Land and Environment Court New South Wales

• Medium Neutral Citation: Borgia v Williams [2012] NSWLEC 1091
• Hearing dates: 13 April 2012
• Decision date: 13 April 2012
• Jurisdiction: Class 2
• Before: Galwey AC

Decision

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

(2)The respondent, Mr Williams, is to engage and pay for a suitably qualified (minimum AQF Level 3) arborist, with all appropriate insurance to prune the tree to:

• Remove any limbs within 2 metres of the applicant's antenna, pruning them back to suitable lateral branches or branch collars as described in AS4373-2007 Pruning of Amenity Trees.
• Reduce the longest limb over the applicant's dwelling by pruning back to a suitable lateral branch or branch collar as described in AS4373-2007 Pruning of Amenity Trees.
• Remove any deadwood greater than 50mm diameter over the applicant's property and within 2 metres of a vertical plane above the common boundary.

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

(4)Every 2 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 tree to:

• Remove any limbs within 2 metres of the applicant's antenna, pruning them back to suitable lateral branches or branch collars as described in AS4373-2007 Pruning of Amenity Trees.
• Remove any deadwood greater than 50mm diameter over the applicant's property and within 2 metres of a vertical plane above the common boundary.

(5)The works in (2) and (4) are to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry and AS4373:2007 Pruning of Amenity Trees.

(6)The respondent is to give the applicant 2 weeks' notice of the works in orders (2) and (4).

(7)The applicant is to allow all access required for the works to be undertaken in a safe and efficient manner at a reasonable time of day.

(8)The respondent is to pay the applicant $235 within 14 days of receiving a receipted invoice showing that the antenna repair works have been completed and paid for.

(9)If the applicant does not provide the respondent with such an invoice within 12 months of the date of these orders, order (8) lapses.

• Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS): damage to property; risk of injury; compensation ordered; pruning ordered.
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Robson v Leischke [2008] NSWLEC 152; Yang v Scerri [2007] NSWLEC 592
• Category: Principal judgment
• Parties: Rocci Borgia (Applicant); Graham Williams (Respondent)
• Representation: Representation; Rocci Borgia (Applicant in person); Graham Williams (Respondent in person)
• File Number(s): 21268 of 2011

Judgment

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

1 ACTING COMMISSIONER: Mr and Mrs Borgia have lived at their property in Figtree since 2005. Although they had a neighbouring tree pruned over their dwelling the following year, that tree has grown enough since then that its limbs now reach their television antenna. They submit that the tree has damaged the antenna. For this reason, and due to further concerns that limbs falling from the tree might damage their dwelling or injure their family, they seek removal of the tree under the Trees (Disputes Between Neighbours) Act 2006. They also seek compensation for repair works to the antenna and costs for a tree report and the Court application fee. Commissioners cannot award costs, so if they wish to pursue that aspect of the application they must file a Notice of Motion for a hearing by a Judge.

2 Mr Williams, the owner of the tree, wishes to retain the tree and keep it safe.

History

3 The Borgias moved into their property in 2005. They discussed the overhanging tree with Mr Williams and, in 2006, had arborists remove two limbs over their dwelling, as well as carrying out other tree works on their own property. Mr Williams paid for that portion of the works.

4 The Borgias first noticed that the tree's limbs were causing damage to their antenna in 2007 and brought this to the attention of Mr Williams.

5 Since then, some further damage to the antenna has occurred and several attempts at discussion and mediation were made.

6 The Borgias made their application to the Court in December 2011.

7 Mr Williams applied to Wollongong Council for the removal of two trees, being the subject tree and another tree on the other side of his property. In Feb 2012 he received a determination refusing any pruning or removal but asking for further information regarding the tree's habitat value.

Submissions

8 Mr Borgia relies on the arborist report submitted with the application. In that report, supplied by Treecycling Tree Services, the unnamed author describes the condition of the tree. He concludes that the tree is unsuitable for pruning, does not occur naturally or is uncommon in the area, is too large for its location, will grow larger, and recommends it removal.

9 Mr Williams submits that there is another similar tree on the other side of his property that both he and another neighbour are happy to live beneath. He says he cannot prune or remove the tree as the Council has not permitted that.

10 He submits that the antenna could be lowered or removed and that it is an analogue type and therefore has only a limited useful life, as analogue television is to become redundant. Mr Borgia submits that he should not have to move the antenna to allow for growth of a neighbouring tree. He says the antenna will work for digital television and so will be used well into the future. He also argues that the tree poses a risk of damage to his property, mainly skylights and roofing, and a risk of injury to his family. He explained that the tree has shed limbs, mostly dead limbs over their property, but also at least one live limb over Mr Williams' property. Moving the antenna would not deal with this issue of future risk of damage or injury. Mr Borgia supplied a quote for antenna repair works, required as a result of damage caused by the tree, for $470.

11 Mr Williams points out that the extension at the rear of the Borgias' dwelling was added by the previous owners and was constructed beneath the tree and as close to the tree as possible, with full knowledge of the tree's presence.

12 Mr Williams says that he enjoys the treed environs of the area, including this tree. He says it provides many benefits and attracts birds including kookaburras, tawny frogmouths, galahs and so on.

13 Mr Borgia stated that other wildlife may also be present, pointing to the notes of Council's arborist, who mentioned the presence of termites. He says termites may spread to and damage their dwelling. As discussed by Preston CJ in Robson v Leischke [2008] NSWLEC 152 at 189, termites are not trees and the court has no jurisdiction over them.

Findings

14 I find the arborist report to be not entirely accurate and am not convinced by the conclusions or reasoning for the recommendation of tree removal. The identification of the species of tree may be wrong, but even if correct the species' uncommon occurrence in this area is not a reason to remove the tree. It provides benefits - environmental, habitat and amenity - regardless of its species.

15 I accept that the tree may shed limbs. There are long limbs over the dwelling and some large deadwood is present throughout the crown, but no more than is typical for a healthy tree. I accept that there is a risk that such limbs falling from the tree could cause damage to the Borgias' property, or injury to a person, in the near future, which may ordinarily be regarded as 12 months (Yang v Scerri [2007] NSWLEC 592). Therefore, at least one of the tests at s 10(2) of the act is satisfied and the Court has jurisdiction to make orders regarding the tree. I am not obliged to make the orders sought. Rather, I must consider the matters in s 12 of the Act and make orders as enabled by s 9 to "remedy, restrain or prevent damage to property, or to prevent injury to any person, as a consequence of the tree."

16 The tree has many benefits. It provides shading and cooling to both properties. It provides amenity to Mr Williams' property and to surrounding land. It provides habitat and contributes to local biodiversity. Its roots may contribute to stabilising the sloping land.

17 Turning to the antenna damage, I have regard for the fact that both the tree and the antenna were present prior to either party occupying their properties. Pruning in 2006 was clearly insufficient, as the tree caused damage to the antenna within one year of pruning. However, the Borgias notified Mr Williams of the damage. As the owner of the tree there is some expectation on him to prevent further damage that might be caused by a tree on his land, once such an issue has been brought to his attention. While Mr Williams argues that his hands are tied because the Council did not permit pruning, I note that his application for a permit was not made until after the Borgias' court application, several years after it was brought to his attention. Also the Council determination was not final but requested further information regarding habitat before a final decision was to be made. It is at least a possibility that pruning for clearance around the antenna would have been allowed at that point.

18 Mr Williams submits that the Borgias could undertake pruning, but no evidence was provided to show that they could do this under the Tree Preservation Order.

19 I accept that the tree has caused damage and that there is a risk of damage or injury in the near future. However I do not accept that removal is the only available solution, or that it is the most appropriate. I am not convinced by the tree report or by my own view of the tree that there are any major defects that would result in large sections of the tree failing in the near future. I do not accept that any hazards present in, or risk arising from, the tree can only be dealt with by removing the entire tree. Pruning could prevent damage to the antenna and minimise the risk of damage or injury being caused by the tree. Considering the tree's value to the local environment, this option is more appropriate.

20 Based on the above, I conclude that the tree should be pruned for hazard reduction. I further conclude that Mr Williams took no action to avert damage since being notified of the issue in 2007, and it is therefore appropriate for him to compensate the owners for at least part of the repair quotation. However, given that the Borgias had the tree pruned in 2006 and damage first occurred in 2007, I find it unreasonable that Mr Williams should pay for the initial damage. As a best effort to apportion the damages I will therefore order the cost be split 50/50.

21 Therefore the orders of the court are:

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

(2) The respondent, Mr Williams, is to engage and pay for a suitably qualified (minimum AQF Level 3) arborist, with all appropriate insurance to prune the tree to:

• Remove any limbs within 2 metres of the applicant's antenna, pruning them back to suitable lateral branches or branch collars as described in AS4373-2007 Pruning of Amenity Trees.
• Reduce the longest limb over the applicant's dwelling by pruning back to a suitable lateral branch or branch collar as described in AS4373-2007 Pruning of Amenity Trees.
• Remove any deadwood greater than 50mm diameter over the applicant's property and within 2 metres of a vertical plane above the common boundary.

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

(4) Every 2 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 tree to:

• Remove any limbs within 2 metres of the applicant's antenna, pruning them back to suitable lateral branches or branch collars as described in AS4373-2007 Pruning of Amenity Trees.
• Remove any deadwood greater than 50mm diameter over the applicant's property and within 2 metres of a vertical plane above the common boundary.

(5) The works in (2) and (4) are to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry and AS4373:2007 Pruning of Amenity Trees.

(6) The respondent is to give the applicant 2 weeks' notice of the works in orders (2) and (4).

(7) The applicant is to allow all access required for the works to be undertaken in a safe and efficient manner at a reasonable time of day.

(8) The respondent is to pay the applicant $235 within 14 days of receiving a receipted invoice showing that the antenna repair works have been completed and paid for.

(9) If the applicant does not provide the respondent with such an invoice within 12 months of the date of these orders, order (8) lapses.

D Galwey

Acting Commissioner of the Court

Decision last updated: 16 April 2012