Land and Environment Court New South Wales

• Medium Neutral Citation: Green & Anor v Dyson & Anor [2011] NSWLEC 1057
• Hearing dates: 4 March 2011
• Decision date: 04 March 2011
• Jurisdiction: Class 2
• Before: Hewett AC

Decision

1. The application to remove the tree is upheld.

2. The tree is to be removed to a point not more than 600mm from ground as measured from the respondents land.

3. The removal is to be undertaken by an Arborist with at least AQF level 3 qualifications in arboriculture and with appropriate insurances including NSW WorkCover insurance.

4. To the extent that it is necessary to effect the removal of the tree the applicant is provide access through his property provided on reasonable notice and at a reasonable hour of the day.

5. The cost of the removal is to be born by the respondent.

6. The removal of the tree provided for in (1) is to be completed within 60 days of the date of these orders.

• Catchwords: TREES [NEIGHBOURS]: injury to persons
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Dooley & Anor v Neville (2007) NSWLEC 715; Robson v Leischke [2007] NSWLEC 152 at 175 Preston CJ
• Category: Principal judgment
• Parties: W L & R A Green (Applicants); W & W Dyson (Respondents)
• Representation: W L & R A Green [litigants in person] (Applicants); W & W Dyson [litigants in person] (Respondents)
• File Number(s): 20876 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 pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006.

2 The application is made by Mr Green the owner of a light industrial allotment in Jura Street Heatherbrae, concerning a tree located on the adjacent property to the west. That property is also a light industrial allotment and is owned by Mr Dyson.

3 The applicant seeks orders for the removal or severe pruning of the respondents' tree as he contends that it poses a risk to his property and to persons on his land.

4 The applicant purchased his land some time between 1999 and 2000. The land at that time was undeveloped and supported a number of remnant native trees. He undertook to remove all of the trees on his allotment in preparation for building works. At the time of the hearing his land was part developed and contained a single large storage shed with the surroundings areas of bare compacted soil.

5 The respondents' land has been substantially developed comprising a light industrial storage shed, office building and extensive concrete pavement.

6 The tree in question is a mature Gum ( Eucalyptus spp) situated about 1 m from the common boundary between the two properties. The tree is retained in a 1.5m wide linear garden bed that borders the respondent's driveway along the common boundary. It is a solitary remnant tree of the original open forest and is the only tree on the respondents' land. The tree is more than 20 m in height and more than 20 m in crown spread on the north-south axis, and some 15 m on the east-west axis. The crown extends approximately 4-5 m over the applicants' property above an area that the applicant says he plans to construct an approved concreted area for storage and vehicle parking adjacent to his workshop. As a condition of his development consent he is also required to construct a 2 m wide garden bed in the vicinity of the respondents tree.

7 The applicant contends that the tree contains termites and he believes they are the cause of the dieback of branches at the extremities of the canopy and he is concerned at the volume of dead and live branches that regularly fall onto his property in the area where he has development approval to install a concrete parking area.

8 The applicant tendered six photographs of the respondents' tree, two of which he had taken in 2000. He says that the two photographs taken in 2000 show there was no crown dieback at that time. He asserts that the remaining four photographs taken more recently show that the tree has declined significantly since 2000. At the on site hearing he pointed out a number of dying branches in the upper canopy of the tree. On my observations, these branches appeared to correspond with branches depicted in the other four photographs.

9 The applicant pointed to a substantial number of dead branches and a few small live branches on the ground beneath the tree. He said this material had accumulated in the past two weeks. He contends that the continuous shedding of such branches prevents him from using the area for storage or parking and is a risk to him.

10 Before proceeding I will address the matter of termites since the applicant contends that the presence of termites is reason to order the removal of the tree. In Dooley & Anor v Neville (2007) NSWLEC 715 the Court gave a Tree Dispute jurisdictional finding concerning animals birds and insects. This finding concluded that the Court does not have power under the Act to make orders in response to property damage or risk of injury to persons where that property damage or risk of injury has or would arise from a tree attracting or hosting an animal, bird or insect.

11 In 2009 the respondent agreed to the removal of the tree and signed an application for removal to be submitted to Port Stephens Council by the applicant. On 4 May 2009 Council issued a permit to remove the tree.

12 The tree was not subsequently removed as the applicant and respondent could not reach agreement as to who should remove the tree and who should pay for the removal. The Council permit expired in May 2010.

13 In recent years the respondent and the applicant have each undertaken to prune branches from the tree and numerous pruning cuts are evident throughout the crown. Some of these cuts have been at the branch collar and others are flush cuts or poorly executed step cuts.

14 The respondent tendered an arborist's report that he says he relied on in forming his opinion that the tree is safe and does not pose any risk.

15 The report by Mr Domink Roth of Arbor Tree & Garden Solutions was prepared at the respondent's request in November 2010.

16 There are significant deficiencies in the arborist's report and I refer to s 15 of Sch 7 of the UPCR relating to expert witness reports. The parts relevant to these proceedings state:

(1) An expert's report must (in the body of the report or in an annexure to it) include the following:

(b) the expert's reasons for each opinion expressed,

(f) any examinations, tests or other investigations on which the expert has relied, including details of the qualifications of the persons who carried them out,

17 Mr Roth does not indicate how he came to the opinions expressed in his report. He states the scope of his report to be a hazard appraisal using the Visual Tree Assessment methodology but he does not detail any examinations, tests or other investigations undertaken in the course of his appraisal. He identified the tree as a Bangalay Gum (Eucalyptus botryoides) but fruit capsules I observed in the litter beneath the tree were not those of a Bangalay.

18 Mr Roth did not acknowledge the short summary of the Practice Directions for Expert Witnesses obligations contained in Direction 14 in the Directions of the Court and made in these proceedings.

19 On the whole I find the report is predominantly unsubstantiated opinion, and is significantly lacking in detail and therefore of little if any assistance to the Court.

20 With the aid of binoculars I made observations of the tree from the applicants and the respondents land. I estimate the tree to be well in excess of 60 years old. The trunk DBH exceeds 1 m. Although the foliage appears healthy, the canopy contains a significant amount of epicormic branch growth. There is considerable dieback in branches at the extremities of the canopy. I estimate the volume of dead wood in the crown to be in excess of 20%. The tree has been pruned of lower and mid crown branches over a number of years and numerous pruning wounds are evident some of which show evidence of decay and termite activity. The fruiting body of a bracket fungus is evident growing out of one such pruning wound on the applicant's side of the tree. The trunk exhibits a significant bulge on its southern side where there is a partially occluded vertical wound of some 6-700mm in length indicating a potential internal defect in the lower trunk. This wound also has termite workings on the outer surface. The ground beneath the tree on the applicants land is compacted soil and gravel and appears to have been raised from original soil level by approximately 300mm. The respondent's property has been progressively concreted with the exception of a small area of some 20 sq m beneath the tree where completion of a concrete driveway has been withheld pending the outcome of this application. The respondent said he would be prepared to mulch that small area if it would benefit the tree.

21 I am of the view that the tree has been progressively declining for a number of years and that it poses an increasing risk of injury to persons. The size of the dead wood that has recently fallen is sufficient to cause injury and the amount and size of poorly attached epicormic branch growth is significant and sufficient to cause injury to persons on the applicants land and in particular on the respondents land since the bulk of the canopy is carried above his land.

22 Regarding injury to persons, in Robson v Leischke [2007] NSWLEC 152 at 175 Preston CJ states that the phrase 'likely injury' can be to "any person" (s 7 and s 10(2)(b)). His Honour says the phrase is ample enough to include the applicant but the person need not be the applicant. Persons who might be likely to be injured could be on adjoining land on which the tree is situated.

23 I have formed the view in this matter that persons on the respondents land are as, or more likely to be injured by the tree or part of it failing, as persons on the applicant's land.

24 I am satisfied on the basis of my observations that the tree is likely to cause injury to persons and as a result Courts jurisdiction is enlivened under s 10(2)(b) of the Act, and orders can be made.

25 Before determining an application the Court is to consider matters under s 12 of the Act and the relevant matters are as follows:

(a) the tree is located wholly on the respondents land.

(b2) the severity of pruning that would be required to minimise the risk injury from falling dead wood and the risk of periodic and unpredictable detachment of epicormic branches to an acceptable level would largely destroy the tree, and therefore pruning is not a satisfactory strategy in responding to the risk.

(b3) the tree does contribute shade to the respondents property until approximately mid morning.

(d) as a remnant of the original forest the tree does contribute to the local ecosystem and to biodiversity.

(e) the tree is visible from surrounding industrial properties and the street.

(f) the tree has intrinsic value to public amenity.

26 The orders of the Court are:

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

(2) The tree is to be removed to a point not more than 600mm from ground as measured from the respondents land.

(3) The removal is to be undertaken by an Arborist with at least AQF level 3 qualifications in arboriculture and with appropriate insurances including NSW WorkCover insurance.

(4) To the extent that it is necessary to effect the removal of the tree the applicant is provide access through his property provided on reasonable notice and at a reasonable hour of the day.

(5) The cost of the removal is to be born by the respondent.

(6) The removal of the tree provided for in (1) is to be completed within 60 days of the date of these orders.

Philip Hewett

Acting Commissioner of the Court

Decision last updated: 16 March 2011