Land and Environment Court New South Wales

• Medium Neutral Citation: Langton v Aguilar [2012] NSWLEC 1155
• Hearing dates: 6 June 2012
• Decision date: 06 June 2012
• Jurisdiction: Class 2
• Before: Galwey AC

Decision

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

(2)The respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) to remove the tree to ground level. This work is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.

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

(4)The respondent is to give the applicants at least three days' notice of the works.

(5) The applicants are to allow all reasonable access for the works in (2) during reasonable times of the day.

• Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS): risk of damage to property; removal ordered.
• Legislation Cited: Environmental Planning and Assessment Act 1979; Native Vegetation Act 2003; Trees (Disputes Between Neighbours) Act 2006
• Category: Principal judgment
• Parties: Mrs Linda Langton and Mr Kevin Langton (Applicants); Ms Rosemarie Aguilar (Respondent)
• Representation: Mrs Linda Langton -Litigant in person (Applicants); Ms Rosemarie Aguilar – Litigant in person (Respondent)
• File Number(s): 20114 of 2012

Judgment

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

1 ACTING COMMISSIONER: A large gum tree grows in the front garden adjoining the Langtons' property, overhanging their driveway and dwelling. Due to their concerns that the tree may shed limbs or entirely fall onto their property, they seek orders from the Court for its removal under s 7 of the Trees (Disputes Between Neighbours) Act 2006.

2 Ms Aguilar owns the adjoining property on which the tree is situated. Since the Langtons submitted their application to the Court she has applied to Council for, and received from Council, permission to remove the tree. She intends to remove the tree but says she cannot afford to at present. Her property is on the market.

3 I am to determine whether the Court has jurisdiction over the tree and what orders would be appropriate to prevent damage or injury.

Onsite hearing

4 The hearing took place onsite, providing an opportunity to view the tree.

5 The gum tree is a mature specimen over 25 m tall. Its stem has a slight lean towards the Langtons' property and the crown is uneven with most of its weight also towards the Langtons' property. The crown is slightly sparse and there is a greater amount of deadwood present than would be expected of a healthy tree.

6 Mrs Langton has retained, and showed to the Court, a large dead limb that fell from the tree onto their property some time ago. It fell next to the fence but is large enough to have caused significant damage to a vehicle if it landed on such a target. There are numerous dead limbs of a similar size present in the crown, some over the Langtons' driveway.

7 At the base of the tree there are multiple areas of exposed heartwood between buttress roots. Large fungal brackets, or fruiting bodies, indicate the presence of wood decay fungus in this heartwood at the base of the tree. This is likely to compromise its structural integrity. Blacktown City Council's approval for tree removal notes in its reasons: "Bracket fungi identified, coupled with lean of tree, could pose potential danger."

8 Mrs Langton expressed her concerns regarding the risk posed by the tree. Ms Aguilar told the Court that she could not afford to pay for the tree's removal.

Jurisdiction

9 According to s 10(2) of the Act the Court must not make an order under this Part unless it is satisfied that the tree concerned:

(a) has caused, is causing, or is likely in the near future to cause, damage to the applicant's property, or

(b) is likely to cause injury to any person.

10 Failure of this tree would be likely to cause severe damage to the Langtons' dwelling and would be likely to cause injury. I am satisfied that there is a risk of such failure occurring in the near future. Therefore two of the tests at s 10(2) are met and the Court has jurisdiction to make orders.

Matters to consider

11 Section 12 of the Act requires the Court to consider a range of matters before making orders. These are addressed below.

S 12(a). The tree is situated close to the respondent's front boundary and is not far from the common boundary with the applicants' property. It overhangs the applicants' premises.

S 12(b). Interference with the tree would require consent from Blacktown City Council under the Environmental Planning and Assessment Act 1979. Such consent has been obtained by the respondent.

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

S 12(b2). Pruning the tree to remove deadwood only would not adversely affect the tree; however pruning alone cannot sufficiently mitigate the risk of tree failure.

S 12(b3). The tree contributes to the landscaping of the land on which it is situated. The tree provides shade and contributes to the property's amenity.

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

S 12(d). This native tree contributes to the local ecosystem. It provides food and habitat for birds and other fauna.

S 12(e). The tree is over 20 metres tall. Its canopy contributes to the natural landscape and scenic value of the respondent's land.

S 12(f). The tree is situated at the front of the property near the street and contributes to public amenity.

S 12(g). Removal of the tree is unlikely to have any impact on soil stability or the water table.

S 12(h) and 12(i). There are no other relevant factors contributing to the likelihood of the tree causing damage. The applicants notified the tree's owner, through her estate agent, that they were concerned about the safety of the tree. The respondent did not take any action prior to the Langtons lodging their application with the Court.

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

Conclusions

12 This large native tree contributes to the landscape value and amenity of the neighbourhood. However it is in poor condition with decay at its base, giving rise to a risk of failure in the near future and a likelihood of damage and injury. If pruning could sufficiently reduce the risk of damage and injury that would surely be a preferable option, but due to the extent of basal decay at its base removal of the entire tree is required.

13 I have taken into consideration Ms Aguilar's expressed difficulties in being able to afford the cost of tree removal, but have had to balance this against the expectations of the Langtons that the risk to their property and family be addressed within a reasonable timeframe.

Orders

14 Therefore the orders of the court are:

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

(2) The respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) to remove the tree to ground level. This work is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.

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

(4) The respondent is to give the applicants at least three days' notice of the works.

(5) The applicants are to allow all reasonable access for the works in (2) during reasonable times of the day.

D Galwey

Acting Commissioner of the Court

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Decision last updated: 08 June 2012