Land and Environment Court of New South Wales CITATION : Webster v O'Brien [2008] NSWLEC 1439 APPLICANT Ian and Julie Webster PARTIES : RESPONDENT Julie and Stephen O'Brien FILE NUMBER(S) : 20691 of 2008 CORAM: Fakes AC KEY ISSUES: Trees (Neighbours) :- Removal of tree, risk of injury to persons, damage to property. LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 CASES CITED: Yang v Scerri [2007] NSWLEC 592 Black v Johnson (No 2) [2007] NSWLEC 513 DATES OF HEARING: 24/10/2008 EX TEMPORE JUDGMENT DATE : 24 October 2008 APPLICANT Mr I. and Mrs J. Webster, litigants in person LEGAL REPRESENTATIVES: RESPONDENT Mrs J. and Mr S.O'Brien, litigants in person JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Fakes AC 24 October 2008 20691 of 2008 Ian and Julie Webster v Julie and Stephen O'Brien JUDGMENT This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 ACTING COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 made by Mr and Mrs Webster of 47 Henwood Avenue Wagga Wagga against the owners of a tree located at 49 Henwood Avenue Wagga Wagga. That property is owned by Mr and Mrs O'Brien. 2 The tree is a Eucalyptus albens (White Box) located at the rear northern corner of the respondents' property within about 1.5 m of the side boundary fence between them and the applicants. Part of the canopy overhangs the far western corner of the applicants' property that being a row of conifers along their back fence. 3 The applicants seek the removal of the tree as they contend that it poses a risk of injury to persons and that the tree has caused, and could cause further damage, to their property. 4 They are also claiming compensation for a range of costs, those being; $722.50 in legal fees (including the lodgement fee for this application) $50.00 fee to Wagga Wagga City Council, $418.00 for tree report and $179.00 for the cost of a chainsaw that they purchased to remove a fallen limb from the tree. This is a total of $1,369.50. 5 The tree was viewed from both properties with the aid of binoculars. It is a late mature specimen with a healthy canopy. It is highly likely to be a remnant of the original White Box woodland. There is evidence of many branch failures, the most recent being a large limb that failed onto the applicants' property in June 2008. This was reported to have failed on a calm evening. A number of small Thuja occidentalis trees planted in a row had some small branches damaged. Several wooden sleepers on a raised garden bed were dislodged. 6 Previous failures were reported to have occurred under storm conditions but with only small branches falling onto the applicants' property. With respect to the most recent failure, from the evidence of the remaining section and photographs provided by the applicants with their application, it is likely this failure was due to a phenomenon known as "sudden limb failure" or "summer branch drop". However, there may have been some other contributing factor that was not apparent from the ground. 7 There is some old epicormic growth from previous failure points in various parts of the tree. Most of the failures have occurred over what is now the respondents' property. There are several hollows throughout the tree including the section from which the limb failed in June this year. This particular hollow was seen to contain bees and was reported to have been used by starlings. Other hollows were reported to be used by both native and exotic species of birds. 8 Under section 10(2) of the Act, the Court must not make an order unless it is satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant's property, or injury to persons. In Yang v Scerri [2007] NSWLEC 592, a rule of thumb, which I consider is also appropriate here, puts the near future as being a period of 12 months from the date of the determination. 9 In this case no injury has been sustained and there is nothing to indicate that injury is likely to occur in the near future. 10 Under s 12, the Court must also consider a number of other matters. The relevant clauses in this case are: (a) The tree is wholly located on the respondents' property. (d) The tree does make a contribution to local biodiversity as it is a remnant White Box located within about 100 m of other White Box retained as part of the subdivision and close to a reserve. (e) The tree does make a contribution to the scenic value of the land on which it is located. (f) It does make a contribution to public amenity as it is clearly visible to passers by due to its position on the ridge and the absence of many other trees. (h)(ii) and (i)(ii) Steps taken by the owners or applicants to prevent or rectify damage or injury. o The applicants did not notify the tree owners of the limb failure that occurred in June 2008. o The applicants sought permission from Wagga Wagga City Council, under their Tree Management Policy, to prune overhanging branches. Pruning was approved subject to adequate notice being given to the tree owners. o When the works were organised by the applicants, the respondents contend that they were given only about 12 hours notice and that this was inadequate. As a result, the works did not proceed. (j) Other matters. o The respondents bought their property in 2002. The applicants purchased their property in August 2005. The tree was clearly there before the subdivision. o In Black v Johnson (No 2) [2007] NSWLEC 513, the existence of a tree prior to a structure, or in this case a garden, that has subsequently been damaged by the tree is not a matter likely to be taken into consideration on the question of whether or not some order should be made for some interference with the tree. However, it is to be taken into account when determining the apportioning of costs. o The tree overhangs a relatively small portion of the applicants' property and is a portion that is well away from house and other more developed areas of the garden. 11 After viewing the evidence, I am satisfied that the tree has caused some minor damage to the applicants' garden. The structure of the remaining section of the tree from which the branch failed in June 2008 has evidence of another failure and is decayed and is therefore at risk of further failure that may cause future damage or injury to the applicants who are keen gardeners. 12 The orders of the court are: (1) The application to remove the tree is refused. (2) The application for compensation is refused as it is beyond the jurisdiction of the Court in these matters to award costs associated with the making of an application. It is also inappropriate to order compensation for the purchase of the chainsaw. (3) The most easterly section of the tree, that being the section from which the branch failed in June 2008, is to be removed back to the main trunk. [In the absence of a camera to record the location of the final cut, the section to be removed was pointed out to the applicants and respondents and an acknowledgment was obtained from both parties that they understood that only that section of the tree was to be removed.] (4) This work is to be carried out by an AQF level 3 arborist, with appropriate insurances, in accordance with AS4373:2007 and The WorkCover Code of Practice for the Amenity Tree Industry. (5) The respondents are to organise and pay for this work to be carried out within 90 days of the date of these orders. This is subject to the arborist checking the cavity for any signs of nesting native birds or animals. If these are found, work is not to proceed until appropriate wildlife specialists can safely relocate the young. (6) The respondents are to give the applicants at least 3 days notice of the works. (7) The applicants are to provide the arborist with any access that they may require in order to safely carry out the works. (8) The applicants are to reimburse the respondents 33% of the costs of the works within 21 days of the presentation of a copy of the tax invoice for those works. ___________________ J Fakes Acting Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.