Land and Environment Court New South Wales

• Medium Neutral Citation: Gray v Chan & Anor [2011] NSWLEC 1058
• Hearing dates: 10 March 2011
• Decision date: 10 March 2011
• Jurisdiction: Class 2
• Before: Galwey AC

Decision

(1) The application to remove the tree is upheld.

(2) The respondent is to engage and pay for an arborist, with a minimum AQF level 3, to remove the tree to no more than 200mm above ground level, in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(3) The respondent is to give the applicant at least seven days notice of the works in (2).

(4) The applicant is to provide all necessary access during reasonable hours to allow completion of the works in (2).

(5) The works in (2) are to be completed within 60 days of the date of these orders.

• Catchwords: TREES [NEIGHBOURS]; damage to property; injury to persons; removal ordered
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Yang v Scerri [2007] NSWLEC 592
• Category: Principal judgment
• Parties: J Gray (Applicant); R Chan & D Cheng (Respondent)
• Representation: J Gray [litigant in person] (Applicant); R Chan [litigant in person] (Respondent)
• File Number(s): 20938 of 2010

Judgment

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

1 ACTING COMMISSIONER: This is an application under Pt 2 s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by the owner of a property in Pymble against the owners of a tree growing on an adjoining property. Both the applicant and the respondent were self-represented.

2 The applicant contends that the tree poses a risk of damage to his property and a risk of injury, and seeks orders for the removal of the tree.

3 The respondent wishes to retain the tree and contends that it does not pose any significant risk.

Relevant Background

4 The applicant, who has owned the property for approximately five years, first raised his concerns about the tree with its previous owner. The respondent, who has owned the property for approximately one year, was first made aware of the applicant's concerns when the applicant engaged an arborist, Mr Mark Kokot of Priority Tree Services, to prepare a report on the tree. A copy of that report was sent to the respondent in August 2010.

5 Subsequently, the respondent agreed to remove the tree provided the applicant shared the costs of removal. The applicant agreed to share the costs provided a tree removal permit application was submitted to Ku-ring-gai Council and, if permission was granted, once an arborist was engaged to carry out the works. At the request of the respondent, the applicant deposited the permit application fee into the respondent's real estate agent's trust account. The respondent did not submit any application for a permit to remove the tree.

The tree and its situation

6 The Golden Cypress is in the front setback of the respondent's property, against the common boundary fence at ground level but located entirely on the respondent's land.

7 The tree is approximately 15 m tall and is in good health. It is multi-stemmed.

8 One central leader has been pruned back and its remaining dead stub is decaying. Decay spreads down to the area where the main stem to the northwest is connected, potentially weakening this union. This stem is one of the largest in the tree. It extends over the boundary and leans toward the front of the applicant's dwelling, where the main bedroom is located approximately 8 m from the tree.

9 There is a large hollow in the northeastern side of the stem, close to the area of decay above. There is a significant amount of reaction growth around the edges of this cavity, indicating extra stresses in this area.

10 Were this stem to fail it would most likely fall onto the applicant's dwelling, causing significant damage.

Jurisdiction

11 For the Court to make any orders it must be satisfied that the tree meets one of the tests under s 10(2) of the Act; namely that it 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.

12 The combination of defects in the large stem that grows over the applicant's property, and the proximity of these defects to each other, leads me to believe that there is a significant risk of the stem failing at its basal union.

13 In Yang v Scerri [2007] NSWLEC 592, the Court found that 12 months was a reasonable time to be considered as the 'near future'. I can see no reason to consider differently here. I am of the opinion that the Golden Cypress is likely to fail within this period. Therefore, one of the tests under s 10(2) is met and the Court can make orders regarding the tree.

14 The Court is not obliged to make the orders that are sought, but can make orders as outlined in s 9, considering the matters listed in s 12 of the Act.

Discretion

15 Turning to s 12, which lists the matters to be considered by the Court, I regard the relevant matters here to be:

(a) The tree is located entirely on the respondent's land.

(b) In the absence of s 6(3) the tree would require consent for any pruning or removal; such consent has not been obtained.

(b2) Pruning the tree to remove the hazardous stem would remove a large portion of the crown, leaving limbs with no foliage exposed to the north. This would be, and would remain, aesthetically unappealing, as new growth does not occur from old wood in this species. It would also lead to a risk of limb failure, as remaining limbs would lose shelter and protection and would thus be exposed to new wind loads. Therefore a risk of injury or damage would remain if the tree were only pruned.

(b3) The tree contributes to privacy and shading of the respondent's land.

(e) The tree contributes to the scenic value of the respondent's land.

Conclusions

16 In summary, I find that the tree poses a risk of damage to the applicant's property in the near future.

17 The pruning that would be required to prevent such damage would result in an ongoing risk of damage or injury from falling limbs.

18 The applicant has not contributed to the risk in any way.

Orders

19 Therefore, the orders of the Court are:

(1) The application to remove the tree is upheld.

(2) The respondent is to engage and pay for an arborist, with a minimum AQF level 3, to remove the tree to no more than 200mm above ground level, in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(3) The respondent is to give the applicant at least seven days notice of the works in (2).

(4) The applicant is to provide all necessary access during reasonable hours to allow completion of the works in (2).

(5) The works in (2) are to be completed within 60 days of the date of these orders.

David Galwey

Acting Commissioner of the Court

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Decision last updated: 18 March 2011