Land and Environment Court New South Wales

• Medium Neutral Citation: Patrick v Szeto [2011] NSWLEC 1215
• Hearing dates: 5 July 2011
• Decision date: 05 July 2011
• Jurisdiction: Class 2
• Before: Hewett AC

Decision

(1)The claims for compensation are refused.

(2)The respondent is to engage and pay for an AQF level 3 arborist with all necessary insurances, to remove from the tree canopy all dead wood down to a basal diameter of 30mm.

(3)The work in (2) is to be completed within 120 days of the date of these orders.

(4)The work in (2) is to be undertaken annually within two weeks either side of the anniversary of the first pruning.

• 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: Alexander John Patrick (Applicant); Paul David Szeto (Respondent)
• Representation: Alexander John Patrick (Applicant in person); Paul David Szeto (Respondent in person)
• File Number(s): 20242 of 2011

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1. This is an application pursuant to s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Eastern Valley Way, Castle Cove against the owner of tree growing on an adjoining property.

2. The applicant seeks orders for the removal of branches that overhang his property from the neighbour's tree and orders to maintain the tree to prevent future damage to property.

3. The applicant also seeks orders for the payment of compensation for damage to an umbrella, a ridge cap and tile, guttering and the repair of a section of fence, and the cost of Court filing fees.

4. I informed the parties that Commissioners are not authorised to determine costs and therefore I would not be making a determination on that element of the applicants claim.

The site hearing

5. The respondent was represented at the onsite hearing by his son Mr Szeto

6. The respondents' tree is a large mature Blackbutt (Eucalyptus pilularis) situated toward the centre of his rear garden. The tree exceeds 20 metres in height and 15 metres in spread. It is comprised of four primary trunks, three of which are about 1 metre in diameter and one is about 800mm diameter. The lesser diameter trunk grows toward the applicant's property extending the uppermost branches across the common boundary by about 3 metres. These branches overhang the applicant's paved patio, seating and barbeque area in the rear garden.

7. I inspected the tree from both properties. The tree appeared healthy and structurally sound. I saw nothing to indicate structural weakness in the trunks or the primary branches. The tree contained less than 5 percent dead wood overall, and the dead wood it did contain appeared less than 20mm in diameter. I could not see any dead wood in the branches overhanging the applicant's property.

8. The respondent said he did not understand the applicants concern about the tree as he lets his children regularly play in the back garden near the tree. On my inspection from within the respondents rear garden I noted many dead branches up to 40 mm in diameter lying within the bark and leaf litter accumulated around the tree.

9. The applicant showed us a bundle of dead branches he had collected from his rear patio that he said had fallen from the tree in recent weeks. Two of these branches were of a size, sufficient in my view to cause injury to persons or to damage property.

10. The applicant says that about four years ago a dead branch fell and damaged a roof tile and ridge cap on the north-east corner of his roof. He says he subsequently repaired the tile and ridge cap at his own cost and now submits a claim for $160 for that work. As no tax invoice has been provided as evidence of this expenditure I dismiss this element of the claim.

11. The applicant also claims that in 2009 a dead branch from the tree damaged a panel in his lattice fence. He says that it was after this incident that he spoke to the respondent about the overhanging branches and the falling dead wood and asked him to take some action to prevent further damage and risk of injury.

12. The respondent says he acknowledged the damage to the fence panel and in 2009 he arranged to have the tree pruned of dead wood by a qualified arborist in accordance with Willoughby Council guidelines that he says permit pruning of up to 30 percent of the canopy in any one-year period.

13. The applicant claims that on the day of the pruning the arborist dropped a branch that subsequently damaged a panel in his fence.

14. The respondent submits that he and the contracting arborist each contributed $200 to the applicant in what he said was a good will gesture in consideration of the damage his contractor had caused.

15. In reply the applicant agrees that the respondent did pay him $200 but he disputes that the contractor had also paid him $200.

16. Under s 10(2)(a) of 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 applicants property. I note that the damage to the fence in this instance was a consequence of the contractor's activities and not a consequence of the tree itself.

17. The applicant claims compensation of $144 for the replacement of a patio umbrella that he says was damaged by dead wood from the respondent's tree in 2008. However, as he did not provide any evidence of the incident, or of the extent of that damage I am not minded to make any order for payment and that element of the claim is dismissed.

18. The applicant said that he sought relief only from the threat of dead branches falling although he would prefer to have all overhanging branches removed. He said no live branches had fallen onto his property.

19. Under s 10 (2) of the Act, the Court must not make an order under this Part unless it is satisfied that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicants property, or is likely to cause injury to any person.

20. As a result of my inspection and the evidence presented, I have no reason to conclude that the live branches that overhang the applicants rear garden are likely to cause damage in the near future, that being a period of 12 months, being a test that has been adopted in the past by the Court consistent with the guidance given in Yang v Scerri [2007] NSWLEC 592, or that live branches are likely to cause injury to any person.

21. However, on the evidence before me I am satisfied that dead wood falling from the respondent's tree has caused damage to the applicant's property and that falling dead wood is likely to cause injury to any person including persons within the respondents property.

22. As a consequence of the foregoing the Court has jurisdiction and orders can be made. However before determining an application the Court is to consider matters listed under s 12 of the Act. Relevant in this case are the following clauses:

(a) The tree is situated wholly on the respondents land.

(h) (ii) at the request of the applicant the respondent had the tree pruned of dead wood in 2009.

(j) the most recent damage to the lattice fence is a small indentation in the tubular top rail of the fence. The dent is of a relatively minor cosmetic nature that does not warrant repair or the replacement of the entire fence panel.

23. The orders of the Court are:

(1) The claims for compensation are refused

(2) The respondent is to engage and pay for an AQF level 3 arborist with all necessary insurances, to remove from the tree canopy all dead wood down to a basal diameter of 30mm.

(3) The work in (2) is to be completed within 120 days of the date of these orders.

(4) The work in (2) is to be undertaken annually within two weeks either side of the anniversary of the first pruning

Philip Hewett

Acting Commissioner of the Court

Decision last updated: 25 July 2011