Land and Environment Court New South Wales Medium Neutral Citation: Grant v Zhao [2019] NSWLEC 1387 Hearing dates: 15 August 2019 Date of orders: 15 August 2019 Decision date: 15 August 2019 Jurisdiction: Class 2 Before: Galwey AC Decision: (1) The application is granted. (2) Before 15 January 2020, the respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances to: (a) Remove trees T1 and T2 to no more than one metre above ground level; (b) Prune T3 to reduce its crown overhanging the applicants' property by ~15%; (c) Remove any parts of roots and stumps of T1 and T2 that would interfere with construction of a fence along the common boundary. (3) The works in (2) are to be carried out in accordance with AS4373:2007 Pruning of amenity trees and the 2016 Safe Work Australia Guide to managing risks of tree trimming and removal work. (4) Access for the works in (2) is to be through the applicants' property. (5) At least seven days before the works in (2), the respondents are to notify the applicants of the date of the works and provide the applicants with copies of the contractor's relevant insurance certificates and qualifications. (6) The applicants are to allow all access for the works to be completed during reasonable hours of the day. (7) The respondents are to compensate the applicants for any damage caused by their contractors carrying out the works. (8) Within 30 days of the date of these orders, the applicants and the respondents are each to obtain two quotes to replace their common boundary fence with a fence to match the respondents' side boundary fences, and provide each other with copies of the quotes. (9) Within 30 days of the tree works in (2) being completed, the applicants and respondents are to engage the fencing contractor with the cheapest quote, or another if they so agree, to replace the fence along their common boundary. (10) The applicant and the respondent are each to pay 50% of the cost of the fencing works. (11) Liberty to relist for the purpose of amending orders if necessary, should the respondents sign a contract to sell their property within the timeframe of the orders. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – risk of damage or injury – previous agreement between the parties – respondents have completed landscaping works – access for works Legislation Cited: Dividing Fences Act 1991 (NSW) Trees (Disputes Between Neighbours Act) 2006 (NSW) Texts Cited: AS4373:2007 'Pruning of amenity trees' Safe Work Australia 'Guide to managing risks of tree trimming and removal work', 2016 Category: Principal judgment Parties: McGregor Grant (First Applicant) Frances Grant (Second Applicant) Ray Zhao (First Respondent) Lai Xiang Yuan (Second Respondent) Representation: M Grant and F Grant, litigants in person (Applicants) R Zhao and L X Yuan, litigants in person (Respondents) File Number(s): 2019/88280 Publication restriction: No Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. Relevant history 1. Ray Zhao and Lai Xiang Yuan ('the respondents') have owned their East Lindfield property for about 18 years. Along the back fence of their long property, well away from their dwelling, are three mature trees, all Erythrina x sykesii ('the Coral Trees'). In the application and in this judgment, the trees are numbered from southwest to northeast, T1 to T3. 2. The respondents' back fence is on the common boundary they share with McGregor and Frances Grant ('the applicants'), who also have a long residential property. The Grants have a children's playhouse near the boundary, beneath the trees. 3. Mr Zhao and Ms Yuan have recently renovated their property, laid new lawn in their back garden along with other landscaping works, and replaced their side boundary fences with new timber paling fences approximately two metres tall. They had planned these works for some time. 4. The common boundary fence between the two properties (the 'back fence' for both) is an older and shorter timber paling fence, displaced in places, especially near the base of the centre Coral Tree. 5. Some time ago, the Grants became concerned that branches were dropping from the Coral Trees. Branches have fallen onto their playhouse and fence. 6. During 2017, the Grants spoke with Mr Zhao, expressing their concerns regarding the trees and their desire to replace the common boundary fence. They each obtained quotes for replacing the fence. Mr Zhao also obtained a quote for removing the middle Coral Tree (T2). The Grants offered to contribute to the cost of tree removal and share the cost of replacing the fence. Mr Zhao passed his quotes on to the Grants. 7. Mr Grant wanted the tree removal and fencing works done before the landscaping works so that a new lawn would not be damaged by contractors. He told the Grants he wanted to begin those works promptly. For reasons that need not be explained here, the Grants took three months to respond to Mr Zhao, by which time he assumed they were no longer concerned about the trees or fence and so he completed the landscaping works. 8. When the Grants finally contacted Mr Zhao to organise the works, he no longer wished to proceed with tree removal due to the potential damage this might cause to his lawn. The application 1. In March of this year, the Grants applied to the Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) ('the Trees Act') seeking orders for the three Coral Trees to be removed and rectification of the damaged section of the fence. Pursuant to s 13A of the Dividing Fences Act 1991 (NSW), they also applied for orders to replace the entire boundary fence. Their proposed orders included an order for costs, which is an order beyond the powers of Commissioners of the Court so they would need to file a Notice of Motion to be heard by the Registrar or a Judge of the Court if they wish to pursue that element of their application. Issues to be determined 1. The trees are on land adjoining the applicants' property. The applicants have made reasonable effort to reach agreement with the respondents. Therefore, I am to determine the following issues: * Have the trees caused, or are they causing, or are they likely in the near future to cause, damage to the applicants' property? * Are the trees likely to cause injury in the near future? * What other factors are relevant, including those listed at s 12 of the Trees Act? * What actions are required to mitigate any risk? Is tree removal required, or are there alternatives that would allow the trees to remain? * Who should pay for any tree works? * How can any works be carried out with minimal impact to properties? * Have the trees damaged the fence? * Does the entire fence need replacing? * Who should pay for the fencing works? * What timeframes would be appropriate for any works? 1. I asked the parties to address these issues in any submissions they wished to make. The applicants' submissions 1. The applicants submitted that the trees are dangerous. Limbs have fallen from T1 and T2. They do not allow their children to play in the area at present, but wish to be able to use their entire property in future. T1 is declining and has a sparse crown. T2 has displaced the boundary fence, which cannot be properly replaced unless the tree is removed. 2. The applicants stated that they are no longer willing to contribute to the cost of tree works. They are willing to pay for half the cost of a new fence. They would like the works done as soon as possible, but acknowledged that they were responsible for a three-month delay in communicating with the respondents. They are willing to provide access for the tree works through their property, but would prefer the works be done through the respondents' property. 3. The applicants explained that they want a taller paling fence to provide some screening between the properties. The respondents' submissions 1. The respondents submitted that they don't want to remove the trees. The applicants should pay or contribute to the cost of any tree works because they are the ones who want the trees removed. If the respondents are to pay for major tree works, they will need time to organise the funds, suggesting a timeframe of six months. 2. If tree works are required, the respondents would prefer that only the top of T2 is removed, rather than the whole tree. To avoid damaging their lawn, they don't want to provide access for tree works through their property. 3. The respondents explained that they are willing to replace the boundary fence and pay for half its cost. They want a fence to match their side boundary fences, not a taller one. Findings The trees 1. No expert reports have been obtained by the parties. Bringing my own arboricultural expertise and experience, I observed the trees from the ground within the respondents' property. 2. These mature Coral Trees are approximately 20 metres tall with stems up to 150 cm in diameter. Being late winter, these deciduous trees were leafless. 3. T1's crown has signs of previous limb failure. I could not confirm the applicants' statement that its foliage has thinned, but large buttress roots were observed to be damaged and decaying. This would explain a thinning crown. The condition of these structural roots increases the risk of whole tree failure, which would result in significant damage to fences and other property, including property on the applicants' land. There is little point in pruning this tree to reduce the risk: it will continue to decline, and as roots decay further the risk of failure would increase again. Ordering removal of T1 is the most appropriate action. 4. T2 has a history of branch failure. Many large branch stubs remain in its crown where branches have fallen in recent years. A large fallen branch rests on the applicants' playhouse. While they may have left it there for effect, I do not think they have placed it – rather this is where it fell. Large branches remaining above their playhouse are weakened by wounds remaining where branches have torn off. The base of T2 has displaced the fence. I accept the tree has damaged the applicants' property. I am satisfied it is likely in the near future to cause further damage to their property, or injury. Removing damaged branches would leave the remainder of the crown more exposed, including large branches of epicormic origin that are more weakly attached than properly formed branches. The risk of damage or injury cannot be sufficiently minimised if the tree is retained. Removing only the upper crown, as suggested by the respondents, would result in further epicormic branch growth, leading to a risk of further branch failure in future as new branches grow. The most appropriate course of action is for T2 to be removed. 5. T3 shows no signs of major branch failure. Observed from the ground, it has no major defects likely to fail in the near future. Although it will be exposed to some increased wind loads following removal of two adjacent trees, its crown is adjacent to and intermingles with the crown of a neighbouring Silky Oak, affording it some protection. Branches extending above the applicants' property may become more likely to fail with the increased exposure. Reducing that part of the tree's crown above the applicants' property would reduce the risk of branch failure causing damage or injury. The tree would not be adversely affected by total crown reduction of ~15%. The respondents will pay for tree works 1. Unless an applicant's actions have contributed to the risk of damage or injury, it is usual in tree disputes for the tree's owner to pay for any tree works. Although the Grants offered earlier to contribute to the cost of tree works, they withdrew that offer. They have not damaged the trees or otherwise contributed to the risk of damage or injury caused by the trees. The respondents will bear the cost of the tree works. Access 1. Through either property, access to the trees is limited. A tree crew will need to access the tree with climbing equipment. Branches will need to be dragged across a garden, alongside a dwelling, and out to a chipper on the street in front of one of the properties. I accept that this would be likely to have some impact on the respondents' new lawn. The respondents' wishes to do any tree works before their landscaping works were logical, but failed due to the applicants' delay in responding. The applicants propose to do landscaping works after any tree works are completed. The respondents will bear the substantial costs of tree works. It seems reasonable, then, that access for tree works is through the applicants' property. The respondents must provide the applicants with notice of the works and copies of their contractor's relevant insurance certificates and qualifications. Fence 1. The fence along the common boundary is dilapidated. The parties will share the cost of its replacement. Because they don't agree on installing a taller fence than adjacent fences, the new fence will match the respondents' side boundary fences. Timeframes 1. I accept the respondents' submissions that they require some time to organise funds for the tree works. Usually such works would be ordered within one or two months. Considering the submissions heard, and the applicants' part in the works already being delayed, I find a timeframe of five months is reasonable for completing the tree works. Fencing works must necessarily await completion of the tree works. 2. The respondents explained that they may sell their property during that period. Should this require reconsideration of the orders, the parties can apply to relist the matter. Orders 1. Based on the above, the orders of the Court are: 1. The application is granted. 2. Before 15 January 2020, the respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances to: 1. Remove trees T1 and T2 to no more than one metre above ground level; 2. Prune T3 to reduce its crown overhanging the applicants' property by ~15%; 3. Remove any parts of roots and stumps of T1 and T2 that would interfere with construction of a fence along the common boundary. 1. The works in (2) are to be carried out in accordance with AS4373:2007 Pruning of amenity trees and the 2016 Safe Work Australia Guide to managing risks of tree trimming and removal work. 2. Access for the works in (2) is to be through the applicants' property. 3. At least seven days before the works in (2), the respondents are to notify the applicants of the date of the works and provide the applicants with copies of the contractor's relevant insurance certificates and qualifications. 4. The applicants are to allow all access for the works to be completed during reasonable hours of the day. 5. The respondents are to compensate the applicants for any damage caused by their contractors carrying out the works. 6. Within 30 days of the date of these orders, the applicants and the respondents are each to obtain two quotes to replace their common boundary fence with a fence to match the respondents' side boundary fences, and provide each other with copies of the quotes. 7. Within 30 days of the tree works in (2) being completed, the applicants and respondents are to engage the fencing contractor with the cheapest quote, or another if they so agree, to replace the fence along their common boundary. 8. The applicant and the respondent are each to pay 50% of the cost of the fencing works. 9. Liberty to relist for the purpose of amending orders if necessary, should the respondents sign a contract to sell their property within the timeframe of the orders. ………………………………. 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: 16 August 2019