Tree Principle – Allocating the Cost of Remedial Action

In Black v Johnson (No. 2) (2007) NSWLEC 513, the Land and Environment

Court announced a Tree Principle to deal with situations where dwellings are built near established trees.

The case involved an application to remove a Spotted Gum tree that was growing near the common boundary between two properties in Belmont. The Court found that the tree in question was already “significantly grown” at the time that the Applicant built a new house.  There was evidence that storm activity had caused a branch to fall onto the roof, causing damage to some tiles.

The circumstances of the case prompted the Court (Senior Commissioner Moore and Acting Commissioner Theyer) to formulate a Tree Principle to guide decisions in similar cases.

First of all, the Court declared that the fact that a structure has been built near an existing tree would not be a reason for the Court not to require remedial action if the tree had caused damage or posed a safety hazard.

However, the previous presence of a tree may govern the Court’s decision concerning who must carry out and pay for the remedial work.  Under the Tree Principle, the Court will consider the following factors:

* Whether the new structure could have been placed elsewhere on the property (in other words, where it would not have been at risk of damage from the tree) without imposing an “unreasonable constraint” on the development potential of the land.

* Whether the tree was “self-sown” or planted – and, if the tree was planted, what type of tree it is and whether the tree has been planted in a suitable location. (It thus appears that the Court would be more inclined to impose the cost of remedial work on the owner of the property where the tree was planted, especially if it is a species that is likely to drop branches that cause property damage or pose a risk of harm to people).

In the Black case, the Court found that it would have been possible to re-locate the new house away from the common boundary by 3 metres.  However, moving the house in this manner would not have eliminated the safety hazard to occupants of the house.  Re-designing the development would have created a private open space where people would have been at risk of injury from falling branches. 

Accordingly, the Court concluded that it was appropriate to require the Applicant’s neighbour to remove the spotted gum.

The Tree Principle has important consequences for property owners who are considering new construction near trees, as well as for consultant arborists who are advising them.  Where it is possible to design the layout of a new development to avoid proximity to existing trees, but the more sensitive plans are not adopted, it may still be possible to bring a successful application under the Trees Act to have a tree removed or pruned. However, a person who fails to implement the best available design practices may not be able to recover the costs of the remedial action.

The Court's judgement is available at:

http://www.lawlink.nsw.gov.au/lecjudgments/2007nswlec.nsf/61f584670edbfba2ca2570d40081f438/93c135bdf4f5abdbca257338000f1f9d?OpenDocument

Tree Principle - Ordinary Maintenance of Trees In the Urban Environment

In providing advice concerning issues arising under the Trees (Disputes between Neighbours) Act, arborists should be aware of the "Tree Principles" that the Land and Environment Court has established. 


The first of these principles was announced in the case of Barker v  Kyriakides, (2007) NSWLEC 292. A link to the full text of the judgement is provided at the end of this post. 


In Barker, the Applicant sought to have a large eucalypt tree removed on the basis that it was dropping leaves and pieces of small deadwood into his gutters and the open space at the rear of his property.  The Applicant complained that because he was a person of advanced age, he was unable to climb to his roof and clean the gutters himself. In addition to removal of the tree, he asked the court to require his neighbours to compensate him for the cost of hiring a contractor to clean the gutters.


The Court found that the tree in question was in good health and did not contain an abnormal amount of deadwood . The tree's canopy was well clear of the houses in the area. Furthermore, there was no evidence that significant branch drop had occurred in the past, or any indication that there was an likelihood of significant branch failure. 


Consequently, the Court found that the criteria that must be satisfied under section 10(2) to justify removal of a tree - namely, that the tree had caused, or was likely to cause property damage or posed a risk of injury to persons - were not present. It thus refused the application for removal of the tree.


The Court also used the case to state as a general Tree Principle that the fall of minor debris from a tree will not be sufficient grounds for an order requiring the removal of the tree.  The Court articulated this Principle in the following terms:


"The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree."


It is also of note that the Court declined to award the Applicant compensation for the cost of cleaning his gutters and yard.


http://www.lawlink.nsw.gov.au/lecjudgments/2007nswlec.nsf/c45212a2bef99be4ca256736001f37bd/350a2bce12fd0ce9ca2572e80076651e?OpenDocument

A Cautionary Tale About Arborists' Reports

The Land and Environment Court has severely criticised the quality of an arborist's report in a judgement dated 12 May 2011.


The case, Proprietors SP 9467 v Motyl and anor (2011) NSWLEC 1120, involved an application under the Trees (Disputes Between Neighbours) Act that sought the removal of three Camphor Laurel trees.


In unusually harsh language, Senior Commissioner Moore and Commissioner Fakes declared that the report, prepared by the consultant arborist engaged by the owners of the property where the trees were growing, was "not worth having been provided to us". 


The Court condemned the report - which it scathingly characterised as a "so-called" report, for including a statement that the Court found to be "patently and demonstrably false" - namely, the abrorist's claim that the trees had not caused damage to the palings of a dividing fence.  The Court also criticised the consultant for stating in his report that there was no grater than a 1 in a 1 million chance that the trees would not present a risk of harm, without providing any basis for that statistical claim.


The Court observed that the deficiencies in the report were reflective of "widespread deficiencies" in the quality of reports that are relied on in cases arising under the Trees Act.  The Commissioners therefore determined that the case presented an opportunity for the Court to clarify its expectations concerning the contents of experts' reports - specifically:


1) The report must set out the facts on which the expert relies;
2) Where matters of fact are asserted, appropriate references must be provided;
3) The report must state the assumptions which the expert makes with respect to the facts; and
4) The expert's conclusions must be clearly stated.


The moral of this case extends beyond arborists and has implications for all expert witnesses who are giving evidence before the Land and Environment Court.


Any expert would be well advised to follow the guidelines provided by Senior Commissioner Moore and Commissioner Fakes. Failure to do so may well result in rejection of the expert's evidence and the prospect that the expert's work product will be described in unflattering terms, to the detriment of the expert's professional reputation.


The text of the Court's judgement can be found at the following link:


http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=152038