Who Should Pay? The Court's "Tree Principle"

Litigation under the Trees (Disputes Between Neighbours) Act 2006 has become an increasingly significant part of the Land and Environment Court's caseload in the years since the Act came into force. One of the issues that the Court has had to deal with is deciding who should bear the costs of removing, or undertaking remedial work to trees that is found to be necessary to prevent property damage or risk of personal injury. This question is particularly problematic in situations where new construction has been carried out on land adjacent to another property where pre-existing trees have reached a stage of advanced growth.

The Court has adopted a "tree dispute principle" which it relies upon to guide its decision-making in such cases. Persons who are considering proceedings under the Act need to be mindful of this principle, which was enunciated in the case of Black v Johnson (No 2) (2007) NSWLEC 513. A link this judgment is at:

 http://www.lawlink.nsw.gov.au/lecjudgments/2007nswlec.nsf/00000000000000000000000000000000/93c135bdf4f5abdbca257338000f1f9d?opendocument

The case arose from a circumstance where new building works had been carried out under the authority of a development consent that was issued by Lake Macquarie Council.  Four large Spotted Gum trees had been established near the common boundary.  The Court (composed of Senior Commissioner Moore and Acting Commissioner Thyer) made findings that branches from one of the trees had become detached and had caused damage to the roof tiles on the new dwelling. The Court was therefore satisfied that the precondition for the making of an order requiring the removal of the tree under section 10(2)(a) of the Act had been met, namely that the tree had caused damage to the applicant's property.

With this finding apparently in mind, the Court stated the first prong of the tree dispute principle, namely, that the fact that a tree has been in place prior to new construction will not prevent the Court from making an order requiring the tree to be removed,  or for remedial action (pruning of branches) to be taken in circumstances where the tree has caused property damage or presents a risk of such damage or of injury to a person. 

The second prong to he tree dispute principle that was announced in Black v Johnson deals with how responsibility for undertaking or paying for the cost of tree removal or remedial action should be allocated.  

The Court stated that among the factors to be considered are whether the tree in question has been planted or "self-sown", the type of tree that has been planted, and the suitability of the location where the tree has been planted. Although the Court did not discuss or explain how these factors will be applied in Black v Johnson, it seems apparent that responsibility is less likely to be apportioned to the owner of neighbouring land when a tree is self-sown. Conversely, it is also apparent that there is a greater likelihood that the obligation for removal or remedial action will be imposed on the owner of the land where the tree is growing in cases where the species of trees that have been planted are ones that are likely either to drop branches or be toppled in storm events, and where the trees have been planted in proximity to the common boundary.

The last prong of the tree dispute principle requires the Court to examine the design of the new construction. In cases where the new structure could have been situated at a location where there would not have been a risk of property damage or personal injury from the pre-existing trees on the neighbouring property, it is less likely, under the tree principle, that the owner of the adjacent property where the trees are growing will be ordered to pay the costs of tree removal or other remedial action.

In the particular circumstances that existed in Black v Johnson, the Court found that the new dwelling that had been damaged could have been located 3 metres further forward - in other words, away from the common boundary. However, the Court determined that even if this change to the design of the new dwelling had been made, there would have been risk of injury to persons in the courtyard (as the courtyard would have been located where a branch from the tree that was the subject of the case had fallen). On the basis of this finding, the Court made orders requiring the owner of the property where the pre-existing tree was growing to remove the tree.

The guidance to be drawn from the tree dispute principle that was stated in Black v Johnson is that the owners of newly-developed properties will be unlikely to succeed in actions under the Act where there are feasible alternative design solutions that will place the new building sufficiently far from pre-existing trees to avoid the risk of property damage or risk of injury to persons.