Land and Environment Court New South Wales Medium Neutral Citation: Micevski v Atkins [2018] NSWLEC 1298 Hearing dates: 13 June 2018 Date of orders: 13 June 2018 Decision date: 13 June 2018 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is upheld. See orders at [32]. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – damage caused by tree – which elements of damage warrant compensation – actions taken by the tree owner – actions not taken – further inspection of tree Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW) Category: Principal judgment Parties: Milutin Micevski (Applicant) Anthony Atkins (First Respondent) Debra Atkins (Second Respondent) Representation: M Micevski, litigant in person (Applicant) A Atkins, litigant in person (Respondents) File Number(s): 2018/23789 Publication restriction: No Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. Background 1. A large Forest Red Gum (Eucalyptus tereticornis) ('the tree') stands in the rear part of Debra and Anthony Atkins' ('the respondents') Casula property. It is a mature native tree, part of the local ecosystem. Its tall crown can be seen from the street and from other vantage points in the neighbourhood. 2. Since October 2014, when a large limb fell from the tree, six large limbs in all have fallen onto, or partly onto, the neighbouring property, causing some damage described further below. The most recent limb failure, in February 2017, also damaged a Jacaranda on the Atkins' property. Mr Micevski, the Atkins' neighbour, has applied to the Court, pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) ('the Trees Act'), seeking orders for the Forest Red Gum, as well as the Jacaranda, to be maintained, and for compensation for damage to his property. 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 cause injury to any person, (s 10(2) of the Trees Act), I have jurisdiction to make appropriate orders (s 9) after considering a range of matters set out at s 12. The tree has caused damage 1. There is no dispute that the tree has caused damage. Mr Micevski's application includes photographs taken soon after each of the six large limb failures that occurred: 1. 10 October 2014 2. 2 November 2014 3. 29 January 2015 4. 11 January 2017 5. 24 January 2017 6. 24 February 2017 1. The tree is situated near the rear of the Atkins' property, well away from dwellings. When limbs have failed they have damaged fences, garden structures and some plants. 2. After each limb failure, Mr Micevski notified the Atkins and requested the fallen limb be cleaned up and any damage be repaired. Mr Atkins then cleaned up and removed the fallen limb and sometimes repaired damage. 3. The first limb failure damaged Mr Micevski's timber paling fence along his rear boundary. Mr Atkins repaired the damaged section of the fence. 4. Subsequent limb failures damaged panels of the steel panel fence along the common boundary, some treated pine steps providing access downslope to Mr Micevski's rear fence, a 'rose-gate', shrubs and hedge plants, as well as the Atkins' own Jacaranda. Mr Atkins replaced damaged steel fence panels on the common boundary, except for one panel that was damaged by the fifth limb failure and remains that way. The Atkins have not repaired or replaced Mr Micevski's 'rose-gate', timber steps or any plants. The applicant claims compensation 1. Mr Micevski seeks compensation for: * A section of timber paling fence on his rear boundary ($1,112 quoted in Exhibit B) * One panel of steel panel fence ($360 quoted in Exhibit B) * Treated pine timber steps and landing providing access to his rear fence ($1,350 quoted in Exhibit D) * A metal 'rose-gate' ($100, estimated) * Hedge plants and some shrubs ($600, estimated) * Pruning of the Jacaranda ($400, estimated) * Removing damaged items ($600, estimated) * Miscellaneous expenses ($500, estimated) * Cost of an arborist's inspection and report ($1,650 invoiced in Exhibit D) 1. Although Mr Atkins repaired the damaged section of the timber paling fence on Mr Micevski's rear boundary, the repairs are not to Mr Micevski's satisfaction. He says that a 5.2-metre section of the fence needs replacing. He obtained two quotes for replacing this section of the fence. I have included the amount from the first quote in the list above. 2. Mr Micevski claims some shrubs, including a rose bush, were damaged by the tree's limbs, as too were some hedge plants. 3. Mr Micevski obtained quotes for repairing or replacing the damaged steel fence panel and the timber steps. The costs of other items, such as plants, have been estimated. He has allowed additional sums for removing damaged items such as the steps, and for unforeseen work. 4. Mr Micevski says all these elements of damage were caused by the tree, so the Atkins should bear the costs of any remedy. He wants only like-for-like remedy, not any improvement to his property. The respondents dispute the compensation claim 1. The Atkins say they have always responded quickly when made aware of limbs falling from their tree and any resulting damage. They repaired Mr Micevski's timber paling fence soon after the first limb fell. They repaired panels of the steel fence on the common boundary, except for the panel damaged most recently. They propose paying half of the cost of replacing this panel. 2. The Atkins say they are willing to repair the timber steps, and argue the quoted amount is unreasonably expensive. They are willing to pay Mr Micevski the $100 he claims for the rose-gate. They say hedge plants that were damaged are regrowing. There is no evidence of other plants being damaged. They see no need for any other compensation. The Jacaranda is their tree, but Mr Micevski can prune overhanging branches should he wish. Only limited compensation is required 1. I find that the Atkins should not pay compensation for Mr Micevski's timber paling fence, which was damaged by the first limb failure in October 2014. The tree is part of the local bushland landscape and is well away from dwellings and high-use areas on both properties. Prior to this first limb failure, the Atkins had no reason to distrust the tree, to suspect it might be hazardous, or to look at it more closely. Despite the presence of structural defects, which I will discuss later, they have no expertise relating to trees, and had no awareness of what would occur. Mr Micevski had not raised any concerns with them regarding the tree. For these reasons, any repair costs for the fence will not be shifted onto the Atkins. Mr Atkins has repaired the fence to a standard where it appears to perform its function adequately. It is of a lower aesthetic quality than the original fence was, or a replacement would be, but given its position at the back of the property, downslope and well away from accessible garden areas, separating the property from a bushland reserve, I find its appearance is not significant. 2. The single steel fence panel that remains damaged on the common boundary is a result of the fifth occurrence of limb failure from the tree. By this time, the Atkins were well aware of the tree's history of limb failure over more than two years. Although they had cleaned up fallen limbs on Mr Micevski's property, they had taken no measures to prevent further damage. They had sought no professional advice on the tree's condition, causes of limb failure or what might be needed to prevent limbs failing in future. I find it is reasonable to expect that they should have sought such advice, and that had they acted on it the fence might not have been damaged. They shall bear the cost of replacing this fence panel by organising and paying for the works, rather than compensating Mr Micevski. 3. The treated pine steps remain on the property, slightly downslope of their original position. When viewed during the hearing, it appeared that a stringer (supporting beam) on only one side of the steps was damaged. The steps sit on the ground, providing some access to the fence at the bottom of the slope. Considering their location and use, they could be repaired and put back in position with apparently minimal effort. I find that they do not require the replacement for which the $1,350 quote was provided. Mr Atkins has offered to assist Mr Micevski with any repairs. No compensation for the steps will be ordered. 4. The Atkins have agreed to compensate Mr Micevski for the rose-gate according to his claim. I will order this accordingly. 5. Mr Micevski's hedge plants are regrowing and will shortly reach the size and appearance they had prior to damage. Mr Micevski provided no evidence of damage to other plants. No compensation will be ordered for replacing damaged plants. 6. Mr Micevski can prune overhanging limbs of the Jacaranda, providing he gains any permission required from his local council. He has incurred no cost or loss pertaining to this that requires compensation. 7. Considering the findings in the preceding paragraphs, there is no justification for ordering compensation for removing any damaged property or for unforeseen expenses. 8. Commissioners of the Court do not have the power to award costs (the final item listed above at [9]). That would require the filing of a Notice of Motion to be heard by the Registrar or a Judge of the Court. No orders are required for the Jacaranda 1. The Atkins' Jacaranda overhangs Mr Micevski's property. A broken limb remains near its top, above Mr Micevski's land, but is still attached. Despite this, it appears unlikely to cause damage or injury in near future. The Atkins are at least now aware of the broken branch and can take any action necessary when they see fit. The Forest Red Gum 1. Mr Micevski engaged Mark Hartley, a consulting arborist, to assess and report on his neighbour's tree. Mr Hartley defined his brief at paragraph 7 of his report as follows. 7. Based on the above assumptions [that the tree's limbs failed and caused damage on at least six occasions] I have been asked to visit the site, to inspect the tree. Based on that inspection, I have been asked to a. Undertake a risk assessment of the tree as it relates to my client's property. b. Make any suggestions relating to the management of the tree. c. Report on my findings. 1. Mr Hartley discussed at length the level of risk arising from the tree's remaining branches. He observed that only a few smaller branches remain above Mr Micevski's property, so any further large limb failures are likely to fall into the Atkins' property rather than Mr Micevski's. Mr Hartley used two tree risk assessment methods to consider the level of risk resulting from falling branches. He concluded that the level of risk is so low that the cost of interfering with the tree to reduce that risk any further, when compared with any small benefits to be gained by this, could not be justified. 2. I accept Mr Hartley's conclusions regarding limb failures. However, bringing my own arboricultural expertise and experience to the onsite hearing, I observed other significant defects not mentioned in Mr Hartley's report. The first is perhaps an understandable omission. A long vertical wound extends up the stem from near the ground. Inside this wound, between healthy wood and bark on either side, the wood is decayed. The wound has been there for many years and the decay is relatively advanced. It is likely that the decay spreads through much of the heartwood, although to what extent I could not determine through my limited visual assessment. It seems likely that this central column of decay extends upwards in the stem for the length of the wound, which is several metres. The tree is to the south of Mr Micevski's property, so it is not surprising that this wound, on the stem's southern side, was not observed by Mr Hartley when inspecting the tree from Mr Micevski's property. 3. The other major defect, observable from both properties, is a bifurcation of the stem. At about six metres the single lower stem divides into two. For approximately three metres above this, the two stems remain relatively vertical and grow against each other, with included bark between them. Some swelling alongside this zone of included bark, most pronounced on the northern stem, indicates a reaction to increased loads that result from this structural defect. The tree is more than 25 metres tall with considerable weight in its upper crown. 4. The decay column in the stem reaches the bifurcated zone with included bark. The presence of these two defects together, with so much weight above, increases the likelihood that one of the stems will fail in the foreseeable future. Failure of the northern stem would result in it falling across the entire width of Mr Micevski's property. 5. Without more informed knowledge of the extent of decay in its stem, I am reluctant to make orders for either pruning or removing the tree. I will therefore order that the respondents pay for an experienced arborist to carry out a more detailed assessment of the tree, including an aerial (climbing) inspection, sounding of the area around the bifurcation, and any further testing deemed necessary; and to prepare a written report with findings, risk assessment and clear recommendations. If works are recommended in the report, the respondents are to apply to Liverpool City Council ('Council') for any permission required for those works. They are then to engage an arborist to carry all works permitted by Council. This is the course of action that the Atkins could reasonably have been expected to take. 6. Following the first three limb failures occurring in a period of less than four months, these are the steps that might reasonably have been expected of the Atkins. Orders 1. As a result of the foregoing, the Court orders that: 1. Within 30 days of the date of these orders, the respondents are to pay the applicant the sum of $100. 2. Within 7 days of receiving $100 from the respondents, the applicant is to provide them with a written receipt. 3. Within 60 days of the date of these orders the respondents are to replace the damaged steel fence panel with a panel that matches the remaining fence, and remove and dispose of the damaged panel. 4. Within 60 days of the date of these orders the respondents are to engage a suitably qualified and experienced arborist (minimum AQF level 5 with climbing experience) to carry out a full assessment of the tree, including an aerial (climbing) inspection, sounding of the area around the bifurcation, and any follow-up testing deemed necessary during the initial inspection; and provide to the respondents a written report with findings, risk assessment discussion and clear recommendations. 5. Within 14 days of obtaining the arborist's report the respondents are to provide the applicant with a copy of the report. 6. Within 14 days of receiving the arborist's report the respondents are to apply to Liverpool City Council for permission for any works recommended in the report. 7. Within 7 days of receiving Council's determination, the respondents are to provide the applicant with a copy of the determination. 8. Within 30 days of receiving Council's determination, the respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with appropriate insurances to carry out all works permitted by Council. All works are to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry and, if pruning is part of the works, with AS4373 Pruning of amenity trees. 9. On reasonable notice, the applicant is to allow all access required for the works to be carried out 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: 18 June 2018