Land and Environment Court New South Wales

• Medium Neutral Citation: Owners of SP 37485 v Owners of SP 4193 [2014] NSWLEC 1185
• Hearing dates: 8 September 2014
• Decision date: 08 September 2014
• Jurisdiction: Class 2
• Before: Moore SC

Decision

Application dismissed

• Catchwords: TREES: Likelihood of injury
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2007
• Category: Principal judgment
• Parties: Owners of SP 37485 (Applicant; Owners of SP 4193 (Respondent)
• Representation: Mr M Powis, agent (Applicant); Mr R Rutherford, agent (Respondent)
• File Number(s): 20451 of 2014

Judgment

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

1 These proceedings are an application pursuant to Part 2 of the Trees (Disputes Between Neighbours) Act 2007 concerning a Melaleuca of substantial size, approximately 1.2 m in diameter at breast height, located slightly uphill and on the adjacent property to the property whose strata plan has made the application.

2 The application is based on a risk of injury - a fear held by the strata plan on behalf of its two owners in the dwellings within it. Each of those dwellings has a bedroom that is in the vicinity of the spread of the canopy of the tree. The tree is a substantial Melaleuca being of the order of 10 m or so in height. It has multiple leaders with the first bifurcation of the trunk occurring at about 2.5 m above the ground. The tree is growing on a comparatively confined space between the two strata plans' buildings; it is adjacent to but not touched by the fence line between the two allotments and is immediately adjacent to a pathway running along the side of the building upon whose allotment it is located.

3 The evidence in the proceedings comprises the application that has been made by the strata plan seeking an order for removal together with that which is able to be observed during this inspection of the site.

4 The application for an order to remove the tree is not opposed by the strata plan upon which it is located.

5 There is some buckling of the path between the tree and the building upon whose allotment the tree is located.

6 The uncontradicted evidence of the representatives of the two strata plans is that there is a soil depth of approximately 600 mm at the front and rear of the properties and it is reasonable to assume that there is a similar soil depth at the location of the tree.

7 It is important, in this context, to note that the application is not based on any suggestion of damage to the common property of the applicant strata plan.

8 I have carefully examined the tree; there is no sign of any weakness of any attachment of any of the leaders at the point of attachment to the major trunk structure of the tree. The branches are all, in essence, perpendicular.

9 The only branch that overhangs to any extent be either of the elements of the strata plan that is the applicant, does not have a significant weight load at its end through its leaf structure. I have paid particular attention to its point of attachment to the main body of the tree and there is no sign of included bark or any other weakness.

10 The tree appears to be of good vigour and health.

11 There is no sign of lifting of the root plate at all and there is no sign of any other form of structural weakness or of any fungal or other attack on the structure of the tree.

12 It is again important to note in this context that I am not dealing with an application based on damage to the adjoining property, merely on the risk of injury to the occupants of the two elements of that strata plan.

13 It is not uncommon in proceedings such as these for there to be honestly held fears by those persons resident in the vicinity of a tree that the tree will fail and cause injury to them or their property. We do not question in proceedings such as these the honesty of those fears and I certainly do not question the sincerity with which they are held in this instance.

14 The role of the Court however is to consider the likelihood of those fears being realised and only if there is some foreseeability of those fears being realised does the Court have jurisdiction to intervene and order removal of the tree or any other intervention with it. There is such basis here.

15 In this instance, as the parties are in agreement that the tree should be removed, that is a matter that is capable of being pursued in a non-coercive fashion through an application to the local council.

16 There is, however, in these proceedings, no basis why the Court should order the removal the tree and the application is dismissed.

Tim Moore

Senior Commissioner

Decision last updated: 08 September 2014