Land and Environment Court New South Wales

• Medium Neutral Citation: Pryce v Fragiadakis [2012] NSWLEC 1053
• Hearing dates: 9 March 2012
• Decision date: 09 March 2012
• Jurisdiction: Class 2
• Before: Galwey AC

Decision

(1) The application to remove the tree is dismissed.

(2) The respondent is to engage and pay for a suitably qualified (minimum AQF Level 3) arborist, with all appropriate insurance, to prune the Sydney Peppermint that overhangs the applicant's property. Pruning is to: reduce that part of the crown over the applicant's pool by reducing long limbs to suitable lateral branches, removing no more than 15% of total leaf area of the crown; and to remove any deadwood greater than 25 mm diameter from the crown.

(3) The works in (2) are to be carried out in accordance with AS4373:2007 Pruning of Amenity Trees and with the WorkCover Code of Practice for the Amenity Tree Industry .

(4) The works in (2) are to be completed within 60 days of the date of these orders.

(5) Every two years, within 30 days of the anniversary of the date of these orders, the respondent is to engage and pay for a suitably qualified (minimum AQF Level 3) arborist, with all appropriate insurance, to prune the Sydney Peppermint to: reduce that part of the crown over the applicant's pool by reducing any long limbs to suitable lateral branches, removing no more than 15% of total leaf area of the crown; and to remove any deadwood greater than 25 mm diameter from the crown.

(6) The works in (5) are to be carried out in accordance with AS4373:2007 Pruning of Amenity Trees and with the WorkCover Code of Practice for the Amenity Tree Industry .

(7) The applicant is to allow, and may supervise, any access to her property required for the works in (2) and (5), on reasonable notice and at a reasonable time of the day.

• Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS): damage to property; risk of injury; application for removal dismissed; pruning ordered
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Yang v Scerri [2007] NSWLEC 592
• Category: Principal judgment
• Parties: Suzanne Pryce (Applicant); Nick Fragiadakis and Vicky Fragiadakis (Respondents)
• Representation: Suzanne Pryce (Applicant in person); Nick Fragiadakis (Respondent in person)
• File Number(s): 21099 of 2011

Judgment

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

1 ACTING COMMISSIONER: Trees are dynamic organisms, constantly growing and shedding. They also provide benefits to people and to the environment in which they grow.

Background to the application

2 A large Peppermint Gum in Kareela has, over several years, dropped limbs that have damaged a neighbouring pool.

3 Ms Pryce is the owner of that pool and the neighbour of the tree's owner. She has applied to the Court under the Trees (Disputes Between Neighbours) Act 2006 for the removal of the tree on the grounds that it has damaged her pool and that there is a risk it will cause damage to her property or injury to a person.

4 Mr and Mrs Fragiadakis, the tree's owners and the respondents in this matter, wish to retain the tree as it provides benefits to their family and to the environment.

5 That the tree has dropped limbs, which have damaged Ms Pryce's pool, does not seem to be a matter of dispute. Such damage would enliven the Court's jurisdiction under s 10(2)(a) of the Act. The parties disagree, however, on the level of ongoing risk and on the appropriate way to deal with any such risk.

6 I am to determine what risk the tree poses and what orders I think fit to prevent damage to the applicant's property or to prevent injury to any person.

7 Ms Pryce was informed that her claim for costs, being the application fee, requires a Notice of Motion to be heard by a Judge, as Commissioners of the Court do not have the powers to award costs.

8 The hearing took place on-site, beginning with a view of the tree and the situation on Ms Pryce's property, followed by a view of the tree on the Fragiadakis' property.

The situation as observed

9 The tree is a Sydney Peppermint ( Eucalyptus piperita ) approximately 20 metres tall with a stem diameter of more than 80 cm. It grows in the Fragiadakis' rear garden four or five metres from the common boundary with Ms Pryce's property to the west. It appears to be healthy and has no major structural defects that could be observed from the ground.

10 The tree's broad crown spreads above the Fragiadakis' rear garden, above another garden to the north and above Ms Pryce's property, including her swimming pool. It does not extend over her dwelling.

11 Relatively fresh cuts can be seen in the tree's crown. According to Mr Fragiadakis it was last pruned in November 2011. Cuts have been made correctly at branch collars. There is an insignificant amount of deadwood in the crown and certainly nothing large.

12 Branch stubs in the crown indicate some limb failures have occurred. Most of these are less than 5 cm in diameter. One such limb lies in the Fragiadakis' garden near the western boundary.

Applications to Council

13 Following several requests from Ms Pryce, Mr Fragiadakis applied in September 2010 to Sutherland Shire Council to remove the tree. Tree removal was refused but Council granted a permit for pruning of the tree to a maximum of 15% of the live canopy.

14 In her submissions Ms Pryce contends that Council may have made a different finding had they known that tree limbs had damaged her pool. She states that Mr Fragiadakis did not pass on to Council the extensive information, including letters from other neighbours, that she had supplied to him.

Other submissions from the applicant

15 Ms Pryce does not seek compensation for damage to the pool, but is concerned at the increase in her insurance premiums she says is due to the two claims she has now made on her home insurance. She is also concerned about the cost of water when she has to refill her pool following damage and repair.

Has the tree caused damage to the applicant's property?

16 Ms Pryce asserts that limbs from the tree have fallen into her pool on multiple occasions and have damaged the pool lining twice, firstly in 2008 and secondly in 2009. Quotations for pool repairs mentioned that tree branches caused the damage. The respondents do not refute this. I am therefore satisfied that the tree concerned has caused damage to the applicant's property and, as the test at s 10(2)(a) of the Act is met, the Court can therefore make orders.

17 Although further satisfaction of any tests at s 10(2) is not required, such matters are relevant to determining what orders, if any, would be appropriate. Ms Pryce is not claiming compensation for any past damage. It follows that if there is no risk of damage in the near future, or of injury to a person, the Court would not make any orders interfering with the tree, despite its jurisdiction being enlivened.

Is the tree likely to cause further damage to the applicant's property in the near future?

18 Currently there is little or no deadwood of any significant size in the tree's crown. A long live limb above Ms Pryce's pool could be described as 'overextended'. The foliage at its end is weighty, especially when also flowering or fruiting, and this has some risk of falling within the next 12 months, a reasonable timeframe to regard as the 'near future' (see Yang v Scerri [2007] NSWLEC 592). The failure of this limb could result in damage to the pool.

19 There are no other limbs that appear likely to fail and cause damage. When asked, Ms Pryce informed the Court that, on both occasions that her pool was damaged, limbs that fell from the tree were dead. The tree seems to have no significant history of shedding live limbs. The tree was pruned as recently as November 2011 and contains no sizeable dead limbs.

Is the tree likely to cause injury to a person?

20 Ms Pryce is concerned that falling limbs may injure herself, her grandchild, other visitors and other neighbours.

21 The limb described above at [18] could also cause injury if it fell. Apart from this, any limb failures are unlikely to cause injury as they are likely to fall closer to the tree's base. They do not overhang areas of frequent use. The tree's stem and root buttress appear sound - there are no signs suggesting that total tree failure is likely.

Matters to be considered by the Court

22 Before determining this application, I must consider several matters that are listed in s 12 of the Act. These are addressed in order below.

23 S 12(a). The tree is over four metres from the boundary and is a considerable distance from any dwelling. It does not overhang any dwelling.

24 S 12(b). Interference with the tree would require consent from Sutherland Shire Council.

25 S 12(b1). Interference with the tree would not require approval under the Native Vegetation Act 2003 .

26 S 12(b2). Pruning the tree to reduce crown spread over the applicant's property would not be detrimental to the tree if less than 15% of the entire crown's foliage were removed. Removing more than this would be likely to cause responses that would be unfavourable to the tree's vigour and to its structural integrity in the long term.

27 S 12(b3). The tree contributes significantly to the landscaping of the land on which it is situated. The garden follows the natural slope of the land, with large rocky outcrops remaining in their place. This gives the impression that the natural landscape has not been overly interfered with in the garden. Indigenous trees, including the subject tree, contribute to this. The tree is west of the respondents' dwelling and shades the dwelling from hot afternoon sun. Mr Fragiadakis submits that they would require an air conditioner in their house if the tree was not there.

28 S 12(c). No evidence was provided that the tree has any historical, cultural, social or scientific value.

29 S 12(d). This remnant indigenous tree contributes to the local ecosystem and to biodiversity. It provides food and habitat for possums, birds and other fauna. Mr Fragiadakis states that magpies nest in the tree annually. Its presence maintains the diversity of the indigenous flora of the area.

30 S 12(e). The tree is 20 metres tall with a broadly spreading crown. Its canopy contributes to the natural landscape and scenic value of the respondents' land.

31 S 12(f). The tree's crown rises well above dwellings and can be seen from surrounding streets. It contributes to public amenity. Along with other trees it helps to reduce the 'heat-island' effect of this built-up area.

32 S 12(g). The land on which the tree grows slopes steeply down to the west. Mr Fragiadakis contends that, if the tree is removed and its roots die, soil on his land is likely to wash downhill onto Ms Pryce's property. Experience shows that tree roots do indeed contribute significantly to the prevention of erosion.

33 Sections 12(h) and 12(i) address other factors that may contribute to damage or to the likelihood of damage or injury. I note two points. Firstly, the applicant has other trees at the front of her property that may also cause damage to her property. They are not above her pool, but limb failures from these trees could damage her house or cause injury. Secondly, Mr Fragiadakis has had the tree pruned four times over the last ten years, most recently in the latter part of 2011. The respondents are taking reasonable steps to ensure the ongoing safety of the tree. They do not expect the applicant to live with any greater risk than they are willing to accept themselves, as the tree is equally close to their own pool where their own children swim.

34 S 12(j). There are no other matters that I consider relevant.

Conclusions

35 I am satisfied that the Court has jurisdiction to make orders regarding the tree. Ms Pryce states that branches from the neighbouring tree have damaged her pool twice and this is not challenged. The likelihood of the tree causing further damage in the near future, and the likelihood of it causing injury, are present but are not unlimited.

36 According to her own evidence, branches that have fallen into Ms Pryce's pool have been dead. The tree has no significant history of shedding live limbs. At present there is very little deadwood in the crown, as the tree has been pruned recently. The highest risk, to my mind, arises from a long limb extending above Ms Pryce's pool, that limb having significant weight of foliage at its end.

37 The tree provides significant benefits, not only to its owners but also to the broader community, including Ms Pryce herself. It is a remnant indigenous tree, part of the natural ecosystem of the area. It provides habitat, attracts native birds, provides shading and cooling, contributes to amenity of the neighbourhood and potentially helps to prevent erosion.

38 In the balance of the issues described above, removal of the tree would be an over-reaction to its level of risk, and is not necessary to satisfactorily mitigate the risk. An ongoing program of pruning can minimise the risk of further limb failure while retaining the tree's benefits.

Orders

39 Therefore, the orders of the Court are:

(1) The application to remove the tree is dismissed.

(2) The respondent is to engage and pay for a suitably qualified (minimum AQF Level 3) arborist, with all appropriate insurance, to prune the Sydney Peppermint that overhangs the applicant's property. Pruning is to: reduce that part of the crown over the applicant's pool by reducing long limbs to suitable lateral branches, removing no more than 15% of total leaf area of the crown; and to remove any deadwood greater than 25 mm diameter from the crown.

(3) The works in (2) are to be carried out in accordance with AS4373:2007 Pruning of Amenity Trees and with the WorkCover Code of Practice for the Amenity Tree Industry .

(4) The works in (2) are to be completed within 60 days of the date of these orders.

(5) Every two years, within 30 days of the anniversary of the date of these orders, the respondent is to engage and pay for a suitably qualified (minimum AQF Level 3) arborist, with all appropriate insurance, to prune the Sydney Peppermint to: reduce that part of the crown over the applicant's pool by reducing any long limbs to suitable lateral branches, removing no more than 15% of total leaf area of the crown; and to remove any deadwood greater than 25 mm diameter from the crown.

(6) The works in (5) are to be carried out in accordance with AS4373:2007 Pruning of Amenity Trees and with the WorkCover Code of Practice for the Amenity Tree Industry .

(7) The applicant is to allow, and may supervise, any access to her property required for the works in (2) and (5), on reasonable notice and at a reasonable time of the day.

D Galwey

Acting Commissioner of the Court

**********

Decision last updated: 09 March 2012