Land and Environment Court New South Wales

• Medium Neutral Citation: Murphy v Maggio [2014] NSWLEC 1166
• Hearing dates: 12 August 2014
• Decision date: 21 August 2014
• Jurisdiction: Class 2
• Before: Galwey AC; Durland AC

Decision

The application is upheld. See orders at paragraph (23)

• Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage; injury; application upheld; tree removal ordered
• Legislation Cited: Trees (Disputes Between neighbours) Act 2006
• Cases Cited: Hinde v Anderson & anor [2009] NSWLEC 1148
• Category: Principal judgment
• Parties: P Murphy (Applicant); N Maggio (Respondent)
• Representation: P Murphy, litigant in person (Applicant); N Maggio, litigant in person (Respondent)
• File Number(s): 20291 of 2014

Judgment

The Application

1 This is a decision of both Acting Commissioners.

2 An application has been made by Mr Murphy (the applicant), a property owner and resident in Caringbah, in relation to the mature Eucalyptus racemosa (Scribbly Gum) located near the common side boundary with, and within the front yard of, the adjacent property to his south. The tree is approximately 20 metres in height and has a trunk diameter exceeding one metre.

3 Mr Murphy has applied to the Court pursuant to Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) seeking orders for the removal of the tree.

4 The owner of the tree, Mr Maggio (the respondent), is now in agreement that the tree should be removed, despite earlier wanting to retain it.

5 Mr Murphy wants the tree removed as he states that the tree has a history of limb drop and he is concerned about further damage to his dwelling and possible injury to persons.

6 Mr Murphy has provided information to the Court in relation to the past damage he attributes to the tree including damage to the roof and powerlines (1996), damage to the roof and ceiling (1998), fence damage (2001) and a large branch failure that impacted the powerlines (2005). Mr Murphy is not claiming any compensation in this regard.

7 In relation to Mr Murphy's concerns about possible injury to persons he pointed out that there is a High School located near the end of the street and that students regularly walk under the canopy of the tree as it overhangs the footpath. Mr Murphy also stated that he was concerned about the safety of the children that reside at the respondent's property. Mr Murphy's concerns in this regard were rekindled as a result of an incident in early 2014 in which several branches fell onto the public footway.

8 Mr Maggio stated that he is in agreeance that the tree should now be removed. He pointed to displaced pavers on his property and also stated that he was concerned about future damage to his dwelling and injury to his children.

History

9 Mr Murphy made a previous application to the Court in 2008 (20037 of 2008) for an order for the removal of the tree. At the time Mr Murphy provided information relating to branch failures that he stated had caused property damage.

10 At the time of the 2008 application Mr Maggio indicated that he did not want to remove the tree. He stated that, should the Court make an Order that the tree be pruned, he did not need a long period of time to deal with that, but that if the Court was to order the removal of the tree he would need a longer period of time. Mr Maggio also stated that he approached Sutherland Council for permission to remove the tree and that permission had been denied, although Mr Maggio was granted permission to prune the tree.

11 The Court Order made in relation to the above-mentioned application was that the respondent was to have the tree pruned. The branches to be removed were overhanging the footpath, powerlines and adjacent property. The pruning as ordered has since been undertaken.

12 In March 2014, prompted by the most recent branch failures, Mr Maggio applied to Sutherland Council (TP14/0293) for the removal of the tree. The determination was that application was refused "to comply with the Land and Environment Court Order 20037 of 2008". The environmental and amenity values of the tree were also cited as reason for the determination.

13 The current application to the Court is possible as the circumstances have changed since the Court determined the earlier application (Hinde v Anderson & anor [2009] NSWLEC 1148). The tree has shed several limbs since the previous application.

Jurisdiction and findings

14 Mr Murphy has provided documentation and images to the Court to support his claims that the tree has caused damage to his property. We accept that fallen branches from the tree have been the cause of the damage as stated.

15 Both Mr Murphy and Mr Maggio stated on site that the most recent branch failures that resulted in failed limbs landing on the public footway had heightened concerns in relation to possible injury to persons.

16 We noted, on site, that within the canopy there were many sites indicating branch failures. The branch failures appear to have occurred over an extended period of time as some of the points of failure were sealed or partially sealed and others presented as being recent. The cause of the limb failures was not determined.

17 We noted the location of the tree and close proximity to the dwellings, front yards, public footway, powerlines and roadway.

18 We are satisfied that the tree concerned has caused damage and is likely in the near future to cause damage to the applicant's property. We are satisfied that the tree is likely to cause injury to a person.

19 The applicant has made several attempts to reach agreement with the respondent (and agreement has been reached).

20 Pursuant to paragraphs 18 and 19, matters under Section 10 of the Act have been satisfied and the Court has jurisdiction to make orders.

21 Consideration has been given to the discretionary matters under s 12 of the Act. The tree is large and contributes to local environmental values and to public amenity. The extent of pruning required to reduce the risk sufficiently would, in our view, make the tree no longer viable in the long term, would detract from its landscape value, and would require ongoing management that would be onerous for the respondent. We find that removal of the tree is appropriate in this situation.

22 We note that the parties now agree that the tree should be removed and that an application for its removal to Sutherland Council was refused. The Court's jurisdiction is not to be used as a means for bypassing a local council's consent requirements. Usually, if there is no dispute between the parties and orders are being sought from the Court to bypass consent requirements, we would be unlikely to make such orders. However in this case we note that Sutherland Council recently refused to grant consent for tree removal so as to comply with the Court's previous orders. There may be some confusion regarding Council's perceived obligation not to contradict Court orders, but we cannot test this as Sutherland Council has made no submissions in regard to this application. Nevertheless, the Court now has jurisdiction to make further orders for this tree. Having considered all relevant matters, including Council's recent determination, we are satisfied that orders should be made.

Orders

23 Therefore the orders of the Court are:

(1) The application is upheld.

(2) The respondent shall arrange and pay for the removal of the Scribbly Gum located in the front garden of his property to a height of no greater than 500mm above ground level

(3) The tree shall be removed within 30 days of the date of these Orders.

(4) The works in (2) shall be undertaken by a suitably qualified and experienced arborist (minimum AQF Level 3) with appropriate insurances and in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(5) The applicant shall provide for reasonable access to his property if required for the tree removal to be undertaken.

(6) The respondent shall give reasonable notice to the applicant if such access is required.

____________________________

D Galwey

Acting Commissioner of the Court

____________________________

L Durland

Acting Commissioner of the Court

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Amendments

21 August 2014 - Durland AC added
Amended paragraphs: Coversheet

Decision last updated: 21 August 2014