Land and Environment Court of New South Wales CITATION : MacDonald v Maio & Sacco [2007] NSWLEC 349 APPLICANT Alex MacDonald PARTIES : RESPONDENTS John Maio & Antonio Sacco FILE NUMBER(S) : 20302 of 2007 CORAM: Moore C - Thyer AC KEY ISSUES: Trees (Neighbours) - Neighbour Application :- LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 DATES OF HEARING: 13 June 2007 EX TEMPORE JUDGMENT DATE : 13 June 2007 APPLICANT In person LEGAL REPRESENTATIVES: RESPONDENTS No appearance JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES MOORE C THYER AC 13 June 2007 0720302 Alex MacDonald v John Maio & Antonio Sacco 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 of 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: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act). 2 The application has been made by Mr MacDonald, a resident of 41 Tristram Road. Beacon Hill. The application concerns a Sydney Blue Gum (Eucalyptus saligna) (the tree). The tree is some 20 to 25 m in height and is located on an adjacent battleaxe allotment known as 39A Tristram Road. 3 We are satisfied that the two owners of 39A Tristram Road and Warringah Shire Council (the Council) have been served with the application. As to the first of the owners, Mr Maio, we are satisfied that he was served with the application as he attended the callover conference which set the directions for this on-site hearing. He was thus aware of its date and time. 4 As to the second owner, Mr Sacco, and the Council, we have a statutory declaration dated 28 May 2007 that the directions made at the callover hearing were served on both of them. 5 Although neither of the owners has attended this hearing of the matter, we have proceeded to consider the merits of Mr MacDonald's application. However, we will later return to how the Court will deal with this absence of the owners. 6 We have carefully considered the tree against the preliminary tests set out in s 10(2) of the Act. 7 We are satisfied, on the basis of the photographic evidence provided by Mr MacDonald and his collection, seen by us this morning, of fallen branches which have come from the tree (together with the obvious points of detachment of such branches visible from the inspection of the tree we have undertaken from his property) that the tree, consistent with s 10(2)(a) of the Act, has caused and is likely to continue to cause damage to his property. 8 Second, we are satisfied, pursuant to s 10(2)(b) of the Act, that there is a risk of injury to persons from branches falling into the rear private open space of Mr MacDonald's property. 9 Having reached those conclusions, we then turn to consider what should be the Court's response made to them. 10 Mr MacDonald's application is for the removal of tree. 11 Mr Maio, the first of the owners of the tree, did not contest such removal at the preliminary conference. We are aware that there has been an approval given by the Council, under the Council's tree preservation arrangements, for the removal of the tree. 12 We understood, from the preliminary conference, that there may be a dispute between the owners of tree as to who should pay for the removal (if it is to occur). 13 It is not the responsibility of the Court to deal with such disputes between owners of a tree. Any orders that the Court will make in these proceedings will bind both of the owners of the tree equally. 14 We are satisfied, having considered the structure of the tree that, in general terms, the attachments of its limbs to the main trunk structure of the tree are in sound condition. They are unlikely to fail in the foreseeable future. 15 There is, however, a history of dead branch detachment. 16 There are some living branches which have broken but not fallen from the tree (but with the likelihood of their detachment in the near future). These branches which have failed and are still hanging from the tree are smaller branches. This damage appears likely to have been caused by recent high winds. 17 There are no signs, whatsoever, of any active management of the tree by its owners. 18 Mr MacDonald has pointed out to us where somebody has cut into two roots located on his side of the tree (but on the property of the owners of the tree). There is no suggestion that Mr MacDonald has caused this damage. We are unable to assess the extent of the cutting. 19 The tree has distinct upper and lower canopies, elements that possibly have been caused in response to drought conditions. There are, in the context of the absence of active management of the tree, numerous dead branches, of up to 60 or 70 mm in diameter, in both the upper and lower canopy elements. 20 We are not satisfied, given an examination of the structure of the tree, that we should make an order for its removal. 21 However, the fact that the Court is not prepared to make such an order does not act to preclude the owners of the tree from giving effect to the existing consent for its removal from the Council. 22 Indeed, if the owners of the tree were to consider that compliance with the orders of the Court we propose to make were burdensome compared to the alternative of effecting the removal of the tree, this would be a matter in which the Court does not need to be involved. 23 As the owners of the tree have not attended this hearing, we do not propose to make the orders, which we consider are appropriate, in final form, but we do propose to provide a copy of what we propose to each of the owners together with a copy of this decision. 24 The Registrar will advise the owners that, if either of them wishes to be heard as to why the orders that are proposed to be made should not be made, they will have the opportunity to do so. They will be given 14 days from the date of the Registrar writing to them to indicate to the Court, in writing, that they wish to be heard. If either of them does wish to be heard, Mr MacDonald will be given an opportunity to be heard in response. 25 The primary orders which we consider appropriate to make are that: o The three significant branches that travel from the main trunk of tree in the direction of Mr MacDonald's house and rear area should be removed to points which we propose to identify in a marked photograph which will comprise an annexure to the orders of the Court; o Further, the remainder of the branches which overhang Mr MacDonald's property, are to be pruned to one third (1/3) of their present length – with the pruning to be in accordance with the reduction pruning clause of Australian Standard 4373 – 2007; and o All dead wood which is greater than 30 mm in diameter shall also be removed from the canopy of the tree. 26 As we consider that there will be ongoing problems with the tree (of the nature triggering these initial orders), we are satisfied that we should also order an annual inspection – the first of which is to be undertaken not less than eleven months from the date of the Court's orders nor more than thirteen months from the day of the Court's orders. Subsequent annual inspections are to be undertaken not less than eleven months from the date of the preceding inspection nor more than thirteen months from the date of the preceding inspection. 27 Such annual inspections are to be undertaken by an AQF Level 3 arborist with appropriate insurances. 28 As a result of these inspections, any dead wood with a diameter of greater than 30 millimetres is to be removed within 28 days of that inspection with such removal to be undertaken in accordance with Australian Standard 4373 – 2007. 29 The owners of the tree will be required to provide a written report to Mr MacDonald, within 14 days of the carrying out of such annual inspection so that he can be aware of the result of that inspection and can monitor the the removal of the dead wood required to be removed. 30 All other work to be undertaken pursuant to these orders is to be undertaken by an AQF Level 3 arborist with appropriate insurances. 31 All work ordered to be undertaken is to be paid for by the owners of the tree. 32 The initial pruning and dead wood removal will be required to be completed within 60 days of the date of the orders of the Court. Tim Moore Peter Thyer Commissioner of the Court 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.