Land and Environment Court New South Wales

• Medium Neutral Citation: Drmota v Vujic [2011] NSWLEC 1317
• Hearing dates: 7 November 2011
• Decision date: 07 November 2011
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application to remove tree dismissed; orders made for pruning

• Catchwords: TREES [NEIGHBOURS] Future damage to property or injury to persons
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Yang v Scerri [2007] NSWLEC 592
• Category: Principal judgment
• Parties: Mr V Drmota (Applicant); G & S Vujic (Respondents)
• Representation: Applicant: Mr V Drmota (Litigant in person); Respondent: Mr G Vujic (Litigant in person)
• File Number(s): 20696 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 Gwynneville against the owners of a tree growing on an adjoining property.

2 The applicant is seeking the removal of a mature Eucalyptus botryoides x saligna on the basis that it may cause damage to his property or injury to someone.

3 The orders are sought because the applicant and his wife are concerned that branches from the tree, or the entire tree, may fall onto their property. These fears arise because of a large wound on the trunk of the tree and evidence of a wind-blown branch falling some distance from the tree.

4 The tree is growing near the north-western corner of respondents' property. Both parties purchased their properties about a year ago. In December 2010, the respondents received permission from Wollongong City Council to remove three of five trees growing in the backyard. The trees removed were a Pinus radiata and two dead Eucalypts. Removal was refused for a Brush Box and a Eucalyptus botryoides x saligna. The approval given for these trees was removal of dead wood only. A further note stated that retention/removal of the trees would be assessed when a proposed development application for the property was lodged.

5 There was a disagreement between the parties regarding the identification and location of the tree on the plan attached to the council's determination of the application made under the Tree Management Control Plan. The applicant contends that the tree is one of those nominated for removal; the first respondent disputes this. It would appear that the numbering on the plan is incorrect given the description of the species and their condition at the time of council's inspection. The tree in question is a Eucalyptus botryoides x saligna and it is certainly not dead. The other remaining tree is the Brush Box.

6 Therefore I am satisfied that despite the inaccuracy of the plan, the tree the subject of this application before the Court is the hybrid eucalypt specified by council for retention and pruning.

7 The first respondent stated that the removals and dead-wooding took place over 6 months ago.

8 In June this year, the applicant and his wife said they heard a loud bang on their roof and subsequently found a live branch of the eucalypt on the ground near the back door of the respondents' dwelling. There was a very strong wind blowing at the time. On the basis of this, the applicant is concerned that other branches may break off and cause damage to his property or injure someone. However, the main concern remains the possible failure of the entire tree. The applicant and his wife became aware of the wound on the tree when the Pine was removed.

9 The tree was inspected from both properties and binoculars were used for a closer view. Some loose material was removed from the wound and borer holes and some decayed tissue were observed. There were no fruiting bodies present. The surrounding tissue appeared sound. There is a dead branch stub above the wound in the fork between the two main leaders. Whether this is connected to the wound cannot be determined by a visual inspection. Apart from the inspection by the council's tree management officer, neither the respondents nor the applicant have engaged an arborist to inspect the tree.

10 There were no obvious structurally defective branch attachments. It appears that most of the dead wood has been removed from the tree however a couple of long pieces of dead wood remain. One piece is on the northern most branch that overhangs the applicant's property and another is on the most northerly of the three main structural branches arising from the main trunk. There is also a 'hanger' lodged in the branch overhanging the applicant's property.

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. Given that the applicant is concerned about future damage, the guidance decision in Yang v Scerri [2007] NSWLEC 592 has determined that the 'near future' is a period of 12 months from the date of the hearing; a timeframe I consider appropriate in the circumstances. In regards to injury, the Court considers the risk posed by a tree in the foreseeable future.

12 While there is clearly a wound in the main trunk, there is insufficient evidence that failure is likely in the foreseeable or near future. It would appear that the council officer did not consider the wound to be sufficiently concerning to warrant the removal of the tree. On the evidence before me I also hold that view and the removal of the tree will not be ordered on that basis.

13 With respect to the branch that blew off in windy weather, if the branch did hit the applicant's roof there is no evidence of any damage being caused to it. In such windy weather, it is also less likely that there would be much outdoor activity in the garden.

14 Ordering the removal of a tree on the basis of the failure of one relatively small branch on a windy day would be a disproportionate and unreasonable response.

15 The most likely cause of any potential damage or injury is the predictable failure of dead wood. The size and location of the dead wood remaining in the tree is such that it could cause damage to the dividing fence or injury to someone working in the garden. The caught branch will eventually degrade and fall, and while the risk of damage or injury is low, it would be prudent to remove it.

16 Therefore in conclusion, I do not consider the tree to pose such a risk of damage or injury that warrants an order for its removal. I note that while it is of no relevance in these proceedings, the council will reassess the retention or otherwise of the tree when the respondents lodge a development application.

17 However, s 9 of the Act enables the Court to make any orders it thinks fit to remedy, restrain or prevent damage to property or injury to any person. In this regard I consider the removal of dead wood and the hanging branch to be appropriate.

18 Therefore, 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 to remove dead wood down to 70mm in diameter at its base from all parts of the tree that overhang the applicant's property to a distance of 3m inside the respondents' property. All hanging branches are to be removed.

(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 applicant is to provide all reasonable access on 2 working days notice for the work to be carried out in a safe and efficient manner.

(5) The work is to be completed within 40 days of the date of these orders.

______________________

J Fakes

Commissioner of the Court

Decision last updated: 07 November 2011