Land and Environment Court New South Wales

• Medium Neutral Citation: Ward v Huang [2011] NSWLEC 1217
• Hearing dates: 16 May 2011
• Decision date: 21 July 2011
• Jurisdiction: Class 2
• Before: Dixon C; Hewett AC

Decision

(1)The application is upheld.

(2)The respondent is to arrange for and pay for the removal of the two Camphor laurel trees situated in the centre of the rear garden of 6 Dumaresq Street, Gordon. The trees are to be cut to a point no higher than 2 m above ground.

(3)The removal is to be completed within 30 days of the date of these orders.

(4)The removal is to be undertaken by an AQF level 3 arborist with appropriate insurances and in accordance with the requirements of the NSW Workcover Code of Practice for the Amenity Tree Industry.

(5)The applicant is to be given at least 3 days notice prior to commencement of the removals.

• Catchwords: TREES [NEIGHBOURS] risk of injury
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Robson v Leischke [2008] NSWLEC152; Chappell v Coyle (1985) 2 NSWLR 73
• Category: Principal judgment
• Parties: Mr J Ward (Applicant); Mr Chen Xin Huang (Respondent)
• Representation: Mr J Ward (Applicant in person)
• File Number(s): 20866 of 2010

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 Part 2 s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act), made by the owner of a property in Moree Street Gordon, against the owner of trees growing on an adjoining property in Dumaresq Street Gordon.

2 The applicant is seeking orders for the removal of two Camphor laurel trees situated on the respondent's land, as he contends that the trees have dropped large dead branches into his courtyard area, causing damage to an outdoor setting. He also contends that the trees are likely to cause injury to persons using his courtyard.

3 Ms Tamara Dunn who is the Strata Manager for the applicant's property assisted the applicant at the hearing.

4 The respondent did not attend the hearing.

5 The matter proceeded to hearing in the absence of the respondent because we are satisfied that the respondent has been served in accordance with the Assistant Registrar's orders for substituted service made on 31 March 2011; and, it is reasonably probable, if not certain, that the owner Mr Chen Xin Huang is aware of these proceedings and hearing today: Chappell v Coyle (1985) 2 NSWLR 73 per Yeldham J.

6 The evidence is that the Assistant Registrar on 31 March 2011, granted the applicant leave, pursuant to rule 10.14 of the Uniform Civil Procedure Rules 2005, to effect substituted service of his application under the Trees (Disputes Between Neighbours) Act 2006 (the Act), on the occupier of the adjoining property where the tree is situated. Under the Act, "owner of land" is defined in s 3(1) to include "the occupier of the land". The meaning of this section was discussed by the Court in Robson v Leischke [2008] NSWLEC152 at Para158 to 160.

7 According to the affidavits of service sworn by Tamara Angela Dunn on 8 April 2011 and 13 April 2011, and filed with the Court by the applicant, the orders for substituted service have been complied with.

8 The Assistant Registrar, in coming to her decision about substituted service, (based on the affidavit evidence dated 2 March 2011 and 28 March 2011 in support of the notice of motion), presumably, formed the opinion that it was reasonably probable, if not certain, that the proposed method of substituted service would be effective to bring the knowledge of the proceedings to the owner of the adjoining land.

9 Having reviewed that affidavit evidence, including a letter on the file signed by the respondent/owner Mr Chen Xin Huang and addressed to the applicant dated 9 February 2011- wherein the owner "...agree(s) to pull down trees which located in my properties (6-14 Dumaresq street, Gordon) and may cause damage to Mr Ward's property (5/5-9 Moree Street Gordon ..." - we have no reason to disturb the orders of the Assistant Registrar made pursuant to r 10.4 of Uniform Civil Procedure Rules 2005.

10 We commenced the hearing on site with a viewing of the trees from the courtyard of the applicant's unit. The unit is situated at the rear of the unit block and has a northerly aspect. The courtyard is the applicant's sole outdoor living area. It is mostly brick paved and contains a mesh covered seating area.

11 The trunk of the closer of the respondent's two trees stands about 2 m from the property boundary, which is defined by a capped timber fence some 1.8 m high. The second tree stands about 2 m north of the first tree. We will refer to the trees as T1 and T2, with T1 being closest to the fence.

12 The respondent's property is unoccupied and the rear garden has become substantially overgrown with trees, weeds and vines. There are a number of other trees in the rear garden and in proximity to the applicant's courtyard, including a large Canary Island Date Palm and a Sydney Red Gum (Angophora costata) , neither of which is of concern to the applicant.

13 Trees T1 and T2 are senescent Camphor laurel (Cinnamomum camphora ). We estimate their height exceeds 20 m and their respective trunk diameters are approximately 900 mm. Due to their close proximity, the trees have developed a single crown mass that we estimate to be about 19-20 m in diameter. As a result, the combined tree canopy substantially overhangs the applicant's courtyard.

14 Both trees are unhealthy as evidenced by dieback in the upper canopy, significantly thinning foliage density, chlorotic leaves and a substantial percentage of large dead branches. A number of very substantial dead branches are held directly above the applicant's courtyard and seating area.

15 The applicant showed us two dead branches on his courtyard paving that he says fell in the last few days. One of these branches had shattered on impact with the pavement and, in our opinion, was of a size that could cause damage or injury. A number of much larger dead branches remain attached to T1, the lowest being some 8 m above and extending more than 5 m across the courtyard. Another large dead branch some 8 m higher again is also aligned above the courtyard. The trunk of T1 contains a number of open wounds, branch tears and decaying branch stubs from past branch failures.

16 As a result of the forgoing observations, we formed the opinion that both T1 and T2 are over mature and declining. As such, we are satisfied that they meet the test under s 10(2)(b) of the Act, in that both trees are likely to cause injury to any person. As a result of this finding, the Court's jurisdiction is enlivened and the Court may make orders.

17 Before determining an application made under Part 2 of the Act, the Court is to consider matters listed in s 12 and the relevant matters in this application are as follows:

(a) The trees are located wholly on the respondent's land.

(i)(ii) The applicant has constructed a mesh cover over his outdoor seating area in order to reduce the potential impact of a branch failure. We do not consider that this cover would offer any realistic protection should any of the branches above the courtyard fall onto it.

(j) We have considered the prudence of ordering only the removal of dead branches from the two trees however in view of the declining health and structural condition of both trees we do not consider that this would adequately address the risk of injury to persons and therefore we consider it appropriate to order the removal of both trees.

18 We have considered our jurisdiction to deal with this matter in the absence of the respondent owner or occupier.

19 We propose ordering the removal of both trees, however since the respondent/occupier was not in attendance we will defer doing so until the Registrar has written to the respondent/occupier who was served with the application. Unless we hear from the respondent/occupier within 14 days of the registrar's letter any comment or an opportunity to be heard in respect of draft orders, the orders will issue in final form.

20 Following notification of the proposed orders in accordance with paragraph 19 above the respondent lodged a document entitled "Observations" on 27 June 2011.

21 We have considered the submissions in that document and note that the respondent submits that the proposed orders are unnecessary and contrary to the Court approved s34 agreement of 26 June 2009.

22 The proposed orders are made under the Trees (Disputes Between Neighbours) Act 2006. The order of the Court in respect of the s34 agreement of 26 June 2009 is not a relevant consideration in this appeal. The Trees (Disputes Between Neighbours) Act 2006 overrides all other legislation.

23 We have considered the matters raised by the respondent in respect of our proposed cost order and have decided not to award costs against the respondent in the circumstances of this case.

24 Accordingly, The orders of the Court are:

(1) The application is upheld.

(2) The respondent is to arrange for and pay for the removal of the two Camphor laurel trees situated in the centre of the rear garden of 6 Dumaresq Street, Gordon. The trees are to be cut to a point no higher than 2 m above ground.

(3) The removal is to be completed within 30 days of the date of these orders.

(4) The removal is to be undertaken by an AQF level 3 arborist with appropriate insurances and in accordance with the requirements of the NSW Workcover Code of Practice for the Amenity Tree Industry.

(5) The applicant is to be given at least 3 days notice prior to commencement of the removals.

Susan Dixon

Commissioner of the Court

Philip Hewett

Acting Commissioner of the Court

Decision last updated: 26 July 2011