Land and Environment Court New South Wales

• Medium Neutral Citation: Grego v Bordas [2011] NSWLEC 1182
• Hearing dates: 4 July 2011
• Decision date: 04 July 2011
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application to remove tree refused; pruning of one branch ordered.

• Catchwords: TREES [NEIGHBOURS]; damage to property
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Category: Principal judgment
• Parties: Mr E Grego (Applicant); Mrs E and Mr S Bordas (Respondents)
• Representation: Mr E Grego (Applicant in person); Mr A Bordas (Agent for the Respondents)
• File Number(s): 20305 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 Cranebrook against the owners of a tree growing at the rear of an adjoining property.

2 The applicant is seeking the removal of the tree on the basis that it may cause damage to his property. The applicant relies on the findings in an arborist's report prepared by Mr Lawrie Smith, Consulting Arborist.

3 The background to this application appears to be that the applicant applied to Penrith City Council for permission to remove the tree. The basis for the applicant's concern is that the tree moves in the wind and there is a fear that the tree, or a large branch of the tree, may fall onto the applicant's house. The applicant stated that no damage has yet occurred but he and his wife both report that numerous dead branches have fallen onto their property over the years.

4 It appears that the council advised the applicant to obtain an arborist's report and to seek mediation. The respondents did not reply to the request for mediation.

5 On 14 February 2011, Mr Smith inspected the tree, a Eucalyptus microcorys (Tallowwood), and reported on its condition. Of relevance is what he describes in his report (Exhibit C) as "the wide spreading branch on the south-eastern side of the crown". This, he says, "has a weak union with the main trunk and overhangs the backyard of No 48 [the applicant's property]". Further, he states, "dead and live vertical suckers which have formed from epicormic growth along the length of this wide spreading branch are frequently shed into the backyard of No 48".

6 Photographs of the branch and its condition are shown in Plates 3 and 4 of his report.

7 In reading the report, I can find no basis upon which the statement about branch shedding is made but can only assume that the applicant informed him.

8 Mr Smith considers that the tree has at some stage lost its central leader and has subsequently produced 3 co-dominant stems with 'weak junctions'. The 'water shoots' arising from the south-eastern branch he says are typically weakly attached and easily dislodged in storms.

9 Mr Smith concludes that the tree has a safe life expectancy of 'Z5' - described in an appendix as 'not suitable for retention due to severe damage or structural defects that cannot be properly addressed by remedial care...'. While this method is a hybrid of methods for assigning retention values, it nonetheless summarises his conclusion. He recommends the removal of the tree within 0-5 years. He considers that whilst the removal of the south-eastern branch would eliminate the risks associated with its immediate failure, he states because future growth would be redirected elsewhere in the tree this would 'almost certainly' result in the formation of another weak union and therefore the whole tree should be removed. He also considers that the removal of the branch would increase the wind loading on the remaining canopy.

10 I inspected the tree from both properties and used binoculars to closely view the attachment of the south-eastern branch and others throughout the canopy. The condition of the tree is generally as described in Mr Smith's report.

11 I note that the base of the south-eastern branch does have included bark between it and the adjoining stem - this is what Mr Smith describes as a 'weak junction'. There is also a slight twist in the attachment. Of some concern is the unusual and relatively fresh fracturing of the bark plates near the base of the branch. The fracture pattern and the alignment of the branch raise concerns over its stability. Should it fail it is of a size that would cause substantial damage to a shed on the applicant's land and also to a shed on an adjoining property.

12 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.

13 In this matter I am satisfied that the south-eastern branch could, in the near future, fail and cause damage to the applicant's property. Therefore as one of the tests in s 10(2) is satisfied, the jurisdiction is enlivened and the Court may consider what, if any, orders are appropriate.

14 However, in the making of orders, the Court must consider a number of matters under s 12 of the Act. The following clauses are relevant in this case:

(a) The tree is wholly located on the respondents' property but overhangs several adjoining properties including that of the applicant.

(b3) I do not agree with Mr Smith that the removal of the south-eastern branch will unduly affect either the structural integrity of the tree or its health. Mr Smith provides no basis for his prediction that a future defect will arise as a result of the removal of the branch.

(b3,e,f) The tree contributes to the amenity and scenic value of the respondents' property and as it can be seen from several nearby streets it also has value to public amenity.

(d) Whilst the tree is not a local species, it will contribute to biodiversity and to the local ecosystem.

15 In considering what orders should be made, I saw no evidence that would lead me to conclude that the whole tree should be removed. While there are other areas of included bark throughout the tree I saw nothing that would indicate their likely failure in the near future. However I am satisfied that the south-eastern branch is at risk of failing and it should be removed.

16 As the branch is quite substantial and it overhangs the applicant's property, it is likely to be more practical and efficient for the bulk of the material to be removed via the applicant's property. To facilitate this, orders will be made to ensure access through the applicant's property should it be required by the contractor.

17 Therefore as a consequence of 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 insurance to remove the south-eastern branch identified in Plates 3 and 4 of the Smith report and reproduced in this judgment.

(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 90 days of the date of these orders.

(5) The applicant is to provide any arborists all reasonable access on sufficient and reasonable notice for the purpose of quoting.

(6) The respondents are to give the applicant at least 3 working day's notice of the commencement of the work.

(7) The applicant is to provide all reasonable access to enable the work to be completed in a safe and efficient manner including the taking of cut material through the applicant's property to the street.

J Fakes

Commissioner of the Court

PHOTOGRAPHS 3 AND 4

Decision last updated: 05 July 2011