Owners Corporation Strata Plan 18958 v Wilton [2015] NSWLEC 1368

Land and Environment Court New South Wales

Medium Neutral Citation: Owners Corporation Strata Plan 18958 v Wilton [2015] NSWLEC 1368 Hearing dates: 9 September 2015 Date of orders: 09 September 2015 Decision date: 09 September 2015 Jurisdiction: Class 2 Before: Fakes C Decision: Application upheld in part see [30] Catchwords: TREES [NEIGHBOURS] Damage, injury Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Uniform Civil Procedure Rules 2005 Cases Cited: Libbesson & anor v Martin & anor [2013] NSWLEC 1242 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305, NSWLR 705 Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: Owners Corporation Strata Plan 18958 (Applicant) Ms L E Wilton (Respondent) Representation: Applicant: Mr G Birtels (Solicitor) Respondent: Mr A Davis (Barrister)

Solicitors: Applicant: Duncan Maclean and Associates Respondent: Paradigm Legal File Number(s): 20505 of 2015

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1. COMMISSIONER: The owners of a property in Tamworth have applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking, amongst other things, the removal of three Populus italica 'Nigra' (Lombardy Poplar) growing on an adjoining property. 2. Other orders concerning another tree identified as a Pine (Tamarisk aphylla or Athol Pine) and adjoining sections of fence have been resolved by the parties and are no longer pressed. 3. The applicant is also seeking reimbursement of costs, including legal costs. Commissioners do not have the jurisdiction to award such costs. Should the applicant wish to do so, a Notice of Motion can be filed to be heard by a Judge or Registrar of the Court. 4. The three Poplars in question are located on the northern side of the respondent's property and within 1m of the dividing fence between the parties' properties. 5. In the application claim form, the applicant states that in 2013 a section of one of the Poplars fell onto the applicant's property and caused damage to the roof of one of the units. The application raises concerns about the risks posed to property and people as a consequence of the remaining sections of the three trees. Photographs included in the claim form show the trees, at the time the application was made, to be in very poor condition with significant amounts of dead wood. 6. The applicant sought advice from an arborist, Mr David McKinnon. In Mr McKinnon's affidavit, sworn on 3 August 2015, is a report prepared by him (Exhibit B) which recommends urgent removal of the trees in order to prevent further damage. 7. On Monday 7 September 2015, two days before the on-site hearing, the respondent had the trees reduced to a height of approximately 4m above ground. 8. This action appears to be based on a report prepared for the respondent by Mr Ian McKenzie, a consulting arborist, following his inspection of the trees in August 2015 (Exhibit 1). 9. Mr McKenzie carried out a range of tests on the trees and their surroundings and made a number of observations. In summarising those observations, all three trees are described as over-mature, in poor health, with poor vigour, poor structure and with a useful life expectancy of less than five years. The trunks were sounded with a mallet and assessed as sounding hollow. 10. Mr McKenzie applied a number of risk assessment methods and on the basis of his observations, testing, experience and training formed the opinion that reducing the trees to a height of 5m would significantly reduce the risk of damage or injury. 11. In applications made under Part 2, the key jurisdictional test is found in s 10(2). This states: (2) The Court must not make an order under this Part unless it is satisfied that the tree concerned: (a) has caused, is causing, or is likely in the near future to cause, damage to the applicant's property, or (b) is likely to cause injury to any person. 1. This must be considered for each of the trees the subject of an application. 2. On the evidence before me and with the arboricultural expertise I bring to the Court, I consider that the portion of tree that caused the damage to the applicant's property came from Tree 1. The photographs in the claim form show a section of the fallen Poplar – identifiable by its form and bark. The remaining stump of Tree 1 has a large wound consistent with being the point of failure. 3. Therefore I am satisfied to the extent required by s 10(2) that the Court's jurisdiction in regards to Tree 1 is engaged. On the strength of the appearance of the trees in the photographs included in the claim form, it would seem to me that the applicant's concerns about the trees were justified. 4. However, as stated above, since the application was made the trees have been reduced to 4m stumps. 5. Counsel for the respondent contends that, based on Mr Mackenzie's report, this height is sufficient to reduce the risk posed by the trees to a point where future damage or injury is unlikely to occur in the timeframe usually applied by the Court – that is, 12 months for damage and the foreseeable future for injury. The respondent also submits that Mr McKinnon's report should be rejected or have no weight given to it as it does not comply with the standards expected of an expert report (Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305, NSWLR 705). 6. The applicant relies on Mr McKinnon's report as well as the opinion of Mr Mackenzie in regards to the poor condition of the trees. 7. Having read the reports I agree with the respondent that Mr McKinnon's report can be given little if any weight. While Mr McKinnon acknowledged that he read and agreed to be bound by the Expert Witness Code of Conduct in Schedule 7 of the Uniform Civil Procedure Rules 2005, his report does not demonstrate the requirements for expert's reports outlined in cl. 5 of the Code. In summary, Mr McKinnon did not include his qualifications, he did not outline the facts and assumptions on which his opinion is based, nor did he provide reasons for his opinion or identify any tests or other investigations he relied upon in forming that opinion. 8. While I accept Mr McKenzie's approach and application of various risk assessment methods, having inspected what remains of the trees and again with the arboricultural expertise I bring to the Court, I am not convinced that the height to which the trees have been reduced is sufficient to mitigate the risk of future damage or injury. While the Court generally adopts the 'rule of thumb' of 12 months in accordance with the guidance decision published in Yang v Scerri [2007] NSWLEC 592 it does not always do so if the circumstances are such that it is more practical to take action sooner rather than later (Libbesson & anor v Martin & anor [2013] NSWLEC 1242). 9. In this case the species of the tree is one in which decay can spread quite rapidly. Mr McKenzie identified hollow sounds in the accessible areas of all three trunks in sections that still remain. At paragraph [79] of his report he states that: "It is more likely that the trees will continue to disintegrate with occasional large pieces of dead wood falling from the trees rather than failure of a whole tree at or just above ground level. Notwithstanding, whole tree [failure] due to failure of the roots or the lower trunk is quite possible." 10. The failed stub of Tree 1 abuts the dividing fence and is already in an advanced state of decay and its further disintegration is entirely predictable. Its proximity to the dividing fence and common property is such that future damage is foreseeable although possibly not in the usual time frame. 11. The other remaining section of Tree 1 is sufficiently close to the fence that its inevitable deterioration and eventual failure could cause damage to the applicant's property. 12. Similarly Tree 2 has a bifurcated trunk; the closest section overhangs a clothesline and the dividing fence. It too shows typical signs of advanced deterioration associated with decay and extensive borer damage. 13. Tree 3 retains a quantity of dead and dying branches, which could also fail. 14. I agree with Mr McKenzie that whole tree failure is unlikely however I consider that the portions of all three Poplars which remain above the fence pose a risk of damage or injury to the extent to which I consider the relevant tests in s 10(2) are satisfied. 15. Before making orders I must consider relevant matters in s 12 of the Act. The respondent presses the affidavit of Mr Nicholas Wilton (Exhibit 2) in which Mr Wilton make a number of statements in regards to alleged actions against the trees taken by owners or occupiers of the applicant's property. The affidavit also includes correspondence obtained from Tamworth Council. 16. I do not propose to give any weight to this material as the trees have been substantially reduced and what may or may not have contributed to the condition of the trees cannot be proved. 17. Therefore in considering what orders are appropriate, while the trees have been lopped to about 4m, there is nothing to prove that the remaining stumps have been poisoned. 18. Lombardy Poplars have a propensity to sucker from the base or from severed limbs. Given the extent of decay in the remaining stems, should suckering occur, there is an added risk of failure of these parts and thus the potential for further damage or injury. 19. Therefore for the reasons given above, the Orders of the Court are: 1. The application is upheld in part. 2. Within 60 days of the date of these orders, the respondent is to engage and pay for an AQF level 3 arborist to further reduce the height of the trees to a height no greater than the top of the dividing fence (below the level of the lattice extension). The trees are to be poisoned to prevent future suckering. ___________________________ Judy Fakes Commissioner of the Court 20505 of 2015 (16.4 KB, pdf)

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