Land and Environment Court
New South Wales

Medium Neutral Citation:

Vieira v Kaleski [2012] NSWLEC 1100

Hearing dates:

22 March 2012

Decision date:

26 April 2012

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

(1)The respondent is to engage and pay for a suitably qualified arborist (minimum AQF Level 3) to carry out the works in orders (2) to (7), below. All works must be done in accordance with AS4373:2007 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(2)The arborist is to remove trees T1 and T2 to no more than 400 mm above ground level and, if stumps remain, apply poison to the stumps immediately after cutting.

(3)The arborist is to prune T4 to remove the longest limb over the dwelling back to its branch collar at the stem.

(4)The arborist is to prune T5 to provide at least 3 metres of clearance to the dwelling and to remove deadwood greater than 25 mm in diameter above the applicant's property and within 2 metres of the common boundary.

(5)The arborist is to prune T6 and T7 to remove deadwood greater than 25 mm in diameter above the applicant's property and within 2 metres of the common boundary; and to reduce by up to 20-30% any limbs that overhang the applicant's dwelling pruning back to suitable lateral branches where possible.

(6)The arborist is to prune T3, T8, T9, T10, T11, T12 and T14 to remove deadwood greater than 25 mm in diameter above the applicant's property and within 2 metres of the common boundary and to remove any other hazardous limbs identified while carrying out these works.

(7)The arborist is to prune T15 to remove the one stem that most overhangs the applicant's property.

(8)The works in orders (2) to (7) are to be completed within 60 days of the date of these orders.

(9)Every two years, beginning in 2014, within 30 days either side of the anniversary of the date of these orders, the respondent is to engage and pay for a suitably qualified arborist (minimum AQF Level 3) to carry out the works in order (10) below. All works must be done in accordance with AS4373:2007 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(10)The arborist is to prune T3-T12 inclusive and T14 to remove deadwood greater than 25 mm in diameter above the applicant's property and within 2 metres of the common boundary and to remove any other hazardous limbs identified while carrying out these works.

(11)The respondent is to give the applicant one week's notice of the works in orders (1) to (7) and orders (9) and (10).

(12)The applicant is to provide all access required for the works in orders (1) to (7) and orders (9) and (10) to be carried out efficiently, including clear access along the driveway for a truck (up to 7.5 tonne when loaded, with four rear wheels) and chipper (up to 9 inch capacity) and clear access between the dwelling and the common boundary.

(13)If the applicant does not provide the access ordered in (12), orders (1) to (11) are revoked.

(14)Between 1 November and 20 December each year, the tree shall be thoroughly inspected for the presence of fruit by an arborist with a minimum AQF level 3 qualification and appropriate insurance.

(15)The first inspection is to commence in 2012 and then annually within the time period specified in order (14).

(16)Any fruit 100mm or more in diameter in any dimension is to be removed from the eastern half of the crown. The de-coning is to occur at the same time as the inspection.

(17)The cost of the inspection and any de-coning is to be borne by the respondent.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS): damage to property; risk of injury; compensation dismissed; removal ordered; pruning ordered; access ordered.

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292
Vieira v Kaleski [2007] NSWLEC 640

Category:

Principal judgment

Parties:

Mr Jose Vieira (Applicant)

Mrs Anne Kaleski (Respondent)

File Number(s):

21256 of 2011

Judgment

1Mr Vieira, an owner of land in Wahroonga and the applicant in this matter, seeks orders for the removal and pruning of trees that grow on an adjoining property. This is not the first time these trees have been the subject of a hearing in this Court. In September 2007, Commissioner Tuor and Acting Commissioner Fakes heard the matter of Vieira v Kaleski [2007] NSWLEC 640. Orders of the Court included removal of two trees and directions for the inspection and pruning of numerous other trees along the common boundaries of the two properties. After the matter returned to the Court several times over issues regarding access for the works, the Court gave orders for the applicant to provide access. All orders for tree works and access were then stayed permanently when Lloyd J determined that the applicant had failed to provide adequate access as required by the Court's orders.

2Mr Vieira now brings this matter to the Court via a new application under the Trees (Disputes between Neighbours) Act 2006.

3He seeks the removal of six trees: T1, T2, T3, T4, T5 and T15.

4He seeks the pruning of nine trees (T6, T7, T8, T9, T10, T11, T12, T13 and T14) to maintain the trees safely, being removal of deadwood and hazardous limbs over his property. He further seeks that these trees be maintained in future through annual pruning.

5The applicant seeks annual cone removal from T16.

6These orders are sought on the grounds that the trees are likely to cause damage to the applicant's property or cause injury to members of his family.

7The applicant also seeks compensation of $6,611 from the respondent for repairs to a vehicle and the dwelling, as he submits that damage was caused by limbs falling from the respondent's trees.

8The applicant communicated these orders verbally during the onsite hearing. They differ slightly from the orders sought in the application, which included the removal of a greater number of trees.

9Mrs Kaleski, the respondent in this matter, is willing to undertake whatever works are required to reasonably maintain the trees, but would like access through the applicant's property for the works to be carried out efficiently.

10I must determine which trees fall within the Court's jurisdiction under s 10(2) of the Act and what orders would be appropriate under s 9 of the Act.

Observations

11The hearing took place onsite, beginning with a view of the trees and clarification of the orders sought for each tree. The tree numbering used below was agreed to at the hearing.

12Trees T1 and T2 are both Coral Trees (Erythrina x sykesii) approximately 17 metres tall. They were lopped many years ago at around 10 metres in height. This has led to decay of the lopped stubs, with poorly attached epicormic growth attached to the decayed areas. There is a high risk of limb failure. Both trees overhang the applicant's garden.

13Tree T3 is a Coral Tree. It overhangs the applicant's garden to a lesser extent than T1 and T2 and is structurally superior to those two trees.

14T4 is a Silky Oak (Grevillea robusta) approximately 17 metres tall. It has some limbs extending over the applicant's property. One limb, not large, overhangs the dwelling and could damage the dwelling if it fails.

15T5 is a Coral Tree approximately 15 metres tall with three stems. Its lower limbs on its western side overhang, and in some cases touch, the roof of the applicant's dwelling. This may cause damage to the dwelling.

16Trees T6 and T7 are Blackbutts (Eucalyptus pilularis) approximately 30 metres tall. They have limbs extending over the applicant's dwelling and some large deadwood is present in their canopies.

17T8 is a 20 metre tall Rough-barked Apple (Angophora floribunda) with nearly all of its crown overhanging the driveway and car parking area. Its stem has a structural defect.

18T9 is a Jacaranda (Jacaranda mimosifolia) that overhangs the driveway and car parking area.

19T10 is a Eucalypt approximately 20 metres tall. Its crown partly overhangs the driveway and car parking area on the applicant's property.

20T11 is a Tallowwood (Eucalyptus microcorys) approximately 20 metres tall. It has lost its central stem and has a long dominant stem over the driveway.

21T12 is a Sydney Blue Gum (Eucalyptus saligna) more than 30 metres tall with some deadwood over the driveway.

22T13 is an 8-metre Sweet Pittosporum (Pittosporum undulatum) in good health and good structural condition.

23T14 is a Eucalypt approximately 30 metres tall. It is in good health and good structural condition, but has some large deadwood over the driveway.

24T15 is a tall Giant Bird of Paradise (Strelitzia nicolai) between T2 and T3. It has multiple stems, one of which overhangs the fence on the common boundary.

25T16 is a Bunya Pine (Araucaria bidwillii) at the front of the respondent's property. It is a healthy tree in good structural condition. It partly overhangs the footpath.

Timeline

2626 September 2007: the Court orders the respondent to remove two trees and prune other trees.

278 November 2007: the Court orders that the applicant provides access for the works.

2822 November 2007: the Court orders that the previous orders be permanently stayed as a consequence of the applicant's failure to provide adequate access.

29Late 2008 to 2009: the applicant submits that falling limbs damaged roofing, skylight, gutter guard and vehicles on his property.

Submissions

30Details of the applicant's submissions at the hearing differ slightly to those made in the application. The applicant is self-represented and some leeway was allowed at the hearing for him to provide clarification of his concerns about the trees and the orders he seeks.

Applicant's submissions regarding history of trees and damage

31Mr Vieira submits that trees over the car parking area near the entry to the dwelling, most likely trees T6 and T7, have caused damage to his property. Falling limbs from these trees have cracked the skylight on the dwelling roof, broken tiles on the dwelling roof, and damaged vehicles parked on his property.

32Damage to the dwelling roof and skylight occurred in late 2008. Mr Vieira put lead sheeting over the damaged area within a couple of days of the damage occurring. He has not repaired the broken tiles. He says he informed the respondent of the damage within a couple of weeks.

33Rainwater has leaked through the damaged skylight and tiles causing water damage to plaster in the entry and ceiling plaster in an adjacent living room.

34Mr Vieira has nine children, so the driveway receives frequent use.

35Damage to a 4WD vehicle roof was repaired in 2008. Further damage has occurred since then, being small dents to the roof and bonnet. Mr Vieira says this was caused by limbs falling from the respondent's trees.

36A stem of T15 failed some time ago, damaging the fence.

37The Bunya Pine (T16) dropped two or three cones on the footpath during recent weeks. He says that these cones fell near his children.

38Mr Vieira submitted a copy of a paid invoice for the 2008 vehicle repair works for $4,750. He does not seek orders for compensation for this amount.

39Mr Vieira submitted quotations for further vehicle repairs ($1,683) and skylight repairs ($3,728) that, along with his estimate of $1,200 for repairing and painting the damaged ceiling in his dwelling, make up the total compensation he claims of $6,611.

Applicant's submissions regarding risk of damage and injury

40Mr Vieira submits that trees T1 to T15 may cause damage to his property in the near future. Limbs falling from these trees could damage the fence, the dwelling roof and vehicles in the driveway.

41He contends that T4 may cause damage to pool cleaning equipment, as its leaves are large and stiff and will cause extra wear-and-tear on the equipment.

42Trees T1 to T15 pose a risk of injury to people on his property, as limbs may fall and hit them.

43Trees over the entry area, particularly T9 but also T6, T7 and T8, may cause injury to a person as leaves falling onto the paved area cause the surface to be slippery. After being informed of the tree dispute principle regarding trees and maintenance established in Barker v Kyriakides [2007] NSWLEC 292, Mr Vieira submits that this should not apply as most of the trees' limbs extend over his property. He says that the limbs extend too far and should be maintained by the trees' owner.

44T16 poses a risk of injury to people on the footpath, as cones of the bunya pine may fall and hit a pedestrian.

45Mr Vieira also submitted a tree report by Glenn Bird of Birds Tree Consultancy dated 31 March 2011. The report includes an assessment of trees T1 to T8 from within the applicant's property only. It recommends, on grounds of safety and environmental issues, removal of trees T1 to T5 and pruning of T7 and T8.

Applicant's other submissions

46Mr Vieira submits that he wants the trees to be "maintained reasonably" by their owner; that all he seeks is "proper maintenance".

47Regarding access, he says that workers can access the trees through his property but that all debris should be removed through the respondent's property. He does not want trucks or machinery to use his driveway but would accept a utility vehicle.

The respondent's submissions

48Mrs Kaleski submits that she is willing to carry out the works as previously ordered by the Court, or similar and reasonable maintenance works as the Court sees fit.

49She is most willing to maintain the trees in a safe state, so that she and others can enjoy the benefits of the trees without causing damage or injury to others.

50She attempted to have the works ordered by the Court in 2007 carried out but was unable to, because Mr Vieira caused obstruction, preventing reasonable access for arborists to carry out the works.

51She subsequently discussed the Jacaranda (T9) with Mr Vieira and reached agreement regarding its maintenance. She obtained a permit from Council to prune T9 but was unable to carry out the work in a reasonable manner, as she received no agreement from Mr Vieira regarding access for the works.

52She insists that these examples show that she is most willing to carry out any reasonable works.

53Arborists who have provided her with quotes have stated that the works would be carried out more efficiently with vehicular access along Mr Vieira's driveway. (In fact the two parties each own half the driveway, with ownership split down the middle along its length.)

54She says that the previous denial of access by Mr Vieira cost her financially, as she had to pay for the arborists.

55Mrs Kaleski says that Mr Vieira has provided no evidence that her trees caused the damage to his property. She points out that, even if her trees have caused damage, she has been unable to prune the trees for hazard reduction due to the orders being stayed. She says that Mr Vieira has been unable to provide the branches that caused damage.

56She states that Mr Vieira claimed tree branches had damaged his solar panels, but points out that aerial photos show the panels are positioned on the west side of his house, well away from the trees.

57She contends that, after damage occurred to Mr Vieira's roof, he had a duty to fix the damage promptly, but did not repair the tiles. He informed her of the damage but provided no evidence of it. Her insurer could not get any information from Mr Vieira regarding the damage.

58Mrs Kaleski maintains that she has always been prepared to manage her trees to prevent damage but has been prevented from doing this due to non-cooperation from Mr Vieira. She has always complied with the Court's orders to the extent to which she has been able.

59She submits that the asphalt driveway, of which she owns half, can handle the vehicles required for the works to be carried out. No travel tower would be required, only a small truck and chipper.

60Mrs Kaleski says that if trees are removed, removal to ground level is adequate and there is no requirement for stump-grinding.

61Mrs Kaleski contends that the risk of injury from Bunya cones falling onto the footpath is so remote, due to the low frequency of pedestrian traffic, that no action is required for T16. Mr Halstead, her legal representative, argues that the Court previously found there was no jurisdiction over this tree. Regarding this last issue it is my opinion that, in this case, the Court does have jurisdiction over T16, as it is situated on land adjoining the applicant's land.

Jurisdictional tests at s 10(2)

Have the trees caused damage?

62Mr Vieira claims that falling branches from T6, T7 and T8 damaged his skylight and roof in 2008 and that this led to water damage of internal plasterboard lining. He further claims that limbs damaged his car. Mrs Kaleski submits that there is no evidence that limbs from her trees caused the damage, and indeed no such evidence has been provided. However, this is only one of several jurisdictional tests. Other jurisdictional tests for these three trees are satisfied, as outlined below, allowing the Court to make orders. Therefore I will return to the matter of damage already caused when considering the matter of compensation.

Are the trees likely to cause damage to the applicant's property in the near future, or injury to a person?

63Taking the applicant's claims at their highest, I accept that trees T1-T12, T14 and T15 are all likely to cause damage to his property or injury to a person. The condition of these trees has been described above. They all have limbs that could fall onto the applicant's property, potentially resulting in damage or injury. The Court's jurisdiction is enlivened in regard to these 14 trees. However, I do not accept that removal is required for all the trees for which the applicant has sought removal. Trees T1 and T2 do require removal due to the risk they pose and their form and structure. However, the risk associated with the other twelve trees mentioned above can be remedied by pruning.

64Despite the applicant's concerns, I do not accept that T13, a Sweet Pittosporum that is in good condition, is likely to cause damage in the near future or injury to any person. It has no large deadwood over the applicant's property and no major defects. Therefore the application regarding this tree is dismissed.

65I accept that T16, the Bunya Pine, may cause injury. Although the frequency of pedestrians beneath the tree may be very low, the potential impacts are severe and justify action. The Court's jurisdiction is enlivened in regard to this tree. Cone removal has been ordered by the Court in other matters and would be appropriate here.

Matters to be considered

66Before making any orders, I am required to consider the matters listed in s 12 of the Act.

67S 12(a). Trees T1-T15 are close to the common boundary and overhang the applicant's land. Trees T1-T10 are also relatively close to the applicant's premises. T16 is near the respondent's front boundary, well away from the premises.

68S 12(b). Interference with the trees would require consent under the Ku-Ring-Gai Council's Tree Preservation Order, except for the Coral trees (T1, T2, T3 and T5).

69S 12(b1). Interference with the trees would not require approval under the Native Vegetation Act 2003.

70S 12(b2). The pruning orders sought at the hearing would not have an adverse impact on the form or health of the trees. Pruning orders sought in the written application were more extensive and may adversely impact on the health and form of some of the trees.

71S 12(b3). Trees with lower crowns along the respondent's western boundary, notably T1, T2, T3, T5 and T15, contribute to privacy for the respondent. All 16 trees contribute to the property's landscaping and garden design and provide protection from sun and from wind.

72S 12(c). No evidence was presented of any historical, cultural, social or scientific values relating to the trees.

73S 12(d). Native trees contribute to the local ecosystem and biodiversity, notably trees T6, T7, T8, T10, T11, T12 and T14.

74S 12(e). All the trees contribute to the natural landscape and scenic value of the land.

75S 12(f). The taller trees at the rear of the site, notably T6, T7, T8, T10, T11, T12 and T14, as well as T16 at the front of the site, contribute to public amenity.

76S 12(g). No evidence was presented that the trees have any significant impact on soil stability or the water table. The land is generally level.

77In general, I find that all the trees contribute to landscaping of the land, to shading, to wind reduction and to the scenic value of the land. Many contribute to privacy. Taller trees are visible form the street and contribute to public amenity.

78Considering s 12(h) and s 12(i), I note that Mrs Kaleski took all appropriate steps to carry out tree pruning and removal works as ordered by the Court in 2007. I also note that Mr Vieira did not provide the access required for the works and ordered by the Court.

Compensation

79Even if I am convinced by Mr Vieira's argument that, as there is nothing else that could have caused damage to the skylight and the vehicle it follows that the damage must be due to the trees, other factors leading to the damage must be considered. In particular, Mrs Kaleski's desire to carry out the Court's orders, prior to the damage for which he claims compensation, was obstructed by Mr Vieira. The Court has given reasonable regard to Mr Vieira's concerns in the past and, eventually, made all appropriate orders. If Mr Vieira had provided access as ordered by the Court, the trees would have been pruned and it is unlikely that any such damage would have occurred. It follows that, if damage was indeed caused by the trees, Mr Vieira brought this damage on himself. According to s 12(h) of the Act, as noted above, I must take this into consideration before determining the application. I can see no reason why Mrs Kaleski should be expected to pay for any damage that has occurred since 2007 and, consequently, the application for compensation is dismissed.

Access

80The Court regularly makes orders regarding access for works. I see nothing unusual about the situation here. According to Mr Vieira's own evidence the driveway already experiences frequent traffic. A small truck and chipper would be unlikely to cause any damage, but if any damage should occur it would be covered by the contractor's public liability insurance.

Orders

81As a result of the foregoing, the orders of the Court are: