Land and Environment Court
New South Wales
- Medium Neutral Citation:
- Gilliland v Hall [2011] NSWLEC 1189
- Hearing dates:
- 7 July 2011
- Decision date:
- 07 July 2011
- Jurisdiction:
- Class 2
- Before:
- Galwey AC
- Decision:
-
(1)The application regarding Tree 2, the Paperbark, is dismissed.
(2)The application regarding Tree 1, the Port Jackson Fig, is upheld in part.
(3)The respondents are to engage and pay for an arborist, with a minimum AQF level 3, to prune Tree 1, removing all deadwood greater than 30 mm diameter and reducing the eastern part of the crown by between 20% and 30% of its foliar mass. This work is to be done in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry and AS 4373 (2007) Pruning of Amenity Trees.
(4)The works in (3) are to be completed within 60 days of the date of these orders.
(5)The respondents are to engage and pay for an appropriate tradesperson to remove and replace the fence panel adjacent to Tree 1, so that the fence panel is vertical, is on the boundary, and there is at least 100 mm clearance between the bottom rail and all parts of the tree.
(6)The tree is not to be cut or damaged when carrying out the works in (5).
(7)The works in (5) are to be completed within 60 days of the date of these orders.
(8)The respondents are to give the applicant at least two days notice of the works in (5).
(9)The applicant is to provide all necessary access during reasonable hours to allow completion of the works in (5).
- Catchwords:
- TREES [NEIGHBOURS] - damage to property - injury to persons - pruning ordered - fence to be repaired
- Legislation Cited:
- Trees (Disputes Between Neighbours) Act 2006
- Cases Cited:
- Yang v Scerri [2007] NSWLEC 592
- Category:
- Principal judgment
- Parties:
-
M Gilliland (Applicant)
C and E Hall (Respondents) - Representation:
-
M Gilliland (Applicant in person)
C and E Hall (Respondents in person)
- File Number(s):
- 20223 of 2011
Judgment
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
1This is an application pursuant to Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by the owner of a property in Magnolia Street, Kirrawee, against the owners of two trees growing on an adjoining property.
2The applicant seeks orders for removal of two trees: the first of which he contends is causing damage to the fence along the common boundary, may cause damage to his shed, and may cause injury; the second of which he contends may be damaging the fence.
3The respondents wish to retain both trees for the amenity they provide.
Evidence and submissions
The Fence
4The onsite hearing began on the applicant's property. The applicant pointed out the disruption to the line of the fence adjacent to the larger tree, which shall be referred to as Tree 1.
5The fence is a colourbond fence approximately 1.9 m high and around ten years old, running north-south along the common boundary shared by the applicant and respondents.
6Looking along its length, the fence is not completely straight. The top of the fence is displaced to the west (into the applicant's property) at a join between two panels, being the first join to the north of the trees. There is a similar amount of displacement of the top of the fence further to the south, well away from the trees, for which the cause is unclear.
7From the respondents' property the applicant indicated the buttress roots of Tree 1 growing beneath the fence and pushing against its bottom rail.
8Despite the displacement, the fence is sound. It does not appear likely that it will fail in the foreseeable future to such an extent that it would let dogs escape from either garden.
The shed
9The applicant stated that there was no evidence of root growth beneath the shed, no evidence of damage to the shed, and nothing that could be seen indicated that damage to the shed is likely in the foreseeable future.
The trees
10Tree 1 is a 12 m tall Ficus rubiginosa (Port Jackson Fig) growing in the rear garden of the respondents' property. It is adjacent to the common boundary, so that its buttress roots are against the bottom rail of the fence. The tree's crown is healthy, with dense foliage and good growth rates. There are three dead branches (pointed out by the applicant) in the crown - one on the north side leaning on the respondents' shed, a second higher up on the north side, and a third higher again on the south side. All three dead limbs are over the respondents' property only and are likely to fall into the respondents' property only.
11The tree leans to the east so that approximately 90% of its crown is over the respondents' property. The tree forks just above ground level. The northern stem has an extensive area without bark or cambium on its western side, extending for some 2 m up the stem. The exposed wood has early signs of decay. Due to the tree's lean, any risk it poses is to the respondents' property.
12The tree provides shading and visual screening to the respondents. It can be seen from the street.
13Tree 2 is a 10 m tall Melaleuca quinquenervia (Paperbark) to the south of Tree 1. It is healthy and structurally sound. The tree is near to, but not against, the fence. No evidence was shown that the tree has caused or is likely to cause damage or injury.
Jurisdiction
14According to s 10(2) of the Act, to make any orders regarding a tree the Court must first be satisfied that the tree 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.
15If satisfied of this, the Court can make any orders it sees fit as described in s 9 of the Act, considering the matters listed in s 12 of the Act.
16As there was no evidence that Tree 2, the Paperbark, 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, the Court cannot make any orders regarding this tree. The application regarding Tree 2 is dismissed.
17Turning to Tree 1, I am satisfied that the growth of roots against the fence rail has contributed to the displacement of a panel of the colourbond fence.
18I am also satisfied that a dead limb falling from the tree may cause injury to someone in the respondents' property.
19As the Court can therefore make orders regarding this tree, I must consider the matters in s 12 before determining the application.
20I consider the matters that are relevant here to be the following.
(a) The tree is situated entirely within the respondents' property, adjacent to the common boundary. It is not unreasonably close to any premises.
(b) Under normal circumstances consent would be required from Sutherland Shire Council to interfere with the tree.
(b2) Pruning within the guideline of Australian Standard AS 4373 (2007) Pruning of Amenity Trees would not adversely affect the tree.
(b3) The tree contributes to the amenity of the respondents' land and provides shade to the rear garden and visual screening to the electrical tower to the north.
(d) The tree may make some contribution to the local ecosystem, albeit minor.
(e) The tree contributes to the scenic value of the land on which it is situated.
(f) The tree can be seen from the street, so makes a contribution to public amenity.
(h)(i) The fence is ten years old and has other areas of displacement along its length.
(i)(ii) The respondents have had the tree pruned in the past and, more recently, had the tree inspected. Their opinion is that the tree does not pose a significant risk to them.
Summary of issues
21In summary, there are several issues, outlined below, that lead me to a decision.
22The fence is damaged. The tree has contributed to that damage. The extent of damage is relatively minor and does not prevent the fence performing its functions - marking the boundary, providing privacy to both properties and preventing dogs escaping from either garden. Furthermore it appears unlikely that the fence will cease to perform these functions in the near future. (The principle stated in Yang v Scerri [2007] NSWLEC 592 regarding the interpretation of 'the near future' to be a period of 12 months from the time of the hearing is applicable in this matter.)
23This is not to say that the applicant does not have a right to a straight fence that does not lean into his property. However removal of the tree seems disproportionate to the extent of damage.
24Removal of the tree is not required to repair the fence, nor to prevent further damage. The single panel of fence next to the tree could be replaced in such a way as to allow and maintain clearance between the fence and tree roots for many years, preventing root growth causing further displacement.
25There is no evidence that damage to the shed is likely within 12 months, so preventing damage to the shed is not an aim of any orders.
26There is some risk of injury to people within the respondents' property arising from the few dead limbs and perhaps from decay in the stem. This does not require tree removal but can be mitigated by pruning, for instance deadwood pruning and weight-reduction pruning on the eastern side of the tree's crown.
Orders
27Considering all of the foregoing, the orders of the Court are:
(1)The application regarding Tree 2, the Paperbark, is dismissed.
(2)The application regarding Tree 1, the Port Jackson Fig, is upheld in part.
(3)The respondents are to engage and pay for an arborist, with a minimum AQF level 3, to prune Tree 1, removing all deadwood greater than 30 mm diameter and reducing the eastern part of the crown by between 20% and 30% of its foliar mass. This work is to be done in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry and AS 4373 (2007) Pruning of Amenity Trees.
(4)The works in (3) are to be completed within 60 days of the date of these orders.
(5)The respondents are to engage and pay for an appropriate tradesperson to remove and replace the fence panel adjacent to Tree 1, so that the fence panel is vertical, is on the boundary, and there is at least 100 mm clearance between the bottom rail and all parts of the tree.
(6)The tree is not to be cut or damaged when carrying out the works in (5).
(7)The works in (5) are to be completed within 60 days of the date of these orders.
(8)The respondents are to give the applicant at least two days notice of the works in (5).
(9)The applicant is to provide all necessary access during reasonable hours to allow completion of the works in (5).
D Galwey
Acting Commissioner of the Court
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 11 July 2011