Land and Environment Court New South Wales

• Medium Neutral Citation: Taylor v Guttenberg [2011] NSWLEC 1159
• Hearing dates: 22 June 2011
• Decision date: 22 June 2011
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application upheld in part; pruning of dead wood ordered; removal of tree refused

• Catchwords: TREES [NEIGHBOURS] damage to property; injury to persons
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Yang v Scerri [2007] NSWLEC 592
• Category: Principal judgment
• Parties: P & K Taylor (Applicants); M & J Guttenberg (Respondents)
• Representation: Applicants: P&K Taylor (Litigants in person); Respondents: M & J Guttenberg (Litigants in person)
• File Number(s): 20131 of 2011

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 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owners of a property in Yarrawarra in the Sutherland Shire against the owners of a tree growing at the rear of an adjoining property.

2 The applicants are seeking orders for the removal of the tree on the basis that the whole tree or parts of the tree may fall onto their property and may cause damage to their property or injury to themselves or their visitors.

3 The respondents value the tree for a number of reasons and do not wish to remove it.

4 Mr Jim Van Breda, Tree Management Officer from Sutherland Shire Council, was in attendance to provide assistance with respect to past applications made by various parties about the tree under council's Tree Preservation Order.

5 The tree was inspected from both properties and binoculars were used to view the upper portions of the crown. It is a mature Eucalyptus scoparia (Wallangarra White Gum) in good health with no obvious structural defects. It is thought to be at least 25 years old.

6 The tree is growing at the rear of the respondents' property on the edge of a retained terraced area. There is an informally constructed sandstone retaining wall about 1m high at the edge of the terraced area built at the time the respondents' dwelling was constructed in about 1983. Below this wall is an engineered crib retaining wall in several sections built on the applicants' property. It is noted that the respondents purchased their property about 5 years ago.

7 The applicants' property is a battleaxe block cut into the steep slope below the respondents' property and the adjoining property to the north. The applicants' property is bounded to the east and south by bushland on Crown land. The applicants purchased their property in 1979 and the dwelling was completed in 1984.

8 The tree overhangs part of the south-western corner of the applicants' property. In this corner is a gazebo directly beneath the tree, a paved area (partially overhung) and a turfed area on which the clothesline is located. The canopy of the tree is just short of the nearest edge of the clothesline. In the bushland to the south of the clothesline and in close proximity to it and the turfed area is a dead leader of a Bloodwood as well as other dead trees and branches.

9 According to the applicants, this corner of the property is the main outdoor entertaining area. The gazebo is built close to the corner formed by the retaining walls. There was some dispute between the parties as to when the gazebo was constructed however it was certainly constructed after the tree was well-established.

10 At the hearing the applicants provided details of the photographs included in their tree dispute claim. There are several photographs showing branches that fell from the tree between November 2010 and January 2011. In November 2010 two live branches fell from the tree; one landed on the clothesline and the other on the paved area. Whilst no damage or injury occurred the respondents were not informed of the branch drop. Despite searching the canopy with the aid of binoculars, it was not clear as to where the branches failed.

11 Other photographs show elements of dead wood on the paved area and adjacent to the gazebo. A number of dead branches were observed during the hearing. The live and dead branches shown in the photographs and observed on site had a maximum diameter of about 30-40mm.

12 When asked, the applicants stated that in the time since they have lived there (about 26 years) only 2 live branches of any notable size have fallen from the tree onto their property.

13 From the respondents' property, the sites of previous branch removals were noted. Mr Van Breda informed the court of the previous applications and approvals. In 2007 council allowed a 20% thinning of the canopy for increased solar access to the neighbour to the south of the respondents. Approximately 10 years ago, the applicants were allowed (by the previous owners) to remove two large limbs that overhung their property. In 2010 the council granted conditional approval for the removal of the tree. One condition was the owners' consent; this has been refused.

14 Whilst on the respondents' property I observed the area in which the tree is growing and saw no obvious signs that would indicate the instability of the tree.

15 Under s 10(2) of the Act, 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. If any of the tests under s 10(2) are satisfied, the Court must then consider the relevant clauses under s 12 of the Act.

16 If orders are warranted, s 9 of the Act empowers the Court to make any orders it thinks fit to remedy, restrain or prevent damage to property, or to prevent injury to any person, as a consequence of the tree subject to the application.

17 In this matter the applicants are seeking orders to prevent future damage or injury. In a guidance decision published in Yang v Scerri [2007] NSWLEC 592 the rule of thumb regarding the interpretation of 'the near future' is deemed to be a period of 12 months from the time of the hearing. This is a period I consider appropriate in this matter.

18 Whilst there is evidence that 2 live branches and several dead branches have fallen onto the applicants' property in recent times, no damage or injury has been caused. The two live branches in the photographs in exhibit B are the only 2 live branches of any size to have fallen in the 26 years since the applicants have lived in their dwelling.

19 A visual assessment with the aid of binoculars did not show any unusual or suspect branch attachments that would indicate the predictable failure of any live branch of any size likely to cause damage in the near future or injury. Similarly, on the evidence before me I saw no evidence to suggest the likelihood of whole tree failure.

20 There is a small and normal amount of dead wood in the tree. While no injury or damage has occurred to date, it is not unreasonable given the predictable failure of dead wood, the height from which it could fall and the nature of the use of the area below the tree, that it could cause injury to any person. Therefore, putting the applicants' case it highest, I am satisfied that one of the tests in s 10(2) is met and the jurisdiction is therefore enlivened and orders may be considered.

21 In determining what orders should be made, the Court must consider a number of matters in s 12 of the Act. The relevant clauses are:

(a) The tree is wholly located on the respondents' property;

(b2) The removal of dead wood will have no detrimental impact on the tree;

(b3) The tree contributes to the amenity of the respondents' property;

(d) Whilst not a local species, it will make a contribution to biodiversity; the respondents provided photographs of several species of birds that visit their property;

(e) The tree contributes the scenic value of the land on which it is growing;

(f) The tree can be seen from the street and its canopy contributes to and is compatible with the landscape character of the locality and therefore as value to public amenity;

(h)(i) The applicants chose to build a gazebo beneath the canopy of the tree;

(h)(ii) Pruning has been undertaken on the tree; and

(i)(i) There is a large dead leader in a tree in the reserve in close proximity to the clothesline that could cause injury.

22 In conclusion, whilst I am satisfied that falling dead wood could cause injury to any person, the orders sought by the applicants are disproportionate to the risk the tree poses. However, as determined in Hinde v Anderson & anor [2009] NSWLEC 1148 should the circumstances change a fresh application can be made.

23 Therefore with respect to the forgoing, the Orders of the Court are:

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

(2) The respondents are to engage and pay for an AQF level 3 arborist with appropriate insurances to remove all dead wood down to 15mm in diameter from the portions of the tree that overhang the applicants' property to a distance of 2m inside the respondents' property.

(3) The work is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry and AS4373:2007: Pruning of Amenity Trees.

(4) The work is to be completed within 90 days of the date of this judgment.

(5) The applicants are to be given at least 3 working day's notice of the commencement of the works.

(6) The applicants are to provide all reasonable access for the works to be undertaken in a safe and efficient manner.

(7) Orders (2), (3), (5) and (6) are to be carried out every 2 years within 2 weeks either side of the anniversary of the first pruning.

__________________________

J Fakes

Commissioner of the Court

Decision last updated: 23 June 2011