Land and Environment Court New South Wales

• Medium Neutral Citation: Burke v Springer [2012] NSWLEC 1245
• Hearing dates: 27 August 2012
• Decision date: 27 August 2012
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application to prune tree upheld

• Catchwords: TREES [NEIGHBOURS] Damage to property; injury to persons
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Category: Principal judgment
• Parties: Mr B Burke (Applicant); Ms G Springer (Respondent)
• Representation: Applicant: Mr B Burke (Litigant in person0; Respondent: Mr C Springer (Agent)
• File Number(s): 20551 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 s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by the owner of a property in Beecroft against the owner of a tree growing on an adjoining property.

2 The applicant is seeking orders for the removal of all dangerous branches that overhang his backyard. These orders are sought on the basis that falling branches from the tree have caused damage to the applicant's property and could continue to do so. The applicant is also concerned that falling branches may cause injury to anyone on his property.

3 According to the applicant's evidence, in late January/ February 2010, in calm conditions, a large live branch dropped from the tree, damaging a fence panel in the process. Photographs taken at the time illustrate the large size of the branch and the extent to which it covered the applicant's yard.

4 The respondent does not dispute the fact that a branch fell and damaged the applicant's property. In correspondence tendered as part of the respondent's evidence, it appears that the respondent was prepared to allow the applicant access to the tree to prune it at his expense. The respondent's material also includes an approval from Hornsby Shire Council, under the Tree Preservation Order, for pruning of the canopy by up to 10%. The respondent contends that she should not be required to do anything more than she has already offered.

5 As neither party engaged an arborist to be present at the hearing, my determination is based on the expertise I bring to the Court.

6 The tree is a large and established Eucalyptus pilularis (Blackbutt) growing at the rear of the respondent's property. Its size and location suggest it is likely to be a remnant of the original forest. The tree is within two metres of the dividing fence between the parties' properties and a portion of the canopy overhangs the applicant's backyard.

7 In my opinion, the tree is healthy with a normal amount of dead wood that would reasonably be expected of a tree of its apparent age and location. I saw no obvious structural defects. The point from which the large branch failed is clearly visible. There are wounds on some branches that I am told are associated with the failure of the large branch. The reported weather conditions at the time of the failure, and the nature of the wound on the trunk, indicate that the failure may be an example of the phenomenon of "summer branch drop" or "sudden limb failure". This type of failure is considered to be unpredictable.

8 There is a large, long branch extending along the eastern edge of the applicant's property over a chook shed. This branch has some terminal dead wood and a number of small epicormic shoots growing on its upper surface. It is possible that the epicormic growth is a response to greater exposure to sunlight as a consequence of the loss of the large branch growing above it. Other parts of the tree's canopy overhang the applicant's backyard but I saw nothing, apart from some dead wood (including detached 'hangers'), that indicate any obvious or predictable problems.

9 In applications under Part 2 of the Act, the key jurisdictional test is found in s 10(2). This states that the Court must not make an order under this Part unless it is satisfied that the tree has caused, is causing, or could in the near future cause, damage to property or injury to any person. If any element of this section is satisfied then the court's powers to make orders under s 9 are engaged.

10 In this matter, I am satisfied that the tree has caused damage to the applicant's property. I am also satisfied that, given the amount of dead wood, its location in the canopy, and the predictable nature of the failure of dead wood, that the tree could in the near future cause damage to the applicant's property or injury to any person.

11 Therefore as s 10(2) is satisfied, I can consider what, if any orders are appropriate in the circumstances.

12 This requires consideration of a number of matters under s 12 of the Act. The following are relevant in the circumstances:

• The tree is wholly within the respondent's property (s 12(a));
• The removal of one large live limb and the removal of dead wood will have no detrimental impact on the tree's health or structure. While the tree has had one limb fail suddenly, there is no evidence of other similar failures, and removal of all overhanging branches is not justified at this stage. The dead wood at the end of extended limb to the east of the applicant's property would be difficult to access from within the tree or from the ground (s 12(b2));
• As the tree is likely to be a remnant of the original forest, it will contribute to the local ecosystem and to biodiversity (s 12d));
• The tree contributes to the natural landscape and scenic value of the land on which it is situated and contributes to the landscape character of the area (s 12(e)(f));
• The respondent has council permission to prune the tree but has not acted on it as yet (s 12(h)(ii)(i)(ii)).

13 After considering the evidence and the matters in s 12, I am of the opinion that the long branch that extends to the east over the applicant's chook shed should be removed at the branch collar. As stated above, the failure of dead wood is predictable. Given the proximity of the trunk of the tree to the common boundary, I consider it reasonable to require dead wood to be removed from all overhanging parts of the tree for a distance of 4m inside the respondent's boundary. As there are several detached dead branches ('hangers") caught up in the tree that could fall and cause damage, these are to be removed. I also consider it appropriate to order periodic removal of dead branches.

14 In the majority of matters where pruning or removal is ordered, the cost of doing so sits with the respondent. I see no reason to order otherwise.

15 Therefore, the Orders of the Court are:

(1) The application for the pruning of overhanging branches is upheld in part.

(2) Within 60 days of the date of these orders, the respondent is to engage and pay for an AQF level 3 arborist to remove the lowest limb growing to the east over the applicant's chook shed. The branch is to be removed back to the trunk at the branch collar. All hanging branches, as defined in AS4373:2007 are to be removed. In addition, all dead wood down to 30 mm in diameter is to be removed from all parts of the tree that overhang the applicant's property to a distance of 4 m inside the respondent's property. This work is to be carried out in accordance with AS4373: 2007 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(3) On two days or reasonable notice, the applicant is to provide all necessary access for the work to be carried out in a safe and efficient manner. Similar access is to be provided for the purpose of quoting.

(4) Every two years within two weeks either side of the anniversary of the pruning in Order (2), the respondent is to engage and pay for an AQF level 3 arborist to remove all dead wood down to 30 mm in diameter from all parts of the tree that overhang the applicant's property to a distance of 4 m inside the respondent's property. This work is to be carried out in accordance with AS4373: 2007 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(5) On two days or reasonable notice, the applicant is to provide all necessary access for the work to be carried out in a safe and efficient manner. Similar access is to be provided for the purpose of quoting.

_______________________

J Fakes

Commissioner of the Court

Decision last updated: 30 August 2012