Po & Dossan v Warham [2008] NSWLEC 1238

Land and Environment Court of New South Wales

CITATION : Po & Dossan v Warham [2008] NSWLEC 1238

APPLICANTS I Po & V Dossan PARTIES : RESPONDENT P & M Warham

FILE NUMBER(S) : 20476 of 2007

CORAM: Moore C - Fakes AC

KEY ISSUES: Trees (Neighbours) :- Pruning of deadwood

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING: 18 June 2008

EX TEMPORE JUDGMENT DATE : 18 June 2008

APPLICANTS Mr V Dossan LEGAL REPRESENTATIVES: RESPONDENTS Ms L Jones, agent Raine & Horne Rouse Hill/Kellyville

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

MOORE C FAKES AC

18 June 2008

07/20476 Po & Dossan v Warham

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. The consequence of the Court's decision in this application is the making of formal orders pursuant to s 9 of the Trees (Disputes Between Neighbours) Act 2006 . These orders are not reproduced as part of this decision but a copy the Court's Orders may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/

1 COMMISSIONERS: On 22 May 2007, Mr Po and Mr Dossan lodged a joint application at Blacktown Local Court concerning a tree located on 26/19 Torrance Crescent, Quakers Hill. At the time of lodgement of the application, that property was owned by Mr and Ms De Audney. Between the date of lodging the application and 13 August 2007 when Acting Commissioner Thyer attended the site, title to the property had changed hands so that the registered proprietors were now Mr and Ms Warham - the respondents who have now been joined to these proceedings. 2 At the time Acting Commissioner Thyer attended the site, although there had been informal service of the application on both the real estate agent and solicitor acting on behalf of the De Audneys, no notice had been provided to the Warhams as the registered proprietors of the property. They had had neither notice of the details of the application nor any opportunity to attend when Acting Commissioner Thyer attended in August 2007. As a consequence, no proper hearing of the application took place on that day. 3 Subsequently, procedural steps were undertaken which have culminated in this hearing (and which have included appropriate service on Mr and Ms Warham of the application). 4 The Warhams have been provided with an opportunity to make submissions in writing, as they are resident in Vietnam. Ms Jones, a representative of the real estate firm which manages the property for the Warhams, has attended on their behalf at this hearing. With her assistance, the Warhams arranged for us to have access to their property and to inspect the tree. 5 Mr Po and Mr Dossan, when lodging the original application, gave as the address of the property potentially affected in as being in Torrance Crescent. That is Mr Po's address, Mr Dossan's address is in Kennington Avenue and is immediately adjacent and to the east of Mr Po's address. Mr Dossan's yard is under the canopy of part of the tree. Although Mr Dossan is not properly formally a party to the proceedings, we have accepted his right to speak on behalf of Mr Po (who was unable to attend) and we have taken into account matters raised by both of them concerning the tree. 6 The application that is made is made on the basis of likely risk of injury to people – being a basis of jurisdiction for the Court pursuant to s 10(2)(b)of the Trees (Disputes Between Neighbours) Act 2006. 7 We have carefully inspected the tree. Although the application originally sought orders from the Court to chop down the tree, Mr Dossan has put to us this morning that what in reality is sought is the removal of all branches of the tree back to the boundary of the Warhams' property. 8 Mr Dossan has given evidence that there have been on occasions in the past when branches have fallen from the tree into the rear of his property (which is an area where his grandchildren play) and into part of the rear of Mr Po's property – Mr Po having two young children. The branches which have fallen have been up to 2 m long. On Mr Dossan's evidence, these have been dead branches. A photograph of one such branch, which is clearly a dead branch, has been provided as part of the supporting material with the application. Mr Dossan has not given any oral evidence nor does any of the written material provided indicate that there have been any instances of a live branch failure from the tree. 9 We have also carefully examined the base of the tree on the Warhams' property. We have not had access to Mr Po's property for this purpose. 10 There is a deal of deadwood presently in the canopy of the tree. We are satisfied, on the basis of the evidence (both written and oral) that there has been in the past and, whilst the deadwood remains in the canopy of the tree, there is likely to be, in the future, a risk of injury to persons. The jurisdiction of the Court under the Act is therefore enlivened. 11 We have carefully considered the range of matters that we should encompass in any orders to address this problem and whether the problem is sufficiently serious to require such orders to be made. 12 First, we are satisfied that there is a sufficient likely future risk of injury to warrant removal of the deadwood from the tree. 13 Although Mr Dossan has drawn our attention to what he says is past pruning activities in the tree and the fact that the tree has a lean on it towards his and Mr Po's property, we are not satisfied, having examined the tree and considering such of its ground attachment as we have access to and looking at the attachment of the tree's branches, that there is any reason to order any significant intervention with the tree going beyond the removal of deadwood from its canopy. We are certainly not satisfied (the onus lying on the applicants in these proceedings) that there is any reason to grant the original relief sought to remove the tree. Nor are we are satisfied that there is any likely risk of injury from live branch failure and therefore any basis upon which to order major pruning of the tree. 14 We are therefore satisfied that the appropriate orders that we should make are: 1. All deadwood of 30 mm or greater at the point of attachment is to be removed; 2. Such removal is to take place within 90 days of the date of the orders of the Court; 3. Such removal is to be at the expense of the respondents; 4. Such removal is to be undertaken by an AQF level 3 arborist with appropriate insurances; 5. Access is to be permitted through the first applicant's property (if required by the arborist undertaking the work in (1)) with such access to be at a reasonable hour of the day; on reasonable notice and with the first applicant to have the opportunity to have such access supervised if he wishes to do so; 6. Pruning of deadwood of the size ordered in (1) [with such further pruning also subject to the provisions in (3), (4) and (5)] is to be repeated at intervals of not in greater than two years from the date of the orders; and 7. All pruning is to be undertaken in accordance with Australian Standard 4373 of 2007 – Pruning of Amenity Trees. 15 Prior to giving this decision, we raised with Mr Dossan the question of whether he was prepared to permit access through his property for the purposes of work on the tree. He has indicated that he is prepared to agree to such access on the basis that such access would be on reasonable notice to him; at a reasonable hour of the day; and that he would have the opportunity to supervise such access if it were to be undertaken. We have no power to order that he provide such access but we note that such access may be necessary for the purpose of fulfilling the orders that we propose to make and that any failure by Mr Dossan to provide access may result in a frustration of the ability of the respondents to undertake the work ordered.