Land and Environment Court New South Wales

• Medium Neutral Citation: Strata Plan 70657 v Strata Plan 65757 [2013] NSWLEC 1106
• Hearing dates: 19 June 2013
• Decision date: 19 June 2013
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Appeal upheld in part; one tree to be removed

• Catchwords: TREES [NEIGHBOURS] Damage to property
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
• Category: Principal judgment
• Parties: Strata Plan 70657 (Applicant); Strata Plan 65757 (Respondent)
• Representation: Applicant: Ms M Bennetts (Agent); Respondent: Mr R Barrett (Agent)
• File Number(s): 20243 of 2013

Judgment

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

1 COMMISSIONER: This is an application pursuant to s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Long Jetty against the owner of trees growing on an adjoining property.

2 The application seeks the removal of eleven of thirteen trees growing along the western boundary of the respondent's property. These are shown on the diagram in the application claim form. The proposed orders also seek the pruning of the other two trees (White Cedars). In the alternative, the applicant seeks the removal of four trees it contends are undermining the applicant's driveway, and the pruning of the remaining trees to the fence line. The applicant is also concerned that lifted sections of the driveway may create a tripping hazard.

3 The primary orders appear to be based on Wyong Shire Council's approval of a development application for the proposed tree works. There were some discrepancies between the numbering and labelling of the trees in the application claim form and the reality on site. The council approval accurately records the species and the eleven specimens.

4 The trees the subject of the application - from front to rear are: T1 - Melia azedarach (White Cedar); T2 - Acer negundo (Box Elder); T3 - Sapium sebiferum (Chinese Tallow); T4 - Acer; T5 - Sapium; T6 - Acer; T7 - Sapium; T8 - Acer; T9 - Sapium; T10 - Tecoma stans (Yellow Bells); and T11 - Melia.

5 In applications under Part 2 of the Act, the key jurisdictional test is found in s 10(2). This states that the Court must not make an order 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. This must be applied to each of the trees to which the application is made.

6 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...".

7 At the on-site hearing I was shown a number of slabs on the applicant's driveway that were not level with the adjoining slabs. The first of these was towards the front of the property and appeared to slope slightly towards the respondent's property so that it was slightly lower at the end nearest the trees than the adjoining slabs.

8 The respondent's agent contends that the cause of this displacement is more likely to be the settling of the soil beneath the slab, especially as it is opposite a garage.

9 As there was no evidence to disprove this theory or to prove the applicant's contention that the displacement is due to the roots of adjoining trees, I have nothing more than a 'theoretical possibility' to consider. This is not the level of satisfaction required by s 10(2) in order to engage the Court's jurisdiction to make orders. On the face of it, the nature and direction of the displacement tends to support the respondent's contention.

10 The other slab in contention adjoins Tree 9, a Chinese Tallow that is planted very close to the dividing fence and thus close to the applicant's driveway. This slab was higher near the tree than the adjacent slabs.

11 With the expertise I bring to the Court, I am satisfied on the balance of probabilities that the displacement has been caused by the growth of the woody roots of T9. Therefore as s 10(2) has been satisfied for this tree, orders can be considered.

12 Having regard to the discretionary matters in s 12 of the Act, the tree is a relatively poor specimen displaying evidence of poor pruning practices. While it contributes to the overall amenity of the respondent's property, its loss would not be significant. In order to prevent ongoing damage, the roots of the tree would need to be pruned along the nearby fence line. Given the proximity of the tree to the fence, this would result in the severing of structural roots. This in turn could predispose the tree to instability or to die back in the canopy. It would seem to me that the most practical option in the circumstances is to remove the tree and poison the stump.

13 In regards to the pruning to the fence line of the remaining trees, there is no evidence to suggest that the overhanging branches are causing, have caused, or could in the near future cause damage to common property or could cause injury to any person. In any event, pruning branches back to the line of the fence would not be best practice and would not comply with the Australian Standard AS4373:2007 - Pruning of Amenity Trees.

14 As s 10(2) is not satisfied for any of the remaining trees, no orders will be made for any intervention with them.

15 Therefore, after considering the evidence before me, 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 remove Tree 9, a Sapium sebiferum to ground level. The stump is to be poisoned.

(3) The work is to be carried out by an AQF level 3 arborist with appropriate insurance cover and in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.

_______________________

Judy Fakes

Commissioner of the Court

Decision last updated: 24 June 2013