Land and Environment Court New South Wales

• Medium Neutral Citation: Fitzgerald v Attard [2012] NSWLEC 1233
• Hearing dates: 21 August 2012
• Decision date: 21 August 2012
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application to removed trees dismissed; pruning ordered

• Catchwords: TREES [NEIGHBOURS] Damage to property; potential injury; electrical services; declining tree
• Legislation Cited: Trees (Disputes between Neighbours) Act 2006
• Cases Cited: Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29; Ghazal v Vella (No. 2) NSWLEC 1340
• Category: Principal judgment
• Parties: Ms Terri-Mae Fitzgerald (Applicant); Mr Andrew Attard (Respondent)
• Representation: Applicant: Ms Terri-Mae Fitzgerald (litigant in person); Respondent: Mr Andrew Attard (litigant in person)
• File Number(s): 20555 of 2012

Judgment

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

1 COMMISSIONER: This is an application made under s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by the owner of a property in Woy Woy against the owner of two trees growing on an adjoining property.

2 The applicant seeks orders for the removal of the two trees on the basis that branches from the trees may fall onto power lines near her property or onto her property. In the event of the powerlines coming down this may electrify a metal fence or her pool thus potentially causing injury to anyone who may be in contact with those things. The applicant also contends that branches from the paperbark tree have fallen onto her pool cover and have damaged the cover and the clips that support it. She is concerned that branches will continue to fall, particularly in windy conditions, and cause damage or injury. The applicant is concerned that wet soil conditions near the trees may predispose them to complete failure, potentially bringing down powerlines and causing damage or injury.

3 The respondent has owned his property since December 2011. The application to the Court was made in June 2012.

4 There are two trees in contention. Tree 1 is a Melaleuca quinquenervia (Broad-leafed Paperbark) and the other is most likely a Eucalyptus botryoides (Southern Mahogany). The size, species and location of the trees (relatively close to the shoreline of Woy Woy Inlet - Brisbane Water) suggest they may be remnants of the original vegetation.

5 The trunk of the paperbark is approximately 5.5 metres from the dividing fence. Its canopy overhangs the applicant's property by about 1 metre. The Eucalypt is some 13 metres to the northwest of the northwestern corner of the applicant's property. No part of this tree overhangs or is close to the applicant's land.

6 The Paperbark is in poor condition and a large portion of the upper canopy may be dead; some lower sections and individual branches are alive. The Eucalypt is healthy and in good condition. I noted the damp soil near the base of the Paperbark. I saw no signs such as unusual leaning of the trees, or heaving, compression or cracking of the soil at their bases to suggest that whole tree failure was likely in the foreseeable future.

7 Along the southern boundary of the respondent's property are low voltage powerlines servicing the respondent's and other properties. The spans of wires adjoining the applicant's property are uninsulated and vertically configured. The spans to the west of the northwestern corner of the applicant's property, and closest to the Eucalypt, are insulated. The dividing fence between the parties' properties is a sheet metal fence on timber footings.

8 The applicant has lived on her property for about eleven years. She built an in-ground swimming pool in the western section of her garden. She stated that the Paperbark was well established at that time but she didn't think it would cause any problems.

9 According to the application and confirmed in oral evidence given on site, the applicant approached Ausgrid, the network owner, with her concerns about the extent of overhang and interference with the Paperbark and the powerlines as well as her general safety concerns.

10 In April 2012, Ausgrid's tree pruning contractors removed a number of branches from the paperbark. The respondent followed up this work with the contractors. A representative from the contracting company met the respondent on site and confirmed that the clearances met Ausgrid's guidelines and from their perspective, no further pruning was required.

11 With the experience and expertise I bring to the Court, I can confirm that while some branches remain above the wires, the clearances are typical industry standards for the nature of the electrical service.

12 In oral evidence, the respondent stated that he has applied to Gosford Council for permission to remove both trees. He stated that the advice from the relevant council officer was that permission to remove the trees under the Tree Preservation Order is unlikely to be given however, it may be considered if a development application is lodged for other works.

13 In applications made under Part 2 of the Act, critical jurisdictional tests are found in s 10(2). This section states that the Court must not make an order unless it is satisfied that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant's property or is likely to cause injury to any person.

14 The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. At [62] Craig J states in part "something more than a theoretical possibility is required in order to engage the power under [the Trees] Act...".

15 If any one of the tests is met for either of the trees, then the Court's powers under s 9 of the Act to make any orders it thinks fit to remedy, restrain or prevent damage or injury, are engaged. If no tests are met, then the Court cannot make any orders.

16 Dealing first with the Eucalypt, as discussed above, there are no signs that this tree is likely to fall over or, in any direct or indirect way, cause damage to the applicant's property or injure anyone on her property. The respondent raised no concerns about injury to anyone on his land. The applicant did not provide any evidence of past damage; her concerns are generally about the risk of incidental electrification of her property.

17 After considering the situation, I find that the applicant's concerns, although strongly held, are squarely in the realm of 'theoretical possibility'. There is no evidence to suggest what the applicant fears will ever come to fruition. Therefore as s 10(2) is not satisfied for the Eucalypt, the Court has no jurisdiction to make any orders for any interference with tree and this element of the application is dismissed.

18 Turning to the Paperbark, as with the Eucalypt, there is no evidence to suggest the whole tree is likely to fall over. These trees are typically found in wet and swampy conditions.

19 The applicant was unable to produce any evidence of the branches she says have fallen onto her pool cover since the respondent has owned the property as she says she regularly clears them up and disposes of them in the green waste system. The only materials on the pool cover at the time of the hearing were leaves and other small debris from the paperbark.

20 However, while the tree now only overhangs the applicant's property by about one metre, the poor condition of the upper canopy is such that branches will become more brittle as they decline and their failure is highly probable. Therefore there is something more than a theoretical possibility that branches could fail, particularly in strong winds, and fall into the applicant's property and cause, in the near future, damage or injury.

21 Therefore as s 10(2) is met, I can consider what, if any orders, are appropriate in the circumstances. This requires consideration of a number of discretionary matters in s 12.

22 Relevant here:

• The Paperbark is on the respondent's property (s 12(a)).
• Removal of some sections of the canopy will have no detrimental impact on the tree (s 12(b2)).
• While the tree is clearly declining, it will still make some contribution to the local ecosystem (s 12(d)).
• The applicant located her pool near an established tree. Action has been taken by both parties to have the tree pruned/ removed (s (h)(ii)).

23 After considering the evidence and the discretionary matters, I am not satisfied that removal is justified however I am satisfied that further pruning is required to reduce the risk of future damage or injury. Reduction pruning will be ordered. I consider a distance inside the respondent's property of 3m will give a sufficient margin of safety for wind blown branches. The work must be carried out in accordance with AS4373: 2007 - Pruning of Amenity Trees. Compliance with the relevant provisions of this standard may require pruning beyond 3m.

24 Should the Council grant permission for removal of the tree, that is a matter between the respondent and the Council [see Ghazal v Vella (No. 2) NSWLEC 1340 at [6]-[9] for a discussion of the relative powers of councils and the Court]. However, until such time, the following Court orders apply.

25 The Orders of the Court are:

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

(2) Within 60 days of the date of these orders the respondent is engage and pay for an AQF level 3 arborist with appropriate experience and insurance cover to remove all branches of the Paperbark that are within three metres of the metal dividing fence between the parties' properties. The three metre line is to be on the respondent's property.

(3) The work is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry and the general and specific provisions of AS4373: 2007 Pruning of Amenity Trees - reduction pruning.

(4) On at least two days notice, the applicant is to give the contractor all necessary access, if required, for the work to be carried out in a safe and efficient manner.

___________________

J Fakes

Commissioner of the Court

Decision last updated: 22 August 2012