Land and Environment Court New South Wales

• Medium Neutral Citation: Pathikulangara & anor v Davidson & anor [2014] NSWLEC 1163
• Hearing dates: 14 August 2014
• Decision date: 14 August 2014
• Jurisdiction: Class 2
• Before: Galwey AC

Decision

The application is upheld. See orders at paragraph (18).

• Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage; injury; orders for pruning.
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Yang v Scerri [2007] NSWLEC 592
• Category: Principal judgment
• Parties: APPLICANTS; Joseph Pathikulangara (first applicant); Jayasri Joseph (second applicant); RESPONDENTS; Andrew Davidson (first respondent); Katrina Davidson (second respondent)
• Representation: APPLICANTS; Joseph Pathikulangara (Litigant in person); RESPONDENTS; Andrew and Katrina Davidson (Litigants in person)
• File Number(s): 20306 of 2014

Judgment

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

The application

1 In the northern suburbs of Sydney a large Lemon-scented Gum tree grows in the rear garden of a residential property. It is adjacent to the boundary fence, its broad crown spreading over not only the garden in which it grows but also the gardens, garage and dwelling of a neighbouring property. Mr Pathikulangara and Ms Joseph (the applicants) own the neighbouring property. Over the years they say branches have fallen from the tree, breaking roof tiles on their garage. They have become concerned, since the tree's owners have pruned limbs towards their own dwelling, that the tree is now lopsided and apart from there being a risk of more limb failures, they say the tree may be unstable and may fall onto their property. They have approached the tree's owners, Mr and Mrs Davidson (the respondents), and have been told that they may prune overhanging limbs but only those recommended by the Davidsons' own arborist. This did not satisfy the applicants so they have applied to the Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) seeking orders for regular pruning of the tree and for compensation for broken roof tiles. The Davidsons dispute that branches from the tree have broken roof tiles and believe that the onus lies with the applicants to prune limbs overhanging their property.

2 To determine what orders, if any, are appropriate for the Court to make I must first establish if the jurisdictional tests at s 10 of the Act are satisfied. Firstly, have the applicants made reasonable efforts to reach agreement with the Davidsons? Has notice of the application been given in accordance with the Act? Has the tree caused, is it causing, or is it likely in the near future to cause, damage to the applicants' property, or is it likely to cause injury to any person?

3 If the Court's jurisdiction is engaged I must then consider a range of discretionary matters at s 12 of the Act before making appropriate orders. The range of possible orders is set out at s 9 of the Act.

Jurisdictional tests at s 10(1) are satisfied

4 The applicants discussed the tree with the respondents on more than one occasion at the front of their property. Before filing this application they wrote to the respondents twice. The respondents say that the brief discussions were insufficient attempts at resolution and that the legal tone of the applicants' letters was inappropriate for the situation. The discussions and letters, no matter their tone, are evidence that the applicant has made some effort to resolve the situation and I am satisfied that the effort is reasonable given the apparently limited relationship between the parties. I am also satisfied, and there are no submissions to the contrary, that the applicants gave notice of the application as required.

Has the tree caused damage to the applicants' property?

5 Several tiles on the applicants' garage roof are broken. The ridge capping has been partially repaired in the past. No photographic evidence of limbs on the roof has been supplied. The applicants say that dead limbs have fallen regularly while they have lived there. They say few live limbs have fallen.

6 The respondents contend that the state of the roof tiles reflects the overall age and condition of the garage.

7 Having viewed the extent of the tree canopy above the garage, I accept that it is likely that limbs, especially dead ones, have fallen onto the roof. However I cannot be satisfied that this is the cause of the broken tiles observed at the onsite hearing. If I take the applicants' claim at its highest, and accept that branches have broken their tiles, the Court's jurisdiction would be engaged. This would lead to consideration of the discretionary matters at s 12. Mr Pathikulangara thinks branches have been breaking their roof tiles since they began occupying their property around 1998. Despite asking the Davidsons to prune the tree some years ago, he only brought the issue of broken roof tiles to the Davidsons' attention earlier this year. The Davidsons have therefore not been fully aware of the issues affecting the applicants and have been denied the opportunity to take any earlier action that may have prevented some degree of the alleged damage. For this reason, even if I accept that branches from the tree have broken roof tiles, I find that the applicants are not entitled to compensation for broken tiles.

Is the tree likely to cause damage to the applicants' property in the near future?

8 The applicants say that when the respondents had the tree pruned some years ago, several large limbs over the respondents' garden were removed but only one small branch over the applicants' property was removed. Mr Pathikulangara argues that the canopy is now lopsided and may fall over. The Davidsons say the tree is not lopsided and that their arborist has said it is not liable to fall. However their arborist, Mr Stuart Pittendrigh, has written a report advising the removal of several limbs overhanging the applicants' property, saying this will maintain "the balance, shape and form of the tree."

9 Bringing my own expertise to the matter, I find that it is unlikely that the tree will fall. Its root buttress appears sound and there are no signs that the tree is unstable. I note that there are no low overextended limbs over the Davidsons' property, but several extend significantly over the applicants'. The crown extends for some 10 metres from the stem centre to the southwest, towards the Davidsons' dwelling, but for 14-15 metres to the northeast, towards and over the applicants' garage and dwelling. I find that low overextended limbs over the applicants' property are likely to fail in the near future - they are long, are more horizontal than upright, and due to overshadowing from limbs above all the weight of their foliage is at their ends. For the purpose of this matter I regard 12 months as a suitable timeframe for "the near future", as has been applied consistently by the Court since Yang v Scerri [2007] NSWLEC 592.

10 There are also dead branches around 50 millimetres in diameter throughout the crown. They are surprisingly few considering that several years have passed since the tree was last pruned, but they will fall in the near future and are likely to damage roof tiles.

11 The risk of damage described above engages the Court's jurisdiction in regard to the tree (s 10(2)(a)).

Is the tree likely to cause injury to any person?

12 The overextended limbs and dead branches described above are likely to fall and may cause injury. They are above the applicants' garden and carport as well as an uncovered area where cars park. They also overhang the public roadway outside their property. The risk of injury is lower than the risk of damage because people are only present beneath the crown intermittently, whereas the applicant's tiled roof is permanently within the target zone of falling branches. However the Court's jurisdiction is already enlivened due to the risk of damage, so orders can be made and the risk of injury should be considered when making orders.

What orders would be appropriate?

13 There is no need to remove the tree. Apart from overextended limbs and dead branches, described above, the tree appears structurally sound with no major defects and no signs of internal decay. The tree provides many benefits: environmental benefits and amenity to those who live nearby. It is approximately 20 metres tall and contributes to public amenity. It is a valuable asset and warrants ongoing effort for its retention. Pruning can reduce the risk so that damage is not likely in the near future. Regular pruning can maintain the lower ongoing residual risk level. Orders will be made to firstly prune several major limbs and other hazardous limbs, and then to regularly prune developing hazards such as deadwood.

14 Mr Pathikulangara submitted at the hearing that he would like to see the tree pruned every two years. The Davidsons submitted that pruning every one or two years would be satisfactory. As the current amount of deadwood in the tree several years after pruning is relatively low, pruning every two years should suffice.

Other relevant matters at s 12

15 The matters at s 12 have all been considered before making the orders below. Many of these relate to the benefits of the tree, which are significant. At s 12(b) the Court must consider whether interference with the tree would normally require consent from an authority. Hornsby Shire Council's tree protection processes are set out in the Hornsby Development Control Plan - Part 1. Apart from protecting all locally indigenous trees, it also states: "Any trees identified to be retained as a condition of development consent are protected." Although the subject tree is not indigenous, its retention was the condition of the respondents' development consent for their swimming pool. Therefore interfering with the tree may normally require Hornsby Shire Council's consent. The pruning ordered below is necessary for risk management and I see no reason why Council would not permit similar pruning if they had received an application.

16 According to s 6 of the Act, Council's consent is not required for carrying out the Court's orders. Any pruning beyond the extent of the orders may require Council consent.

Who should pay for maintaining the tree?

17 Mr Pathikulangara says the owners of the tree should pay for pruning. The Davidsons say that as the applicants are the affected party they should bear the costs. Generally, the person on whose land a tree grows will be responsible for the costs of carrying out Court orders for pruning. The Court has sometimes ordered apportionment of such costs where an applicant's actions have contributed to the need for pruning, such as building beneath the crown of a tree when suitable alternatives were available. The applicants' house was in its present location when they purchased the property and they have not caused the risk of limb failure or the risk of damage arising from limb failure. Therefore the respondents shall pay for the works.

Orders

18 Based on the foregoing, the Court makes the following orders. The numbering system used for limbs follows onsite discussion with the parties. Pruning is also indicated in attached photographs.

(1) The application is upheld.

(2) Within 60 days of the date of these orders the respondents are to engage and pay for a suitably qualified arborist (minimum AQF level 3), with appropriate insurances, to prune the tree to achieve the following:

(a) Removal of two major limbs (Limb 1 and Limb 4), pruning to their branch collars at the stem;

(b) Reduction of two major limbs (Limb 2 and Limb 5), pruning to suitable lateral branches (see attached photographs);

(c) Removal of dead branches greater than 40 mm in diameter;

(d) Pruning of any crossing and rubbing branches; and

(e) Pruning of any other branches that the arborist identifies as hazardous while carrying out (2)(a)-(d).

(3) The works in (2) are to be done in accordance with AS4373 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(4) The respondents are to give the applicants (and others in the street whose property access may be affected by the works) at least one week's notice of the works in (2).

(5) The applicants are to provide all access required during reasonable hours of the day for the works in (2) to be completed.

(6) Every two years (beginning 2016) within 30 days of the anniversary of the date of these orders the respondents are to engage and pay for a suitably qualified arborist (minimum AQF level 3), with appropriate insurances, to prune the tree to achieve the following:

(a) Removal of dead branches greater than 40 mm in diameter;

(b) Pruning of any crossing and rubbing branches; and

(c) Pruning of any other branches that the arborist identifies as hazardous while carrying out (6)(a) and (b).

(7) The works in (6) are to be done in accordance with AS4373 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(8) The respondents are to give the applicants (and others in the street whose property access may be affected by the works) at least one week's notice of the works in (6).

(9) The applicants are to provide all access required during reasonable hours of the day for the works in (6) to be completed.

____________________________

D Galwey

Acting Commissioner of the Court

PHOTOGRAPHS

 

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Decision last updated: 18 August 2014