling. Areas where tiles have been replaced are clearly visible; however there is no evidence that all replacements were the result of damage by falling branches. Findings 1. I am satisfied to the extent required by s 10(2) that dead branches falling from the respondents' Blackbutt have caused damage to the applicants' roof on two occasions. While there is no photograph of a branch on the roof after the June 2015 event, in my opinion, the damage to the tiles and the ceiling is consistent with an impact from a branch. On both occasions, the branches have almost certainly come from the Blackbutt as this tree is directly above the damaged sections of roof and larger dead branches tend to drop rather than be blown over larger distances (which would be the case if the branches had come from other trees in the vicinity). 2. Although the quantity of dead wood within the tree is within normal and expected limits, it is of a size that when it falls, as it inevitably will, it could cause further damage to property on the applicants' land or injury to anyone who may be in the vicinity at the time. Orders will be made for its removal. 3. I saw nothing in the condition of the tree that would lead me to conclude that removal of the entire tree is warranted. As discussed during the hearing, should the respondents wish to remove the tree, they can apply to the local council for consent. However, that is a matter for them as no Court orders will be made for its removal as a consequence of these proceedings. 4. The applicants have sought biannual inspection and maintenance, as suggested by Mr McArdle in his report. This was raised during the hearing. Mr McArdle was unable to satisfy me that the tree is in such a state of decline that twice yearly inspection and pruning is necessary. In my opinion, biennial removal of dead and declining branches would be sufficient to maintain the tree in a safe condition. Should this prove insufficient in the longer term and there is fresh evidence to support further intervention with the tree, a second application could be made (see Hinde v Anderson & anor [2009] NSWLEC 1148). During the routine removal of dead wood it would be usual for an arborist to draw their client's attention to any particular problems/ defects in a tree observed as they moved through the tree. 5. I am also satisfied that the crossing branch should be removed at its base (back to the main scaffold branch from which it arises). This is to limit any further damage to the trunk. 6. The area around the base of the tree, on the respondents' side of the fence, is turfed, and while there is likely to have been past disturbance from the installation of a sewer, I saw nothing in the condition of the surrounding soil that would lead me to conclude that an order for soil remediation is warranted. 7. I am also satisfied that the respondents have been on notice about the condition of the Blackbutt since 2013 but have refused to take any action to have the dead wood removed, and until relatively recently, have resisted attempts to resolve the matter. Orders will be made for the reimbursement of the $1000.00 spent by the applicants on their insurance excess. Orders 1. With the benefit of the site inspection, and after considering the evidence and the parties' submissions, the Orders of the Court are: 1. 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 declining branches down to 30mm in diameter at their base from all parts of the Blackbutt which overhang the applicants' property to a distance of 3m inside the respondents' property. In addition, during the initial pruning, the lower crossing branch arising from the northern scaffold is to be removed back to that scaffold. 2. The works in (1) are to be completed within 40 days of the date of these orders. 3. The works in (1) are to be carried out in accordance with the general and specific provisions of AS4373:2007 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry or its equivalent safety standard. 4. Should it be required, the applicants and or their tenants are to provide all reasonable access on reasonable notice for the purpose of quoting and the safe and efficient carrying out of the works in (1). 5. The removal of dead and declining branches in Order (1) is to be carried out every two years within two weeks either side of the anniversary of the initial 2017 pruning until such time as the tree is removed. Orders (3) and (4) apply to order (5). 6. Within 30 days of the date of these orders, the respondents are to reimburse the applicants the sum of $1000. ______________________ 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: 06 October 2017