Land and Environment Court New South Wales

• Medium Neutral Citation: Filla v Wilson [2011] NSWLEC 1265
• Hearing dates: 29 August 2011
• Decision date: 29 August 2011
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application for pruning upheld; orders made for biennial removal of dead wood.

• 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: H & R Filla (Applicants); I & N Wilson (Respondents)
• Representation: Applicant: Mr H Filla (Litigant in person); Respondents: Ms N and Mr I Wilson (Litigants in person)
• File Number(s): 20380 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 owners of a property in West Pymble against the owners of a tree growing on an adjoining property.

2 The tree is a mature Angophora costata located at the rear of the respondents' property. Part of the tree overhangs a 'granny flat' and shed at the rear of the applicants' property that have been there for about 25 years.

3 The applicants are seeking orders for the making safe of the tree on the basis that it has caused damage to the roof of the granny flat and is likely to continue to do so. They are also concerned that it may cause injury to anyone in the vicinity.

4 The options suggested by the applicants for making the tree safe are either the reduction in height of the tree, removal of overhanging branches, removal of dead wood, or the removal of the tree. The applicants contend that any work should be at the respondents' expense.

5 The respondents consider that the tree is healthy and if anything was to be ordered it should be at the applicants' expense.

6 The tree was inspected from both properties. It is a mature specimen in healthy condition with no obvious structural defects. About 5% of the canopy is dead wood in parts of the tree consistent with a normal healthy individual of this species. Given its size and location it is likely to be a remnant of the original vegetation.

7 The applicants state in their application that over the years, dead wood has fallen from the tree onto their property. In March 2009, shortly after the respondents had purchased their property, the applicants wrote to the respondents advising them of the ongoing problems they had had with dead wood falling from the tree and cracking the tiles of the flat below.

8 In April 2011, an insurance assessor inspected the roof of the flat in response to a claim the applicants had made on their insurance policy for water damage to the ceiling and cornices of the flat. The applicants considered that the water damage was due to cracks in several tiles caused by falling dead branches.

9 I note that the insurance assessor indicated the absence of capping on the roof however it is not unreasonable to assume that falling dead wood had cracked the tiles.

10 In May 2011 the applicants wrote to Ku-ring gai Council regarding a large piece of dead wood that fell from the tree.

11 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. As the applicants are concerned about future damage, a guidance decision published in Yang v Scerri [2007] NSWLEC 592 determines the 'near future' to be a period of 12 months from the date of the hearing. I consider this timeframe to be appropriate in the circumstances of this matter.

12 I am satisfied that dead wood falling from this tree has caused damage to the roof of the applicants' flat and could continue to do so. The dying of branches, particularly at their ends, is a normal and predictable feature of the growth of Angophoras and their relatives the Eucalypts. Therefore, as s 10(2) is satisfied, the jurisdiction is enlivened and the Court may make orders.

13 Section 9 of the Act provides the Court with a degree of flexibility in the making of orders, but before doing so, the Court must consider a number of discretionary matters under s 12 of the Act. Relevant in this matter are:

(a) The tree is wholly located on the respondents' property. In the majority of matters determined under the Trees Act, any orders for any intervention with the tree require them to be carried out at the tree owner's expense. Even though the respondents contend that they have taken it upon themselves to remove overhanging branches from their other neighbours' trees at their own expense, there is no requirement under the Trees Act for this to be imposed on the applicants.

(b) The tree is likely to be protected by Ku-ring gai Council's Tree Preservation Order however the orders of the Court do not require permission from the council for the carrying out of any orders.

(b2) The removal of deadwood from the tree will have no detrimental effects on the tree's health or structural integrity if it is carried out in accordance with AS4373 - 2007: Pruning of Amenity Trees.

(d) As previously stated, as the tree is likely to be a remnant of the original forest community it will make a contribution to biodiversity and to the local ecosystem.

(e)(f) The tree makes a contribution to the visual amenity of both the respondents' property and to the public as it forms part of the canopy that contributes to the landscape character of the locality.

(h)(i) Whilst there are 3 pine trees, 2 of which are dead, on the applicants' property near the shed, it is the Angophora that directly overhangs the flat.

(h)(ii) The applicants have placed a tarpaulin over the roof of the flat in order to provide some protection to the tiles.

14 The evidence indicates that only dead wood falling from the tree has caused damage to the applicants' property. As there are no obvious defects in any of the other branches (including those overhanging the applicants' property) or on any other part of the tree, it is reasonable that only dead wood be removed from the tree. Reducing the height of the tree is not practical and would most likely lead to structural problems. There is no need to remove the entire tree as it appears structurally sound and makes a contribution to the locality.

15 Therefore as a consequence of the forgoing, the Orders of the Court are:

(1) The application to interfere with the tree is upheld in part.

(2) The respondents are to engage and pay for an AQF level 3 arborist to remove all dead wood down to 50mm in diameter from all parts of the tree that overhang the applicants' property to a distance of 2m within the respondents' property.

(3) The work is to be completed within 60 days of the date of this judgment.

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

(5) Should the arborist require it, the applicants are to provide all reasonable access for the work to be carried out in a safe and efficient manner.

(6) The respondents are to give the applicants at least 3 working days notice of the commencement of the works.

(7) Orders 2, 3, 5 and 6 are to be carried out every 2 years between 1 September and 30 October.

________________________

J Fakes

Commissioner of the Court

Decision last updated: 08 September 2011