Land and Environment Court of New South Wales CITATION : Dallas v Watson [2009] NSWLEC 1056 APPLICANT Mary Dallas PARTIES : RESPONDENT Glenys Watson FILE NUMBER(S) : 20003 of 2009 CORAM: Thyer AC KEY ISSUES: TREES (NEIGHBOURS) :- Tree on common boundary. Proportion of cost of removal to each party ordered in accordance with survey showing two thirds of tree is on one property. LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 CASES CITED: Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 DATES OF HEARING: 18/02/2009 EX TEMPORE JUDGMENT DATE : 18 February 2009 APPLICANT Mr P. Condon, solicitor of Peter Condon & Associates LEGAL REPRESENTATIVES: RESPONDENT Mr N. Velcic, solicitor of Nikola Velcic & Associates JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Thyer AC 18 February 2009 20003 of 2009 Mary Dallas v Glenys Watson JUDGMENT This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 ACTING COMMISSIONER: A large Sydney Blue Gum is growing on the eastern boundary of the backyard of 29 Waterview Street, Balmain. This property is owned by Ms Watson. 2 Ms Dallas is the owner of 31 Waterview Street, Balmain, the adjoining property to the east. She makes an application under the Trees (Disputes Between Neighbours) Act 2006 on the basis of risk of injury. She seeks removal of the tree at Ms Watson's cost. 3 When assessing an application under the Trees (Disputes Between Neighbours) Act 2006 the Court must be satisfied that one or more of the four tests in s 10(2) (a) and (b) of the Act are met by the tree before making an order regarding that tree. These tests are: Has the tree caused damage to the applicant's property ? Is the tree now causing damage to the applicant's property ? Is the tree likely in the near future to cause damage to the applicant's property ? Is the tree likely to cause injury to any person? 4 Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of: Is the damage or risk sufficiently serious to warrant the Court intervening? If so, what should the Court order? Who should pay to carry out those orders? Legal representation, reports and public submission 5 a. Mr Peter Condon appears for Ms Dallas. b. Mr Nikola Velcic appears for Ms Watson. 6 Arboricultural Assessment 29 Waterview St, Balmain. 2041 by David Parker, dated 14 February 2009. Mr Parker includes a statement that he has read the expert witness code of conduct and agrees to be bound by it. 7 a. Balmain – 29 Waterview Street Lot 12 DP 125 Identification Survey on Tree by Peter Bolan and Associates Pty Ltd dated 4 February 2009. Mr Harrison who carried out the survey provides a statement that he abides by the rules stated in the "Expert Witness Code of Conduct in Schedule 7 of the Uniform Procedures Rules" (Rule 31.23). b. Surveyors Report of 31 Waterview Street, Balmain, by YSCO Geomatics, dated 21 January 2009. 8 R & L Stephenson of 33 Waterview Street, Balmain write that they support removal of the tree. Background 9 Ms Dallas attended Royal Prince Alfred Hospital Emergency Department on 22 November 2008 after being hit on the head by a falling branch of the tree. She suffered dizziness and nausea and had a small area of bruising. The photographs of that branch show it to be a live, apparently healthy branch about 4 m long and 60 mm diameter. 10 An affidavit of Ms Hutton-Williams states that she planted the tree in 1975 or 1976 while she was living at 29 Waterview Street, and that it was planted inside the fenced back garden on the property. 11 Ms Dallas was a tenant at 29 Waterview Street prior to its purchase by Ms Watson. 12 Ms Watson purchased the property in 1983, and says that the tree was smaller but still tall at that time. She states that during a conversation with Ms Dallas in the mid 1990s, Ms Dallas told her that she planted the tree. Ms Watson had the tree pruned a few years ago in response to a complaint that Ms Dallas made to Leichhardt Council about the tree. 13 The present paling dividing fence between the two properties is not the fence that existed in 1975 or 1976. The present fence is interrupted by the tree. There is also a dispute between the neighbours regarding a 'Bali hut' constructed on Ms Dallas' property; part of that hut overhangs the dividing fence. Ms Watson claims that based on the location of the tree in relation to the fence and the Bali hut, she thought the tree spanned the boundary. 14 The parties have recently obtained separate surveys to establish the location of the tree. The survey report of 31 Waterview Street, states: The boundary passes through the trunk of the tree at ground level, however, in our opinion a greater portion of the trunk stands upon the land adjoining to the South West . The survey report of 29 Waterview Street, states: It is our opinion that the boundary passes through the tree, with approximately two thirds of the tree on the subject property . 15 Ms Dallas claims that the tree has dropped branches throughout its growth history but in the last 7 – 10 years the falling branches have become increasingly larger. A large, live branch, probably about 300 mm thick fell on 1 January 2009 causing damage to roofs of both 31 and 33 Waterview Street. Sydney Water removed that branch as it was lodged in their ventilation pipe in the backyard. The tree 16 The tree is a Sydney Blue Gum (Eucalyptus saligna) about 25 m tall with a trunk diameter of about 0.6 m. The crown spreads over both Ms Watson's and Ms Dallas' backyards. The tree is visible from surrounding properties and streets. 17 I have inspected the tree and agree with both the observations and the recommendations of the arborist's report by Mr Parker dated 14 February 2009. The recommendations of that report are: Given the history of branch shedding that has occurred from this tree, other similar events are likely. The loss of branches is not seen to be a result of isolated structural defects such as branch inclusions, crossed branches or poor stem taper, which would require maintenance on the tree to prolong the life, and amenity of the tree. It is not conceivable that any type of scheduled maintenance will control any future potential loss of branches. The location of the tree being over a neighbour's property increases the potential associated hazards. It is my view that the tree should be removed and replaced with a tree more suited to the location, that being a species of a smaller size . Findings 18 On the basis of the two surveys provided, I find that the tree is situated principally on Ms Watson's land, and that Ms Dallas' application is a valid application in accordance with s 4(3) and s 7 of the Act. 19 I find on the basis of injury to Ms Dallas, that the tree has caused injury, and on the condition and location of the tree that it is likely in the future to cause injury. Therefore the tree meets the test in s 10(2)(b) of the Act. 20 I find that the tree presents a high risk of serious injury from falling live branches, and that no appropriate pruning or maintenance will reduce that risk to an acceptable level. Therefore I will order removal of the tree. 21 I find that the tree is large and visually significant in the local area, and on that basis I will order replacement tree planting in accordance with s 9(2)(j) of the Act. As the tree is jointly owned, I will order each party to plant a replacement tree on their property. 22 I find that Ms Watson has had understandable confusion in the past regarding the location of the boundary and the location of the tree in relation to the boundary. Further, I do not have a comfortable level of satisfaction that Ms Watson should have known that the tree was planted on her land, if in fact it was. On that basis I find that her request for a contribution from Ms Dallas to the cost of removal of the tree has been reasonable. 23 I find on the basis of the survey by Peter Bolan and Associates, which is not in conflict with and is more definitive than the survey by YSCO Geomatics, that the tree is located approximately two thirds on Ms Watson's property. 24 Mr Condon asked me to have regard to his evidence that the tree was planted on Ms Watson's property, in my decision about who should pay for removal of the tree. Likewise, Mr Velcic asked me to have regard to the fact that the tree is growing on the boundary, making Ms Watson and Ms Dallas joint owners of the tree. I rely on the discussion of such matters by Preston CJ in Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 [para 152, 153 and 154] to which they referred. There is no evidence that the tree has moved such as by subsidence of ground, nor is there evidence that the garden fence referred to by Ms Hutton-Williams was located on the boundary. The recent separate surveys agree that the tree is on the boundary. On that basis I find that both parties are joint owners of the tree and both have property rights in the tree. Therefore I find that the joint owners should contribute to the cost of removal of the tree. 25 As we have the benefit of a survey that quantifies the joint ownership to be two thirds on Miss Watson's land, and as she has offered to pay two thirds of the cost of tree removal, I find that payment should be made in that proportion. Orders 26 The application is upheld in part, and the Court makes the following Orders that apply to 29 Waterview Street, Balmain and 31 Waterview Street, Balmain: a. The Sydney Blue Gum tree growing on the common boundary shall be removed by 18 March 2009 with costs met two thirds by Ms Watson and one third by Ms Dallas; b. The work shall be carried out by an AQF Level 3 arborist with suitable insurances; c. The work shall be initiated and progressed by Ms Watson who shall obtain three quotations for the work and proceed with the cheapest quotation unless both parties agree otherwise; d. Ms Dallas shall grant access over her property for the work; e. The work shall take place at reasonable times, on reasonable notice, and Ms Dallas may supervise the work on her property; f. The contractor shall bill the parties separately for their portion of the cost, and each party shall be separately responsible for their payment; g. Each party shall plant a replacement tree capable of growing to a height of about 8 m, in her own backyard by 31 March 2009 and shall nurture that tree to maturity. ___________________ Peter Thyer Acting Commissioner of the Court The formal orders are not included as part of this judgment but a copy may be obtained from the Court's registry upon payment of a fee. Details are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/ 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.