Land and Environment Court New South Wales

• Medium Neutral Citation: Franklin & anor v Webster [2012] NSWLEC 1243
• Hearing dates: 24 August 2012
• Decision date: 24 August 2012
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application to remove tree dismissed; pruning ordered

• Catchwords: TREES [NEIGHBOURS] Damage to property; injury to persons
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Category: Principal judgment
• Parties: Mr B Franklin and Mrs C Franklin (Applicants); Ms M Webster (Respondent)
• Representation: Applicants: B & C Franklin (Litigants in person); Respondent: M Webster (Litigant in person)
• File Number(s): 20567 of 2012

Judgment

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

1 COMMISSIONER: In the rear garden of a property in Balgowlah is a large and mature Eucalyptus grandis (Flooded Gum). This tree overhangs several properties. The owners of the adjoining property to the rear (east) have applied to the Court for orders to remove the tree. The application is made under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act).

2 The applicants contend that branches falling from the tree have caused damage to their property and could continue to do so. They are also concerned about potential injury as they say there was a near miss from a falling branch earlier this year. Given the size of the tree, they are also concerned that if it were to be uprooted in a westerly wind, it would cause catastrophic damage to their dwelling and serious injury to anyone there at the time.

3 The applicants have lived on their property for ten years. The respondent has owned her property for eleven years and during that time she has had the tree pruned on three occasions. The most recent pruning was in June 2012; dead wood was removed and the canopy reduced by 10% - within the limits imposed by Manly Council's Tree Preservation Order. However, since the last pruning, several dead branches have fallen from the tree into the applicants' backyard.

4 The tree is a very established and substantial Flooded Gum. As a consequence of the application, the respondent engaged Mr Peter Maish, a consulting arborist, to inspect the tree and make recommendations for its management. Mr Maish was present at the hearing and gave oral evidence.

5 The hearing commenced on the respondent's property. Mr Maish estimates the tree to be about 22 m tall and 1.4 m in diameter at breast height. He confirmed the statement in his report that he had not viewed the tree from the applicants' property when he initially inspected the tree. In his opinion, the tree is healthy and structurally sound. When questioned about its likely stability, he stated that he saw no signs that would indicate the likelihood of whole tree failure.

6 With the expertise I bring to the court, I concur with Mr Maish's opinions on the health, structure and stability of the tree.

7 The tree was also viewed from the applicants' property. The canopy extends across half of the applicants' backyard and overhangs a garden shed and a smaller garden locker.

8 The applicants stated that falling branches have broken tiles on the shed roof and damaged a birdbath. The respondent did not contest the past damage. Mr Maish stated that he saw no branches on the applicants' side of the fence that he considers pose a risk of injury at the moment.

9 The Court was shown several dead branches up to two metres long that the applicants contend have fallen from the tree since it was pruned in June. The applicants' main concern is that even though the respondent has had the tree pruned, branches have fallen into their property and will continue to do so unless the tree is removed or heavily pruned of any overhanging branches.

10 In applications under Part 2, the key jurisdictional test is s 10(2). This states that the Court must not make any order under this Part unless it is satisfied that the tree, the subject of the application, has caused, is causing, or could in the near future cause damage to the applicant's property or cause injury to any person. If any element of s 10(2) is satisfied, then the Court's powers under s 9 are engaged. Section 9 enables the Court to make any order it thinks fit to remedy, restrain or prevent damage or injury.

11 On the evidence before me I am satisfied that the tree has caused damage to the applicants property. As there are still some dead branches in parts of the canopy that overhang the applicants' property, it is possible that damage could occur in the near future. Therefore as s 10(2) is satisfied, the Court's jurisdiction is engaged.

12 Before considering what, if any, orders are appropriate in the circumstances, I must consider a number of discretionary matters in s 12 of the Act. Relevant here:

• the tree is wholly located on the respondent's property;
• pruning of dead wood and some overhanging branches will have no detrimental impact on the health of the tree as long as any pruning is carried out in accordance with AS4373: 2007;
• the tree contributes to the scenic value and amenity of the respondent's property;
• it can be seen from surrounding streets and therefore has value to public amenity;
• while not a local species, it will contribute to biodiversity - Mr Maish's report refers to a Rainbow Lorikeet's nest in the tree;
• the respondent has regularly engaged arborists to carry out routine maintenance work on the tree.

13 Again, in bringing my practical expertise to the Court, I consider that a likely reason larger dead wood was not removed from the ends of branches overhanging the applicants' property is the physical difficulty of accessing those parts of the tree. In his report Mr Maish identifies two branches which overhang the applicants' yard where previous pruning has resulted in a kinked branch structure. The lowest of these branches has little remaining foliage. There is another branch higher in the canopy that overhangs the applicants' property; it too has only a small amount of terminal foliage. In my view, supported on site by Mr Maish, this branch is likely to decline in the near future.

14 After considering the evidence and the circumstances, I can see no reason to order the removal of the tree. However, given the configuration of the tree, the nature of several overhanging branches, combined with the practical difficulty of accessing the ends of the particular branches that overhang the applicants' property, I consider it reasonable to order the removal of three live branches back to the trunk at the branch collar. I will also order periodic removal of dead wood. The branches to be removed are identified in a photograph attached to this judgment.

15 Therefore the orders of the Court are:

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

(2) Within 60 days of the date of these orders the respondent is to engage and pay for an AQF level 3 arborist with appropriate insurance cover to remove the three branches identified in the photograph attached to this judgment. In addition any remaining dead wood in excess of 30 mm in diameter in any part of the canopy that overhangs the applicants' property to 4 metres inside the respondent's property is to be removed at that time. All pruning work must be carried out in accordance with the general and specific provisions of AS4373:2007 Pruning of Amenity Trees and the NSW WorkCover Code of Practice for the Amenity Tree Industry.

(3) If required by the arborist, and on at least two days notice, the applicants are to provide all reasonable access to enable the work to be carried out in a safe and efficient manner. Similarly, access for the purposes of quoting must be provided on reasonable notice.

(4) Every two years within two weeks either side of the date of the pruning in order 2, the respondent is to engage and pay for an AFF level 3 arborist to remove dead wood in excess of 30 mm in diameter in any part of the canopy that overhangs the applicants' property to 4 metres inside the respondent's property. All pruning work must be carried out in accordance with the general and specific provisions of AS4373:2007 Pruning of Amenity Trees and the NSW WorkCover Code of Practice for the Amenity Tree Industry.

(5) If required by the arborist, and on at least two days notice, the applicants are to provide all reasonable access to enable the work to be carried out in a safe and efficient manner. Similarly, access for the purposes of quoting must be provided on reasonable notice.

__________________________

J Fakes

Commissioner of the Court

ANNEXURE A

Amendments

07 September 2012 - typographical error, "applicant" changed to "respondent" in first line
Amended paragraphs: Order (2)

Decision last updated: 07 September 2012