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