Land and Environment Court New South Wales Medium Neutral Citation: Francisco Palacios v Margaritte Joanne Colefax [2018] NSWLEC 1062 Hearing dates: 19 December 2017 Date of orders: 13 February 2018 Decision date: 13 February 2018 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is upheld. See orders at paragraph 26. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage to property; whether branch failure was a result of development impacts; orders for pruning. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Black v Johnson (No 2) [2007] NSWLEC 513 Category: Principal judgment Parties: Francisco Palacios (Applicant) Margaritte Colefax (Respondent) Representation: Mr Patrick Pagin, Solicitor Navado Lawyers (Applicant) Mr William Blunt, Agent (Respondent) File Number(s): 317801 of 2017 Publication restriction: No Judgment Background 1. In 2014 Hornsby Shire Council ('Council') approved the subdivision of a large residential lot in the Sydney suburb of Wahroonga into five lots. Ms Colefax ('the respondent') and Mr Blunt live at an adjoining property in a house surrounded by a garden of trees and shrubs, including mature native trees. Subdivision plans showed, on the new residential allotment next to theirs, a building envelope and tree protection zones (TPZs) of trees on their property. One of their trees, a mature Sydney Blue Gum (Eucalyptus saligna) ('the tree'), stands close to the common boundary so its TPZ extended well into the new allotment next to theirs. The Palacios family purchased this new allotment, on which to build their family home. 2. Council approved the Palacioses' plans for their dwelling, with the building envelope closer to the common boundary than had been shown on subdivision plans, resulting in greater encroachment into the tree's TPZ. Conditions on Council's development application approval ('DA') included measures for protecting the tree. 3. During construction of the Palacioses' dwelling Ms Colefax and Mr Blunt observed what they say were many breaches of conditions for protecting their tree. They corresponded frequently with the Palacioses and with Council, alerting them to these breaches. At completion of construction Council issued final certification indicating that conditions of the permit had been satisfied. Ms Colefax and Mr Blunt say the permit conditions were not satisfied, and this has led to the tree's decline and subsequent limb failures. 4. In May 2016 Mr Blunt applied to Council for permission to remove the tree. In his view it had become hazardous as a direct result of the neighbouring works. Council refused permission to remove the tree. Mr Blunt appealed this decision. Council refused the appeal so Mr Blunt lodged an appeal with the Land and Environment Court. He engaged the services of consulting arborist Catriona Mackenzie. A joint report prepared by Ms Mackenzie and Council's arborist, Robert Woodward, described the tree as healthy and apparently stable. They agreed that the tree showed no ill-effects from the adjacent development, although also agreed that such impacts may take several years to become apparent. Mr Blunt discontinued the proceedings in the Land and Environment Court. 5. The Palacioses' double-storey dwelling has a tiled roof. The tree's crown extends well beyond the common boundary, overhanging a large portion of the dwelling. In July 2017 a branch fell from the tree, breaking roof tiles on the Palacioses' dwelling. Ms Colefax and Mr Blunt engaged an arborist to remove any other hazardous limbs. The arborist removed limbs only over their property, not the Palacioses'. The application 1. Mr Palacios ('the applicant') applied to the Court seeking orders pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 ('the Trees Act'). Orders sought include: pruning of the tree's overhanging branches at the respondent's expense; annual inspection and pruning of the tree at the respondent's expense; and reimbursement of repair costs for any future damage. I asked Mr Pagin, representing the applicant, where I might find jurisdiction in the Trees Act to allow the last of those orders. How could the Court order compensation for future damage, without knowing its extent or cause? Subsequently, the final order sought in the application was not pressed. 2. Leave was granted for Mr Blunt to be Ms Colefax's agent in these proceedings. Framework of the Trees Act 1. If I am satisfied that the tree has caused, is causing, or is likely in the near future to cause damage to the applicant's property, or is likely to injure anyone (s 10(2) of the Trees Act) I have the jurisdiction to make appropriate orders (s 9) after considering a range of matters set out at s 12. 2. It is not the Court's role to determine whether or not DA conditions were satisfied during construction, even those in regard to protection of the tree. Having said that, any matters that may have contributed to damage must of course be considered, including any actions, or omissions, of the applicant and the respondent. The respondent has extensively documented alleged breaches of tree protection conditions, and resulting correspondence with the applicant and Council. I have reviewed that documentation, and listened to Mr Blunt's submissions on this up to a point, but they are of limited relevance here. The question is not whether the applicant satisfied the permit conditions, which would have no bearing on the jurisdictional test at s 10(2) of the Trees Act. Rather, in light of ss 12 (h) and (i), when considering suitable orders I must consider whether works on the applicant's property, permitted or otherwise, have contributed to any damage caused by the tree, or any risk of injury arising from the tree. The applicant's submissions 1. The applicant says the situation speaks for itself – a limb has fallen from the respondent's tree, damaging their roof tiles. Mr Palacios says they should be compensated for the damage by the tree's owner, and the tree should be pruned now, and then annually, to prevent further damage. He provided a quote of $957 for roof tile repair (Exhibit B, Annexure C). He referred to a photograph from Mr Hills' report (Exhibit B, Annexure D, Figure 3) showing the tree's crown with red arrows indicating limbs that should be removed. 2. During submissions Mr Pagin clarified that the applicant no longer wished to press for compensation for future damage. 3. Mr Pagin opined that most issues raised by the respondent are largely irrelevant in this matter, but he addressed those issues as he saw necessary. He argued that works on the applicant's property were approved by Council and received final certification. He says the works were typical for a residential development in such a location: the dwelling's location provided for the optimal arrangement of open space; grade changes were a result of terracing typically required on a sloping site; and building materials used are normal for this style of dwelling. The respondent's submissions 1. Ms Colefax argued that the tree was healthy prior to the neighbouring development, and that works within the TPZ of this tree led to its decline and caused the branch to fail. Mr Blunt pointed out trees closer to the boundary that are now clearly stressed, and said this was caused by the development. Mr Blunt argued that development impacts directly caused the branch to fail, or led to stress that attracted insects to the tree, with insect damage contributing to failure of the branch. He argued that any works required, whether they be pruning, annual inspection or tree removal, should therefore be at the applicant's expense. 2. Mr Blunt cited Black v Johnson (No 2) [2007] NSWLEC 513, arguing that the applicant chose to locate their dwelling beneath the tree, and selected tiles as the roofing material. According to Mr Blunt, had the dwelling been located further from the tree, perhaps within the original building envelope shown in the plan of subdivision, and had a different roofing material been chosen, the failed branch may not have caused such damage. Arboricultural evidence 1. Mr Ian Hills was engaged by the applicant; Ms Catriona Mackenzie by the respondent. The two arborists agreed on most things. They agreed that the tree appears vigorous and that there are no obvious signs so far of adverse impacts caused by the development. They agreed that such development impacts can take years to become apparent. They agreed that the occasional shedding of branches is typical for such a tree, and that they could not be sure of any link between construction impacts and the branch failing. They identified the presence of dead branches in the tree's crown. They agreed that removal of dead branches and some weight reduction pruning would be sufficient to deal with risk, and also that any such reduction pruning should be minimal. Jurisdiction 1. I am satisfied that the respondent's tree has caused damage to the applicant's property when the branch fell and broke roof tiles. According to s 10(2) of the Trees Act, this enlivens the Court's jurisdiction and orders can be made. Consideration of matters at s 12 1. This Sydney Blue Gum is a mature native tree that contributes to the local ecosystem and biodiversity. It has significant value to public amenity and to the landscape and character of the respondent's property. 2. As already demonstrated by Council's refusal of an application to remove the tree, interference with the tree would normally require Council's permission. 3. Bringing my own expertise to the matter, I accept that significant changes have occurred within the tree's TPZ. As both arborists suggest, impacts of this may take several years to become apparent. I note that TPZs used on most construction plans use a calculation based on a model of typical root growth. This is useful, as it would be impractical to carry out an extensive root-mapping exercise on each individual tree within and adjacent to a development site. AS4970 Protection of trees on development sites provides such a formula for calculating TPZs. For most trees, this TPZ will protect sufficient roots for the tree to remain viable, although some roots might be lost beyond the TPZ. Conversely, it does not mean that any works within a part of the TPZ will definitely damage roots, for roots might not be growing in that part. Therefore, without further evidence of damage, the presence of works within the TPZ does not, by itself, demonstrate damage to the tree. 4. It is possible that construction impacts have resulted in some stress in the tree. Many other environmental factors may also cause stress, including drought, waterlogging or pest and disease infestation. To attribute some responsibility for the limb failure to the Palacioses' construction, I would need to have some knowledge of its cause. The adduced evidence does not demonstrate that one series of events has caused the other. Furthermore, the arborists agree that the tree appears vigorous with no obvious signs of construction impacts. I note, at this point, that although I cannot be satisfied on the balance of probabilities that the works have adversely affected the tree, I am not making a finding that there are no impacts. 5. Considering the foregoing, I am not satisfied that the location of the applicant's dwelling, and works to construct it, led to the branch falling onto their roof. The damage is some distance from the boundary. Had the dwelling been located a few more metres from that boundary (but lot size would prevent it being located other than under the tree's crown) it appears that damage still would have resulted. Were the dwelling further from the boundary, much of the Palacioses' private open space would necessarily have been beneath the tree. Their private open space, now on the other side of their dwelling, includes a play area for their children. Orders for pruning are justified whether limbs might fall on the dwelling or into private open space. Compensation 1. With Black v Johnson (No 2) in mind, however, I consider it reasonable that knowledge of the tree's presence above the dwelling to be built might have suggested an alternative roofing material. Other site conditions such as soil type, winds, sunlight direction, water flow above- and below-ground, are all given consideration during the design stage. Trees do not recognise property boundaries. This tree's crown was above the building envelope. The arborists say it has no apparent defective branches, but occasional limb-shed is to be expected. 2. The respondent could not predict that a branch would fall, or which branch might fall. Short of removing every branch above the Palacioses' dwelling, an action for which there was no justification, Ms Colefax and Mr Blunt could not reasonably have prevented the limb falling onto the Palacioses' roof. I therefore see no reason to transfer the cost of repairing the broken roof tiles to the respondent, and will not make any order for compensation. Future damage 1. The arborists agree on the extent of pruning required to reduce the risk of further damage from limb-shed. I accept their recommendations and will order pruning. Such pruning will deal with the current situation. I see no need to make orders for ongoing pruning – the situation (a tree in an urban environment overhanging a neighbouring dwelling) is not unusual in any way. Both parties can take appropriate measures to monitor the tree and take appropriate actions necessary for risk mitigation. 2. Regarding future compensation, s 9 of the Trees Act does not permit the Court to order unspecified amounts of compensation for damage that has not occurred, but may occur in future. I cannot be satisfied that the fallen limb was a direct result of construction impacts on the tree, so it would be impossible to find, in the present, such a nexus between construction impacts and future limb failures. Orders 1. As a result of the above, the orders of the Court are: 1. Within 60 days of the date of these orders the respondent is to engage and pay for a suitably qualified arborist (minimum AQF level 3), with appropriate insurances, to: 1. remove deadwood greater than 50 mm diameter from the tree's crown; 2. reduce limbs over the applicant's dwelling, especially those extending farthest from the tree's stem, removing no more than 10% of total crown mass; and 3. to remove any damaged or crossing branches. 1. The works are 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. 2. The respondent is to give the applicant 7 days' notice of these works. 3. The applicant is to allow any access required for the works during reasonable hours of the day. ____________________________ 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: 15 February 2018