Land and Environment Court New South Wales

• Medium Neutral Citation: Lang v Huggett [2012] NSWLEC 1110
• Hearing dates: 27 April 2012
• Decision date: 27 April 2012
• Jurisdiction: Class 2
• Before: Galwey AC

Decision

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

(2)During the month of December every year, beginning 2012, the respondent is to engage and pay for an arborist (minimum AQF Level 3) with all appropriate insurances to conduct a climbing inspection of the Bunya Pine. During that inspection any cones greater than 80mm in any dimension are to be removed. Any limb removal required to access the entire crown for inspection and de-coning is to be undertaken at the same time. These works are to be done in accordance with AS4373 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(3)The respondent is to give the applicant two weeks' notice of the inspection and works in (2).

(4)The applicant is to provide all access required for the works in (2) during reasonable hours.

(5)The applicant may engage an arborist up to AQF Level 5 to supervise the works in (2), in which case he is to present the respondent with a receipted invoice for the supervision within 14 days of the works.

(6)The respondent is to pay the applicant the amount of the invoice in order (5) within 14 days of receiving it.

(7)If no receipted invoice is received within 14 days of the inspection and de-coning, order (6) lapses.

• Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS): application to remove trees dismissed; damage to property; risk of injury; de-coning ordered
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Adamski v Betty [2007] NSWLEC 200; Yang v Scerri [2007] NSWLEC 592
• Category: Principal judgment
• Parties: Brett Lang (Applicant); Peter Huggett and Elizabeth Huggett (Respondents)
• Representation: Brett Lang (Applicant in person); Peter Huggett (Respondent in person)
• File Number(s): 20095 of 2012

Judgment

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

1 ACTING COMMISSIONER: Mr Lang, the applicant in this matter, states that, since 2008, three cones have fallen from a Bunya Pine that grows on a neighbouring property. He says the Bunya Pine is likely to drop cones in and around his pool area and that a Bangalow Palm is likely to drop fronds onto an entertaining area, including a seat. Mr Lang seeks orders for the removal of both trees on the grounds that they are likely to cause damage to his property in the near future or injury to a person. If removal is not ordered by the Court he seeks orders for pruning, cabling and annual inspection and de-coning of the Bunya Pine and for regular inspection and de-fronding of the palm.

2 Both trees grow on the respondent's property near the common boundary. Mr Huggett, the respondent, does not want the trees removed but is willing to undertake regular de-coning and de-fronding to avoid the trees causing damage to his neighbour's property or injury.

3 I must determine if the Court has jurisdiction under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006 (the Act) to make any orders regarding the trees. Then, if orders can be made, I will consider the matters in s 12 of the Act before making appropriate orders as described in s 9 of the Act.

Onsite hearing

4 The hearing took place onsite, beginning with a view of the trees from the applicant's property and then from the respondent's. The Bunya Pine is close to 15 metres tall. It is healthy. Its stem is bifurcated but there is no sign that the bifurcation is likely to fail in the near future. It has limbs over the applicant's property. It shed two cones in 2008 and one cone in 2012. All three fell onto the applicant's property, falling into hedges.

5 The Bangalow Palm is healthy. Fronds fall on a regular but occasional basis, some becoming caught in foliage of other trees and shrubs.

Submissions

6 Mr Lang submits that the Bunya Pine has already caused damage to his hedge. He says it will shed more cones over the pool area; that over time its limbs will extend well over the pool; and that falling cones have the potential to cause serious injury or death. He says the tree was about six metres tall when he moved into his property in 1999. The pool was already on his property.

7 Mr Lang submits that, although the report of Mr Huggett's arborist, Mr Kokot, recommended annual inspection of the Bunya Pine, this has not been done. He says that the density of the tree's crown may prevent cones being seen during an inspection from the ground.

8 Mr Lang says the tree does not contribute to privacy as the foliage is above sightlines between properties.

9 If removal is not ordered, Mr Lang wants the tree inspected and de-coned annually. As allowed in Adamski v Betty [2007] NSWLEC 200, he would like the option to have an arborist supervise this exercise.

10 Mr Huggett has lived at his property for more than 30 years and says he planted the Bunya Pine about 15 years ago. He says that most of the crown is on his side of the tree. He has never seen a cone in the tree and none has fallen into his property. He is willing to have any dangerous cones removed.

11 Because Mr Kokot's 2008 report raised doubt in the respondent's mind about the Bunya Pine's ability to produce cones, both parties made submissions about the tree's age, its size, and its fruiting potential. I see no reason to doubt Mr Lang's claim that three cones have fallen from the tree into his property and therefore there is no need to say anything more on this matter other than: I accept that this Bunya Pine can produce cones.

12 Mr Lang submits that the Bangalow Palm poses a risk of damage to plants and injury to people using the entertainment area. A seat he built two years ago, to replace a seat that was there for more than ten years, is adjacent to the boundary beneath the palm. He has similar palms on his own property and de-fronds them from a ladder. He says that after a frond dies on Mr Huggett's palm it may remain hanging for about a week before falling, and the seat cannot be used during that time.

13 Mr Huggett submits that fronds fall only occasionally from the palm, that they die in a regular pattern and thus their fall is predictable. Some fronds get caught in other foliage, so not all fall to the ground.

Jurisdiction

14 The Bunya Pine is likely to form more cones that may fall and cause damage or injury during the next summer. This is within the next 12 months, which Brown C, Hoffman C and Fakes AC considered as a reasonable definition of "the near future" in Yang v Scerri [2007] NSWLEC 592. Therefore under s 10(2) of the Act the Court has jurisdiction over the Bunya Pine.

15 Considering both the frequency of frond-fall and the frequency of use of the area beneath the palm, I conclude that the risk of injury from palm fronds in the next 12 months is so low as to not require the Court to make orders for the palm. This is not to say that the applicant does not perceive a risk, however I note that Mr Lang rebuilt a seat beneath the palm only two years ago despite this perception. Any damage that fronds may cause to other vegetation is likely to be minimal. Even if the risk of injury or damage is sufficient to enliven the Court's jurisdiction, I find that the risk is de minimis, or too small to be concerned with. Hence no orders will be made for the palm. I note that Mr Huggett expressed his willingness to remove hanging fronds as he sees them.

Matters to consider

16 Mr Huggett enjoys the benefits that the Bunya Pine offers. It contributes to the landscaping of his property, to shading and provides pleasant amenity. If it is possible to retain the tree, he would like to. Concerns raised by Mr Lang about the tree's structural integrity, in particular the potential for the stem bifurcation to become hazardous and for limbs to extend over his property in a hazardous fashion, are long-term issues, neither of which is likely to be problematic in the near future. The Bunya Pine has grown above the pool area and poses a risk of damage or injury caused by falling cones. This risk can be mitigated by practical means, as ordered by the Court in similar situations, without removing the tree.

Orders

17 While I appreciate the potential for other long-term problems to arise with the Bunya Pine, it is the possibility of falling cones that may cause damage in the next 12 months which I must address. Therefore the orders of the court will deal with this issue, and are as follows:

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

(2) During the month of December every year, beginning 2012, the respondent is to engage and pay for an arborist (minimum AQF Level 3) with all appropriate insurances to conduct a climbing inspection of the Bunya Pine. During that inspection any cones greater than 80mm in any dimension are to be removed. Any limb removal required to access the entire crown for inspection and de-coning is to be undertaken at the same time. These works are to be done in accordance with AS4373 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(3) The respondent is to give the applicant two weeks' notice of the inspection and works in (2).

(4) The applicant is to provide all access required for the works in (2) during reasonable hours.

(5) The applicant may engage an arborist up to AQF Level 5 to supervise the works in (2), in which case he is to present the respondent with a receipted invoice for the supervision within 14 days of the works.

(6) The respondent is to pay the applicant the amount of the invoice in order (5) within 14 days of receiving it.

(7) If no receipted invoice is received within 14 days of the inspection and de-coning, order (6) lapses.

D Galwey

Acting Commissioner of the Court

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Decision last updated: 07 May 2012