Land and Environment Court New South Wales

• Medium Neutral Citation: Stasch v Darvodelsky [2011] NSWLEC 1173
• Hearing dates: 27 June 2011
• Decision date: 27 June 2011
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application upheld in part; pruning of one tree ordered

• Catchwords: TREES [NEIGHBOURS]; potential damage to property/ injury to persons from falling dead wood
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Yang v Scerri [2007] NSWLEC 592
• Category: Principal judgment
• Parties: Mr K Stasch (Applicant); Mr P Darvodelsky (Respondent)
• Representation: Applicant: Mr K Stasch (litigant in person); Respondent: Mr S Blanks (Solicitor); SBA Lawyers
• File Number(s): 20204 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 s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in St Ives against the owner of trees growing on an adjoining property.

2 The application form contains a detailed discussion of the orders sought and the reasons why. In summary, the applicant appears to seek the following orders:

(1) The immediate removal of dead wood and then annual removal of dead wood from 8 gum trees on the basis of risk of damage or injury;

(2) The pruning back of all branches overhanging the applicant's property in order to restore sunshine to the applicant's property and to prevent damage to property and injury to persons;

(3) The inspection, by a certified arborist, of the respondent's trees for internal decay and the strength of the root systems presumably to prevent damage to property or injury to persons; and

(4) Compensation of a sum of $7000 for the cost of the applicant's time in searching for the respondent (who currently resides interstate).

3 With respect to the orders sought, the diagram and the table in the Tree Dispute Claim Details (exhibit B) show 4 trees to be the subject of the application and not 8. It was resolved that 4 trees are to be considered. It was also noted by the parties that the location of the trees in the diagram is inaccurate. The photograph on page 2 of exhibit PD1 in Exhibit 1 is a more accurate plan although the trees are not numbered.

4 With respect to part of order 2, Part 2 of the Trees Act does not apply to light so that part of the claim is dismissed. With regards to order 4, Commissioners do not have the jurisdiction to award costs of this nature.

5 After some discussion on site, the orders sought by the applicant are the dead wooding of 4 trees and their subsequent maintenance every 1 -2 years. These orders are sought on the basis of preventing damage to the applicant's property or injury to anyone on the applicant's land.

6 Before turning to the individual trees, Mr Blank, solicitor for the respondent, raised some objections to some of the material in the applicant's evidence; in particular, press clippings and articles from the internet regarding tree/ branch failures in Australia and overseas. The applicant contends the material goes to supporting his case that tree failures do occur. Mr Blanks contends that the material demonstrates the subjective fears of the applicant and does not represent the facts of the matter before the Court. Similarly, the applicant raised concerns over the admissibility of a tree report on a tree that has since been removed from the respondent's property. Mr Blanks stated that the report goes to demonstrate his client's responsible attitude to tree maintenance. A degree of latitude is afforded self-represented litigants however, the relevance of all evidence is considered and some may be given little if any weight. I also note that a significant amount of material in the applicant's evidence is of little relevance to the jurisdictional matters the Court must consider.

7 The four trees subject to the application were inspected from both properties. They are all healthy mature specimens of locally indigenous species; given their size they are likely to be remnants of the original vegetation retained when the respondent's dwelling was constructed in 1967. I saw no obvious structural defects and all trees have less than 5% dead wood in their canopies.

8 Tree 1 is a Eucalyptus pilularis (Blackbutt). It is the easternmost tree in a roughly linear row of three trees to the west of the respondent's dwelling. The other trees are an Angophora floribunda (Rough-barked Apple) and another Blackbutt. The canopies of these trees intermingle however the applicant is only seeking orders with respect to one of these trees. The canopy of tree 1 barely overhangs the applicant's property.

9 Tree 2 is an Angophora costata (Smooth-barked Apple) growing about 2 m to the south of tree 3, a Blackbutt. These trees are shown in photograph 1 on page 4 of exhibit PD1 included in exhibit 1. I note that little if any of tree 3 overhangs the applicant's property. There is some dead wood in tree 3 but not close to the applicant's property. Whilst about less than 10% of tree 2 overhangs the applicant's property there is some terminal dead wood in that portion of the canopy and nearby.

10 Tree 4 is a large Blackbutt at the rear of the respondent's dwelling. It too has a small percentage of dead wood. Less than 5% of the canopy overhangs the applicant's property. At the hearing the applicant expressed a concern about the potential failure of the whole tree onto his property. His concern arises from pruning works undertaken on the tree at least 12 years ago which he contends 'unbalanced' the canopy. I saw no signs that would lead me to conclude that this fear is likely to be realised.

11 The applicant showed the Court a collection of dead branches he said had fallen from the trees since 23 December 2009. It was on that date that a 705 g branch fell from a tree, thought to be tree 2, and narrowly missed the applicant who was working in his garden at the time. The largest branch (shown in a black and white photograph in exhibit B) was retrieved from the respondent's property. The majority of the dead branches had a diameter of about 20-40 mm. Apart from branches that had bark patterns consistent with being from the Angophora costata , the applicant was unable to say from which trees the branches had fallen.

12 The applicant stated that no injury had been caused by any of the trees. With respect to damage he stated that a cracked tile, presumably damaged by a fallen branch, was replaced on a portion of the roof over the garage however how and when the damage occurred was not explained and no evidence was produced to substantiate the statement.

13 Of some relevance may be the fact that a large E. saligna (Sydney Blue Gum) was removed, with council permission, from the respondent's property in 2009. This tree was relatively close to the applicant's dwelling (and internal garage).

14 Under s 10(2) of the Act, the Court must not make an order unless it is satisfied that any of the trees 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. These tests must be applied to each tree subject to the application.

15 As the applicant is seeking orders to prevent future damage or injury, the guidance decision published in Yang v Scerri [2007] NSWLEC 592 was brought to the applicant's attention. 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.

16 Mr Blanks contends that no orders should be made as the applicant has failed to demonstrate that any of the trees satisfy any of the tests in s 10(2). He submits that the applicant's fears are subjective and not based on fact. The applicant's position is that he is right to be concerned about the failure of branches and he is seeking nothing more than regular preventative maintenance. [It is noted that the applicant does not seek the removal of any live branches and no mention was made at the hearing of the failure of live branches.]

17 Considering each of the trees, with respect to tree 1, whilst there is a very small percentage of dead wood in tree 1 and there is a slight overhang onto the applicant's property, I saw no evidence that would lead me to conclude that this tree poses a risk of damage to the applicant's property or of injury to any person, particularly anyone on the applicant's land, in the foreseeable future. There is no evidence to show that this tree has caused damage or injury in the past. Therefore as none of the tests under s 10(2) are satisfied for tree 1, no orders can be made for any intervention with this tree, including an inspection by an arborist. For the same reasons I make the same findings for trees 3 and 4. Therefore the application with respect to trees 1, 3 and 4 is dismissed.

18 With respect to tree 2, as previously noted, there is some terminal dead wood in the portion of the tree closest to the applicant's property. Putting the applicant's case at its highest, I am prepared to accept that when this dead wood fails, as it predictably will, it could cause damage to the applicant's property - being fruit trees located beneath the canopy, or potentially injury to anyone in the vicinity. I am satisfied that at least 2 of the dead branches collected by the applicant have the characteristic bark type of tree 2. Therefore as two of the tests under s 10(2) are met, the jurisdiction is enlivened with respect to tree 2 and the Court may consider what, if any, orders are appropriate.

19 Before making any orders, the Court must consider a number of matters in s 12 of the Act. Relevant to this case are:

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

(b) Ku-ring-gai Council's Tree Preservation Order protects the tree.

(b2) The removal of dead wood will have no detrimental impact on the tree as long as it is removed in accordance with AS4373.

(b3,e,f) The tree contributes to the scenic value and natural landscape of the land on which it is growing and to the locality. It and the other trees on the respondent's property contribute to the landscape character of the area.

(d) As a locally indigenous species and probable remnant it will contribute to the local ecosystem and to biodiversity.

(h,i)(ii) The respondent has engaged arborists to inspect and work on his trees.

20 In considering the evidence before me, I find it is reasonable to order the removal of dead wood from the part of tree 2 closest to the applicant's property. As already noted, the failure of dead wood is predictable and there are several dead branches in the portion of the tree that overhangs or is close to an area of the applicant's garden that appears to be relatively frequently occupied. I consider dead-wooding the tree every two years sufficient to minimise the risk of harm from falling dead branches.

21 With respect to the orders sought for regular inspections of the trees, I saw no evidence that would warrant any such orders of the Court.

22 As a consequence of the forgoing, the Orders of the Court are:

(1) The application is upheld in part.

(2) The respondent is to engage and pay for an AQF level 3 arborist to remove dead wood down to 20mm in diameter from the canopy of the southern trunk of tree 2 - the Angophora costata .

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

(4) The work is to be completed within 60 days of the date of these orders.

(5) The applicant and the respondent's tenants are to be given at least 3 working day's notice of the commencement of the work.

(6) The applicant and the respondent's tenants are to provide all reasonable access to enable the work to be carried out 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: 30 June 2011