Land and Environment Court New South Wales Medium Neutral Citation: Dara v Mayadunne [2019] NSWLEC 1217 Hearing dates: 4 April 2019 Date of orders: 29 May 2019 Decision date: 29 May 2019 Jurisdiction: Class 2 Before: Douglas AC Decision: The Court orders: (1) The canopies of the two Eucalyptus saligna (Sydney Blue Gum) trees overhanging the applicant's property, including the nature strip in front of his property, shall be pruned annually to remove all deadwood above 20mm diameter at the branch collar. This shall initially be completed within eight weeks of the date of these orders, and during July or August of each subsequent year. The Monstera deliciosa, which is climbing up the lower trunk of Tree 1, shall also be removed in conjunction with the initial pruning. The work is to comply with AS4373-2007 Pruning of amenity trees. (2) The expense for this annual dead-wooding shall be shared equally between the parties. Each year, the applicant and the respondent may each procure up to two quotes for the work specified in Order 1. If they cannot agree on an arborist, the least expensive of the quotes is to be selected, provided that they meet all requirements of Orders 1 and 3. Within 14 days of receipt of a copy of a paid invoice for these works, Mr Dara is to reimburse Mr and Mrs Mayadunne 50% of the total of the invoice. (3) All works shall be undertaken by AQF level 3 qualified arborists, with appropriate Public Liability insurance, and in compliance with Safe Work Australia 'Guide to managing risks of tree trimming and removal work', 2016. If required for any of these works, as is likely, access is to be provided by the applicant, subject to notice of at least 48 hours, and entry only during reasonable working hours. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – apprehension of damage to property and of injury – tree removal sought Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Black v Johnson (No 2) [2007] NSWLEC 513 Hinde v Anderson & anor [2009] NSWLEC 1148 Yang v Scerri [2007] NSWLEC 592 Texts Cited: AS4373-2007 Pruning of amenity trees Hornsby Development Control Plan 2013 Safe Work Australia 'Guide to managing risks of tree trimming and removal work', 2016 Category: Principal judgment Parties: Venkata Kiran Kumar Dara (Applicant) Upali Mayadunne (First Respondent) Sujatha Mayadunne (Second Respondent) Representation: Solicitors: A Pickup, Local Government Legal, Hornsby Shire Council (Interested party) Other: V Dara, litigant in person (Applicant) U and S Mayadunne, litigants in person (Respondents) File Number(s): 2018/383564 Publication restriction: No Judgment 1. COMMISSIONER: This is an application, pursuant to s 7 of Part 2 of the Trees (Disputes between Neighbours) Act 2006 (the Act) by Mr Dara of Wahroonga, involving apprehension of damage and injury relating to two Eucalyptus saligna (Sydney Blue Gums) located in the adjacent property to the south. Introduction 1. Mr Dara has owned his property for 14 years. He subdivided his land, and built a new house about three years ago, on the southern block closest to the respondents' property, and to the trees. His driveway is located within a few metres of the common boundary, which runs approximately west to east. The respondents are Mr and Mrs Mayadunne, and both their and Mr Dara's houses have a near westerly aspect. 2. Tree 1 is located about one metre from the common boundary and about six metres from the front boundary of the Mayadunne's land. Based on recent inspection data from Mr Harrigan, Hornsby Shire Council's Tree Management Officer, it is 22 metres tall, with a canopy spread of about 15 metres, and trunk diameter at breast height (DBH) of 900mm. It is only in fair condition with a live crown foliage density of about 70% of normal for its late mature life cycle stage. This tree contains deadwood up to around 60mm at the collars, and some canopy dieback, which is generally indicative of root damage, or dysfunction. 3. In his application, Mr Dara notes this tree as diseased, and that various arborists and 'tree removalists' had agreed. Though no evidence was provided to substantiate this diagnosis, Mr Dara noted the unusual flaky bark and markings on the trunk, particularly on its northern side. 4. Tree 2 is located about two metres from the shared side boundary and just inside the front boundary, and its canopy overhangs the front of both properties, the road and the nature strip. It is reported to be 25 metres tall, with the same canopy spread and DBH as Tree 1, and appears to be in good condition, with well-structured branch junctions. Tree 2 exhibits only minor soil build up on its eastern side, and its natural trunk base flare is evident on the western side, where roots grow under the nature strip towards the adjacent road. This tree also contains deadwood, with at least one large branch overhanging the applicant's driveway and front yard, and others over the nature strip. 5. This part of Wahroonga is characterised by disturbed, but ecologically valuable Blue Gum High Forest community, with a moderately dense canopy cover of Sydney Blue Gums and some Blackbutts, growing to an average height of about 25 metres. Prudent, ongoing tree maintenance must be a normal expectation in this context. The hearing 1. Mr Dara and Mr and Mrs Mayadunne were litigants in person, while Hornsby Shire Council (Council) was represented, as an interested party, by Mr Pickup from Local Government Legal, and Mr Harrigan. 2. The trees were easily accessed and were inspected initially in the respondents' property, and then from the applicant's. Mr and Mrs Mayadunne submitted that excavation for Mr Dara's house and driveway extended to near the common boundary. Based on the final levels, the excavation is likely to have been around one metre deep. 3. The base of Tree 1 exhibits signs of soil build up, likely associated with the establishment of a flat lawn area which encompasses it, though the respondents advised that the level has not changed over the eight years that they have owned the property. There were indications of termite mudding near the base of the tree, but neither Mr Harrigan, nor I, saw signs of current activity. 4. Mr Dara noted the maintenance impost resulting from debris from sticks and leaves falling on his house and garage roofs, and driveway. The applicant's case 1. The claim with respect to these trees relates to risk of injury and likelihood of damage in the near future due to dead wood falling from the overhanging canopies. 2. Mr Dara seek the following orders: 1. Immediate assessment of condition of the gum tree that is unhealthy (T1) by a qualified arborist or suitably qualified professional and taking the remedial action as laid out in the assessment. 2. Carrying out immediate and regular pruning of dry branches of both gum trees (T1, T2) to reduce the risk of damage to property and/or risk of injury. 3. Undertaking responsibility if any damage to his property or injury to any person within the premises of our house is caused by trees referred in this application (T1, T2). The respondent's case 1. Mr and Mrs Mayadunne have co-operated with Mr Dara and responded to his concerns by applying to Council for removal of Tree 1. This application was refused, but deadwood removal was recommended. Jurisdictional requirements 1. With respect to s 7, an owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land. 2. The Court is obliged to consider a number of matters pursuant to s 10 of the Act. 3. I am satisfied that there has been an attempt by Mr Dara to reach agreement with the owner of the land on which the trees are situated, as required by s 10(1). Evidence of unsuccessful attempts to organise mediation was provided, but copies of email correspondence between the parties, and the respondents' real estate agent (agent), provide evidence of ongoing negotiations. Mr Dara's correspondence focused on removal of the trees, particularly Tree 1. 4. The next major test that is posed, by s 10(2)(a) of the Act, is that the Court must be satisfied that the tree concerned has caused, is causing or is likely, in the near future, to cause damage to the applicant's property or, as per s 10(2)(b), is likely to cause injury to any person. 5. The trees do contain a moderate level of deadwood, the larger pieces of which were about four metres long and about 60 mm at their junctions. It is distributed in the canopies overhanging both properties. 6. Using the guidance decision published in Yang v Scerri [2007] NSWLEC 592 (Yang) with respect to injury, the Court considers the risk posed by trees based on the characteristics of the tree/s, any history of previous failures and the circumstances of the site apparent at the time of the hearing. 7. Given that branches of the trees overhang parts of the applicant's house, driveway and front yard, the evidence that branches have dropped fairly frequently, and the potential serious consequences of impact by these branches, the jurisdiction of the Act is enlivened with respect to risk of injury. 8. Tree 1 may also engage the legislation with respect to damage in the near future, considered in Yang to be, as a rule of thumb, 12 months. There is, however, no need to pursue this avenue, as only one of the four circumstances described in s 10(2)(a) or s 10(2)(b) is required for the legislation to be triggered. 9. Mr Pickup, representing Council, as an interested party, submitted a folder of documents, detailing dealings with both parties. He noted that both trees were protected under the Hornsby Development Control Plan 2013 (HDCP) Tree Preservation Measures Part 1B.6, and advised that neither the trees nor the properties were subject to heritage considerations. 10. The Court examined Mr Harrigan's Tree Assessment notes from his inspection of January 24, 2019, which was conducted in response to an application from Mr and Mrs Mayadunne, for tree removal. The data provided in relation to both trees was accurate and clear with appropriate and sufficient content. Mr Harrigan's completed risk assessments using the internationally recognised Quantified Tree Risk Assessment (QTRA). Though his working calculations were not provided, I concur with the numerical results which reflect a low and acceptable risk. A letter of refusal of the tree removal, sent to the respondent on January 29, 2019 was also included in Council's folder. 11. With respect to the trunk markings, based on the arboricultural expertise I bring to the Court, it appears that these are not indicative of disease, but rather, a combination of corky bark and dried kino, which is a treacle like liquid expelled as part of the tree's natural protection against trunk borers. The extent and appearance of bark on this species varies greatly between individual specimens. Tree 1, viewed from the ground, appears to have a structurally sound, mainly ascending primary branch scaffold, notwithstanding a lean of about ten degrees towards the applicant's property. 12. It is reasonable to link the current canopy appearance and reduced condition of Tree 1 to root damage caused by the extensive excavation for the applicant's home and driveway. The tree may decline further and accumulate deadwood more frequently, but it may alternatively increasingly establish compensatory root regrowth into the adjacent garden bed and lawn area, and re-invigorate. 13. Though the tree's prognosis is uncertain and it will need to be monitored, the presence of the tree's critical root system anchoring the tree in tension under the respondents' lawn, undisturbed for at least the last eight years, leads me to concur with Council's assessment that tree removal is not warranted at this stage. Provided the tree remains structurally sound, it should be retained, given that it provides many environmental benefits and may rejuvenate. I also agree with Mr Harrigan's recommendation that removal of deadwood is appropriate, along with the Monstera deliciosa, which is climbing up the lower trunk, and this will be ordered. 14. Particularly with this concurrence of opinion, Mr Dara's initial claim for assessment of Tree 1 by a "qualified arborist or suitably qualified professional" has been satisfied by two people who meet this description, as has his second claim for pruning of deadwood. 15. As there has been no evidence provided of damage to property, or any occurrence of injury, the respondents adherence to the Orders made in this case constitutes the taking of responsibility. 16. If Tree 1 does decline, a fresh application could be submitted to Council for consideration under the terms of their HDCP. Alternatively, as noted in Hinde v Anderson & anor [2009] NSWLEC 1148, if circumstances change, and the tree does cause subsequent damage or injury, a fresh application can be submitted to the Court and action may be available under the Act. 17. When orders are made under the Act for respondents to undertake work on their trees, this is normally at their expense, reflecting the requirement for landowners to take responsibility for trees on their property. When the tree was there first, however, and problems arise or are exacerbated once a structure is built below it, the financial responsibility may be different. 18. In Black v Johnson (No 2) [2007] NSWLEC 513, the Court has published a tree dispute principle which says, in summary, that the fact that the tree was there first should not impact on whether or not some order should be made about the tree but, subject to a range of matters discussed in the principle, the prior existence of the tree may be a relevant matter to be considered when deciding who should meet the cost of carrying out any orders which the Court might make. 19. With respect to debris from the trees falling on Mr Dara's roofs and driveway, the issue of the maintenance impost from falling sticks and leaves is addressed in Barker v Kyriakides [2007] NSWLEC 292, which, at [20], establishes the tree dispute principle: "For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment." In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis. The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees will not ordinarily provide the basis for ordering the removal of or intervention with an urban tree", and thus this issue is resolved and dismissed. Discretionary matters – s 12 1. In making an order, the Court considers relevant matters in s 12 of the Act. * The trees are located in the respondents' property close to the common boundary (s 12(a)). * The trees are protected by Council's Tree Management controls under the HDCP (s 12(b)). * With respect to s 12(b2), past pruning of the Eucalyptus trees has been of a reasonable standard, and the trees appear to display sound branch structures. Subsequent pruning specifications shall maintain this and be limited to deadwood, plus any dangerous, damaged live branches. * The trees contribute to protection from the sun, to landscaping, to the amenity of the respondents' property, and to the immediate locality. The trees are visible from neighbouring houses and thus have intrinsic value to public amenity (s 12(b3), (e), (f)). * Being of a species dominant in the local ecological community, and because of its flowering and fruiting characteristics, these trees could be expected to provide food and or shelter for local fauna and thus would contribute significantly to local biodiversity (s 12(d)). * The trees are likely to be providing benefit to soil stability, and to reducing localised water accumulation, erosion and run off (s 12(g)). Conclusion 1. I am satisfied, based on viewing the trees, and on the evidence submitted, that there is risk of injury from falling dead branches. The Act is thus engaged and pruning of deadwood will be ordered. 2. No satisfactory evidence has been provided to support or justify removal of either Sydney Blue Gum. Tree 2 appears structurally sound and healthy. Tree 1 needs ongoing monitoring, but it currently appears structurally sound. Once deadwood is removed, risk associated with the trees will be low, and acceptable. 3. As shown through consideration of s 12, the trees provide many environmental benefits to the respondents and to their property, and make an important contribution to the maintenance and enhancement of local biodiversity. Orders 1. The Court orders: 1. The canopies of the two Eucalyptus saligna (Sydney Blue Gum) trees overhanging the applicant's property, including the nature strip in front of his property shall be pruned annually to remove all deadwood above 20mm diameter at the branch collar. This shall initially be completed within eight weeks of the date of these orders, and during July or August of each subsequent year. The Monstera deliciosa, which is climbing up the lower trunk of Tree 1, shall also be removed in conjunction with the initial pruning. The work is to comply with AS4373-2007 Pruning of amenity trees. 2. The expense for this annual dead-wooding shall be shared equally between the parties. Each year, the applicant and the respondents may each procure up to two quotes for the work specified in Order 1. If they cannot agree on an arborist, the least expensive of the quotes is to be selected, provided that they meet all requirements of Orders 1 and 3. Within 14 days of receipt of a copy of a paid invoice for these works, Mr Dara is to reimburse Mr and Mrs Mayadunne 50% of the total of the invoice. 3. All works shall be undertaken by AQF level 3 qualified arborists, with appropriate Public Liability insurance, and in compliance with Safe Work Australia 'Guide to managing risks of tree trimming and removal work', 2016. If required for any of these works, as is likely, access is to be provided by the applicant, subject to notice of at least 48 hours, and entry only during reasonable working hours. …………………………. J Douglas 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: 29 May 2019