Land and Environment Court New South Wales

• Medium Neutral Citation: Muccino & anor v Ring & anor [2013] NSWLEC 1020
• Hearing dates: 1 February 2013
• Decision date: 01 February 2013
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application to remove tree dismissed; orders made for pruning and for rectification of a fence

• Catchwords: TREES [NEIGHBOURS] Damage to property; injury to persons
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
• Category: Principal judgment
• Parties: T and S Muccino (Applicants); J and G Ring (Respondents)
• Representation: Applicants: T and S Muccino (Litigants in person); Respondents: J and G Ring (Litigants in person)
• File Number(s): 21092 of 2012

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1 COMMISSIONER: This is an application made under s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by the owners of a property in Baulkham Hills against the owners of a tree growing at the rear of an adjoining property.

2 The applicants are seeking the removal of the tree, rectification of a panel of fence, and the relaying of pavers that the applicants say have been damaged by the tree's roots. The applicants contend that branches have fallen from the tree and have damaged their property. They are concerned that branches will continue to fall and cause injury to anyone on their property, in particular their grandchildren. During the hearing, the applicants also raised concerns over the failure of the entire tree.

3 The respondents do not wish to remove the tree but if ordered to do so consider that the applicants should share the cost of doing so. The respondents value the tree for the shade it provides and for its contribution to local biodiversity.

4 In applications made under Part 2, the key jurisdictional test is found in s 10(2) of the Act. This states that the Court must not make an order under this Part unless it is satisfied that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant's property or is likely to cause injury to any person.

5 The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. At [62] Craig J states in part "something more than a theoretical possibility is required in order to engage the power under [the Trees] Act...".

6 The tree is a healthy mature specimen identified in an arborist's report and other documentation as a Eucalyptus saligna (Sydney Blue Gum). It is located very close to the dividing fence between the two properties. It was present when the parties purchased their properties however it has grown considerably during that time. The tree is highly visible from the surrounding streets and contributes to the landscape character of the area.

Paving

7 The tree partly overhangs an extensive paved section of the applicants' back garden. The paved area has a pergola and pizza oven and is used for outdoor entertaining. The paved area consists of two sections and styles of paving.

8 The older paving, installed about 12 years ago, comprises large concrete pavers interplanted with Mondo Grass. Some of the pavers are lifted along one or more edge/s and the applicants are concerned that these could be a trip hazard. It is the applicants' view that roots from the Eucalypt have lifted the pavers. I noted a number of lifted pavers some distance from the immediate vicinity of the tree. The applicants were unable to show me any roots beneath any of the lifted pavers.

9 The other more recent paving, installed about 5 years ago, comprises terra cotta tiles on an elevated terrace close to the boundary fence including immediately adjacent to the base of the tree. Some individual pavers are displaced along an edge. The section of paving laid at the base of the tree, and knowingly over the root buttresses, is uniformly tilted towards the applicants' dwelling.

10 During the hearing the applicants removed two of the partly lifted pavers and excavated some of the thick layer of sand and road base beneath them; however, no roots were uncovered during the hearing.

Findings - paving

11 While some individual pavers are lifted and could be considered a trip hazard, the applicants have not provided any evidence of this being caused by the roots of the tree the subject of the application.

12 In regards to the pavers closest to the tree, I am prepared to accept that these have been tilted by expansion of the base of the tree. However, as a matter of discretion no orders will be made for any rectification as the effect is essentially cosmetic, the area affected is quite small and there is an extensive area of paving available for seating elsewhere. The applicants were fully aware of the base of the tree when the paving was installed.

The fence

13 One panel of the metal dividing fence immediately adjacent to the tree is severely buckled and displaced. The applicants contend that the tree has caused this damage. In 2009, a large branch fell from the tree; photographs included in the application indicate that this event may have caused the buckling of the fence.

14 I observed the adjoining panels to be in reasonable condition although some of the panels to the northwest were slightly out of alignment. The fence is thought to be about 20 years old.

Findings - fence

15 I am satisfied to the extent required by s 10(2) that the tree has caused both the displacement of and damage to the fence. Therefore orders will be made for the replacement of that one panel of fence at the respondents' expense.

Branch/ tree failure

16 As stated above, in 2009, in apparently calm conditions, a large branch fell from the tree. This caused damage to various items of the applicants' property. A wound remains on the trunk; when viewed with binoculars from the ground, there are no obvious signs of degradation of the wound surface.

17 The applicants provided many undated photographs of green and dead branches that had fallen from the tree - they say in the last 12 months or so. Apart from the large branch that fell in 2009, the applicants have not brought these branch failures to the attention of the respondents.

18 In 2009, the applicants applied to the local council for permission to remove the tree; council approved the application and notified the respondents. The respondents, as is their right, elected not to remove the tree.

19 On a number of occasions, the respondents have sought permission from the council to prune the tree; permission has been granted for selective branch removal and thinning. The tree was most recently pruned in October 2012. The applicants have also had overhanging branches pruned away from their property.

20 An arborist's report obtained by the respondents notes the successful occlusion of the pruning wounds as evidence of the tree's health and vitality. I concur with this finding.

Findings - tree and branch failure

21 I am satisfied that a large branch fell from the tree in 2009 and caused damage to the applicants' property; thus as s 10(2) is satisfied, the Court's jurisdiction to make orders is engaged.

22 There were no signs at the wound site to indicate the reason for the failure and it appears to have been a single, unpredictable event. However, I am satisfied that dead wood and other branches have also fallen into the applicants' garden.

23 While it is clear that a number of branches have been pruned away from the applicant's property, a number still remain. Some dead wood remains in parts of the tree that overhang the applicants' property.

24 I saw no signs that would lead me to conclude that there is any real risk of whole tree failure.

25 On the evidence before me, I am not satisfied that the tree should be removed at this stage but I consider that some additional pruning is justified.

26 I have determined that two large limbs that overhang the applicants' property should be removed. These are indicated as 'A' and 'B' on the scanned photograph attached to this judgment. The general positions of the final cuts are indicated on the photograph. [Note: the photograph is taken from the applicants' property and the relative position of the branches to the wound should be noted.] The architecture of these branches, some of which is related to previous pruning, is such that the loading and arrangement of the secondary branches could pose an increased risk of failure. With the expertise I bring to the Court, I consider that the removal of these branches will not significantly affect either the health or structural integrity of the tree.

27 In addition, every two years, the respondents will be required to have all dead wood down to 30mm in diameter removed from those parts of the tree that overhang the applicants' property to a distance of two metres inside their own property.

Orders

28 On the basis of the foregoing, the Orders of the Court are:

(1) The application to remove the tree is dismissed.

(2) The application for rectification of paving is dismissed.

(3) Within 120 days of the date of these orders, the respondents are to engage and pay for a fencing contractor to replace the panel of fence at the base of the tree. The panel is to be replaced to accommodate the tree without causing damage to it and to allow a gap of 100 mm between the fence and the tree as an allowance for growth.

(4) Within 60 days of the date of these orders, the respondents are to engage and pay for an AQF level 3 arborist to remove the two branches indicated on the photograph in Annexure A of this judgment. All dead wood in excess of 30mm in diameter at its base is to be removed from all parts of the canopy which overhang the applicants' property to a distance of two metres inside the respondents' property.

(5) All work is to be carried out in accordance with AS4373:2007 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(6) Should it be required, the applicants are to provide all reasonable access for the purpose of quoting and for the carrying out of orders 4 and 5.

(7) Every two years within two weeks either side of the anniversary of the pruning in order 4, the respondents are to engage and pay for an AQF level 3 arborist to remove all dead wood in excess of 30mm in diameter at its base from all parts of the canopy which overhang the applicants' property to a distance of two metres inside the respondents' property.

(8) Should it be required, the applicants are to provide all reasonable access for the purpose of quoting and for the carrying out of order 7.

_________________

J Fakes

Commissioner of the Court

 

ANNEXURE A

Decision last updated: 04 February 2013