Land and Environment Court New South Wales

• Medium Neutral Citation: Bellette v Rubin & ors [2014] NSWLEC 1080
• Hearing dates: 9 May 2014
• Decision date: 09 May 2014
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Orders for removal - see paragraph [18]

• Catchwords: TREES [NEIGHBOURS] Damage to property; injury to persons
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Thornberry & Anor v Packer & Anor [2010] NSWLEC 1069
• Category: Principal judgment
• Parties: Ms J Bellette (Applicant); Mr T Rubin (First Respondent); Mr J & Ms D Burnett (Second & Third Respondents)
• Representation: Applicant: Ms J Bellette (Litigant in person); First Respondent: Ms M Rubin (Agent); Second & Third Respondents: Mr J Burnett (Litigant in person/ agent)
• File Number(s): 20033 of 2014

Judgment

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

1 COMMISSIONER: The applicant has applied under s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) seeking orders for the removal of a Liquidambar growing on an adjoining property. She asks that the respondent pay for the removal, as well as for damage to the dividing fence she alleges has been caused by the tree.

2 Since the filing of the application the respondent's property has been sold. One of the new owners attended the on-site hearing. Leave was granted to join the new owners as the second and third respondents. In these circumstances, the new owners cannot be expected to contribute to any costs arising from proceedings that commenced before they owned the property (see Thornberry & Anor v Packer & Anor [2010] NSWLEC 1069). However as access may be required if any orders are made, it is necessary that new owners be joined.

3 The applicant contends:

• Roots have lifted a section of concrete path;
• Roots cracked and blocked stormwater pipes;
• On several occasions, falling branches damaged roof tiles; on one occasion this lead to water damage and mould on the ceiling;
• Leaves have blocked the downpipe;
• The tree has damaged the timber dividing fence;
• Leaves and fruit from the tree create a slipping hazard; and
• Branches falling from the tree may cause injury.

4 Apart from damage to her own property, the applicant raised concerns that the tree is growing over a storm water easement that serves a number of properties. In the past, a blockage of the drain resulted in flooding of her property. She alleges that the Liquidambar was a cause of this blockage.

5 The first respondent does not wish to remove the tree. Apart from valuing the tree for its shade, the respondent is concerned about the financial cost of removing a large tree from a relatively restricted area of the property. The respondent stated that he has contributed to costs of root pruning, branch pruning and roof repair. On a number of occasions he and his wife have assisted with clearing branches from the applicant's roof as well as sweeping up leaves. The flooding of the storm water pipe was due to other factors that have since been rectified.

6 In March 2014, the applicant engaged an arborist, Mr Mark Bulless to prepare a report for the purpose of the application. The report is of very poor quality and provides no assistance to the applicant or the Court.

7 With the arboricultural expertise I bring to the Court I make the following observations. The tree is a mature Liquidambar about 20m tall. It is growing at the rear of the respondents' property and is within a metre or so of the dividing fence. The applicant's property is down slope of the tree and the respondents' property.

8 A number of lower branches have been removed, however parts of the tree overhang the applicant's property. At about one metre above ground, the trunk bifurcates. The stem closest to the respondents' dwelling bifurcates again at about 2.5m above ground. Where both of these bifurcations arise there is a significant bark inclusion. This is a structural defect completely missed by Mr Bulless. The top 4m or so of the stem closest to the applicant's property is dead and a portion of it has detached and is hanging in the upper canopy.

9 In my experience, the nature of the bark inclusions between each of the co-dominant major stems is such that these are not likely to stabilise as there is little evidence of cambial fusion or self-grafting, and over time, the risk of failure will increase. Failure of any one of the stems would result in serious damage to either or both properties and potentially very serious injury. While I don't think failure is imminent it is reasonably foreseeable. There is no cost-effective way of managing the defect.

10 In applications under Part 2, 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.

11 There is no dispute between the parties that the tree has caused damage to the applicant's property. I am satisfied on the evidence provided by the tree itself that damage in the near future could arise by the failure of the dead wood at the top of the tree. As stated above, a more significant failure in the future is also possible.

12 As s 10(2) is met, the Court's power under s 9 to make any orders it thinks fit is engaged. This requires consideration of a number of relevant discretionary matters under s 12 of the Act.

13 The tree contributes to the amenity and scenic value and of the respondents' property. Liquidambars are a common feature and part of the landscape character of the leafy environs of Turramurra. The tree is part of the canopy and to that extent contributes to public amenity.

14 One possible option is to remove the dead top of the stem closest to the applicant's property. While this would remove the part most likely to fail, it would leave a large wound and would not deal with the structural issue at the base of that stem. Removal of the whole stem closest to the applicant's property would leave a very large wound and would leave the remaining weakly attached stems potentially more vulnerable to wind loading. In my opinion, the responsible action is to order the removal of the tree.

15 It is the usual practice to require the tree owner, in this case the first respondent, to pay for the removal. While I appreciate this will be expensive, and I accept that the respondent has made contributions towards the rectification of past damage, I am not satisfied that there are any grounds to require the applicant to contribute to this cost. However, orders will be made for both the applicant and the new owners to provide all reasonable access for the purposes of quoting and removal. It might be that the contractor may require access from one or both of the properties as a considerable volume of material will have to be moved. In addition, as the issue is to make the tree 'safe', there is no need to remove the tree to ground level; this will save costs. As long as the remaining stump is poisoned to prevent regrowth, removing the trunk to about 3m above the ground will abate the risk of future failure.

16 In regards to the fence, according to the applicant it could be 20 years old. It runs across the slope between the parties' properties. In the vicinity of the Liquidambar the fence leans towards the applicant's property however the palings, rails and posts appear in reasonable condition. Elsewhere along the fence there is some displacement as well as dislodged palings. The condition of the fence appears consistent with its age and materials. The applicant was unable to provide any evidence to support her contention. While it is possible that the tree has contributed in some way, it is also equally possible that soil and water pressure over the years has also caused the displacement. I am not satisfied to the necessary extent, either jurisdictionally or as a matter of discretion that any orders should be made for any contribution by the first respondent to the repair or replacement of the fence and that element of the application is dismissed.

17 Should the new owners wish to replace the fence, the usual arrangement under the Dividing Fences Act 1991 is that neighbours share the cost. However, no orders will be made under the Trees Act.

18 After considering the evidence and the parties' submissions, the Orders of the Court are:

(1) The application is upheld in part.

(2) Within 60 days of the date of these orders the first respondent is to engage and pay for an AQF level 3 arborist, with proof of appropriate insurance cover, to remove the Liquidambar at the rear of 8 Bowen Avenue, Turramurra. The tree is to be removed to a point no higher than 3m above ground and the remaining stem is to be poisoned to prevent regrowth.

(3) The work is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(4) The new owners and the applicant are to provide all necessary access on reasonable notice for the purpose of quoting and for the safe and efficient carrying out of the work.

(5) Exhibit B to be returned.

______________________

Judy Fakes

Commissioner of the Court

Decision last updated: 12 May 2014