Land and Environment Court New South Wales

• Medium Neutral Citation: Garraway v Prentice [2011] NSWLEC 1025
• Hearing dates: 10 January 2011
• Decision date: 10 January 2011
• Before: Hewett AC

Decision

1. The application to remove the trees is refused.

2. The respondent is to engage and pay for an AQF level 3 arborist with appropriate insurances, to remove all dead wood down to a basal diameter of 25mm from the two Sydney Bluegum (Eucalyptus saligna) trees situated close to the northern boundary and aligned approximately with the front steps leading to the respondent's house.

3. The work is to be carried out in accordance with AS 4373 Pruning of amenity trees and the WorkCover Code of Practice for the Amenity Tree Industry.

4. The work is to be completed within 30 days of the date of these orders.

5. The applicant is provide all reasonable access should this be required as long as 3 days prior notice is given.

6. The work in order 2 is to be repeated annually within two weeks of the anniversary of the first carrying out of the work in order 2.

• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Yang v Scerri [2007] NSWLEC 592
• Category: Principal judgment
• Parties: Ms L Garraway (Applicant); Ms L Prentice (Respondent)
• Representation: Ms L Garraway [litigant in person] (Applicant); Ms L Prentice [litigant in person] (Respondent)
• File Number(s): 20739 of 2010

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 s 7 of the Trees (Disputes Between Neighbours) Act 2006 made by the applicant Mrs Garraway who is the owner of a property in Berkeley Vale, against Mrs Prentice, the owner the neighbouring property to the south. Berkeley Vale is in the Wyong Council local government area.

2 Mrs Garraway is seeking orders for the removal or pruning of two trees on Mrs Prentice's land as she contends that branches falling from the trees have on many occasions broken her roof tiles causing the ingress of water and subsequent damage to her ceilings. She also contends that in the future falling branches may cause injury to persons on her property.

3 Although there are a number of trees on the respondent's land, some of which overhang Mrs Garraway's roof, she says she is particularly concerned with the two gum trees that stand close to the boundary between the properties.

4 For the purposes of this case I will refer to the two Eucalyptus saligna (Sydney Bluegum) as T1 and T2.

5 T1 stands about 2.5 metres from the boundary with the applicants land and about 8 -10 metres west of the respondents' front boundary. The tree is approximately 18 metres in height with a trunk diameter at breast height of about 950mm. T2 stands about 1.5 metres west of T1 and about 2 metres from the boundary. It is similar in height to T1 but with a lesser trunk diameter of about 700mm. Since the two trees are growing close together their crowns partially interlock to form an extensive canopy with a northerly bias that extends approximately 8 metres across the applicants tiled roof.

6 At the on site hearing Mrs Garraway tendered a letter signed by Mr Stewart who is the neighbour on her northern boundary. Mr Stewart was present at the on-site hearing.

7 Mrs Prentice said she had not seen Mr Stewarts' letter prior to the on site hearing. I asked her if she wished to read the letter and tell me if she had any objection to it being tendered. Mrs Prentice read the letter and said that she had no objection to it being tendered into evidence.

8 Three photocopied photographs in Mr Stewarts' letter show a branch protruding from a hole where a tile had been broken in the applicant's roof. Mr Stewart stated that he took the photographs on 30 November 2007 when he repaired the roof for Mrs Garraway.

9 Mrs Garraway said that Mr Stewart periodically checks her roof for damaged tiles and replaces broken tiles from a small reserve of tiles she retains.

10 Mrs Garraway said that about 2 years ago she and her grandson were in her back garden when a dead branch fell from one of the respondent's trees. The falling branch first struck her roof and then narrowly missed her and her grandson. As a result of this incident and of the regular falling of dead branches onto her roof, she says the two large gum trees on Mrs Prentices property present a danger to her house and to people who use the patio and rear garden.

11 The respondent's property contains a substantial number of large mature trees forming a canopy of some 15-18 metres in height to wholly enclose the property. This density of trees has contributed to trees T1 and T2 developing a substantial spread to the north and directly over the Mrs Garraway's tile roof.

12 Mrs Garraway said she was very concerned about the safety of the two large gum trees as she regularly hears branches hitting her roof.

13 At the on site hearing Mrs Garraway tendered a document from her insurance company detailing four claims made between 2001 and 2010. According to that document all of the claims involved roof damage caused by falling tree branches. The insurer paid three of those claims and Mrs Garraway withdrew one claim and undertook her own repairs with the help of Mr Stewart.

14 I inspected the two trees from the vantage of both properties and with the aid of binoculars to focus on branch attachments. The branches appeared normal with no indication of weakness. I saw no indication of potential weakness including cavities, fruiting bodies of fungus or abnormal growth that would indicate the need for further investigation. I estimated the amount of dead wood in each tree to exceed 15% comprising branches with a base diameter from approximately 25mm up to 90mm, and from 1.5 to 3 metres in length.

15 Mrs Garraway stated that she could not recall any incidences of live branch failure from either of the two trees. She said she was most worried about dead branches breaking tiles and penetrating her roof whenever the wind was strong.

16 Mrs Garraway pointed out a wide and densely foliated horizontal branch about 1 or so metres above her roof. This branch is from a small Ceiba speciosa (Floss Silk tree) situated on the respondents land and beneath T1 and T2. The branch has a spreading habit that covers part of the southern portion of Mrs Garraway's roof. Mrs Garraway said she did not seek the pruning of this branch, as she believed it acted as a partial buffer to some of the dead wood falling from the trees above it.

17 On viewing from the elevated vantage of the respondents land, three dead branches were clearly visible on the applicant's southern roof area. The largest of these branches was about 35mm diameter at the base and about 1.5 metres long. They were all of a typically smooth bark nature consistent with the character of Sydney Bluegum. There were a number of similar sized dead branches lying near the base of the trees and leaning against the boundary fence.

18 On Anzac Day 2010 Mrs Garraway sought SES assistance during heavy rain when a fallen branch had broken her roof ridge capping allowing water into the ceiling. The SES installed a temporary tarpaulin to the roof. New ridge cap tiles and additional roof tiles were later installed as part of her insurance funded repairs. These repairs were clearly identifiable at the time of the on site hearing.

19 At the hearing Mrs Garraway pointed to a number of newer looking tiles on the southern section of her roof. She said these tiles were replacements for tiles broken at various times by falling dead branches from the respondent's two trees.

20 Mrs Garraway said that she has few spare tiles remaining and is concerned that, since the tile type is no longer manufactured, she will be unable to retain the integrity of her roof when broken tiles have to be replaced in the future.

21 At the hearing both the applicant and respondent agreed that trees T1 and T2 require deadwood pruning. They also agreed that they did not wish to remove the trees. The applicant however contends that more roof damage will occur if dead wood is not removed.

22 Turning to s10 (1) of the Act, I am satisfied based on the evidence tendered at the hearing that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the trees are situated.

23 Under s10 (2) of the Act, the Court must not make an order unless it is satisfied that the trees have caused, are causing, or are likely in the near future to cause, damage to the applicant's property or are a risk of injury to persons. In, Yang v Scerri [2007] NSWLEC 592, a rule of thumb, which I consider is also appropriate here, puts the near future as being a period of 12 months from the date of the determination. Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of whether the damage or risk is sufficiently serious to warrant the intervention of the Court, and if so, what should be ordered and who should pay. These tests must be applied to each tree subject to this application.

24 I am satisfied from the evidence and from my own observations at the on site hearing, that trees T1 and T2 have each caused, and are likely in the near future, to cause damage to the applicants property, and are likely to cause injury to persons.

25 Before determining an application the Court must also consider a number of matters under s 12 of the Act. The relevant matters in this case are;

(a) The trees are situated wholly on the respondents land

(b3)The trees contribute protection from the sun and wind, and to the amenity of the land on which they are situated

(d) The trees are likely to be remnants of the original plant community and thus contribute to the local ecosystem and to biodiversity. Eucalyptus saligna (Sydney Bluegum) is listed in Wyong DCP 14 as a Keystone Species, which is described as "functionally important species in the wild life food chain"

(e) The trees contribute to the natural landscape and scenic value of the land on which they are situated and in the locality

(g) The height and spread of the two trees makes them clearly visible from the street and surrounding properties

26 I am also satisfied on the basis of the evidence and on my observations at the on site hearing that the damage to the applicants roof was a direct consequence of dead branches falling from the respondents trees T1 and T2.

27 I am satisfied, from my examination of trees T1 and T2, and on the evidence of past damage, and the nature of dead branches observed on the applicant's roof, that the trees are very likely to shed branches onto the applicant's tile roof in the near future.

28 I am therefore satisfied the Courts jurisdiction is enlivened and orders can be made.

The orders of the court are:

1. The application to remove the trees is refused.

2. The respondent is to engage and pay for an AQF level 3 arborist with appropriate insurances, to remove all dead wood down to a basal diameter of 25mm from the two Sydney Bluegum (Eucalyptus saligna) trees situated close to the northern boundary and aligned approximately with the front steps leading to the respondent's house.

3. The work is to be carried out in accordance with AS 4373 Pruning of amenity trees and the WorkCover Code of Practice for the Amenity Tree Industry.

4. The work is to be completed within 30 days of the date of these orders.

5. The applicant is provide all reasonable access should this be required as long as 3 days prior notice is given.

6. The work in order 2 is to be repeated annually within two weeks of the anniversary of the first carrying out of the work in order 2.

Philip Hewett

Acting Commissioner of the Court

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Decision last updated: 25 February 2011