Land and Environment Court of New South Wales CITATION : Prasad v Strata Plan 47610 [2008] NSWLEC 1180 APPLICANT Shui Prasad PARTIES : RESPONDENT Strata Plan 47610 FILE NUMBER(S) : 20113 of 2008 CORAM: Thyer AC KEY ISSUES: Trees (Neighbours) :- Damage to property, removal of tree, personal injury or death to persons. LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 DATES OF HEARING: 30/04/2008 EX TEMPORE JUDGMENT DATE : 30 April 2008 APPLICANT Shui Prasad, litigant in person LEGAL REPRESENTATIVES: RESPONDENT Mr G. Christmas, solicitor of Marrickville Council JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Thyer AC 30 April 2008 20113 of 2008 Shui Prasad v Strata Plan 47610 JUDGMENT The decision was given at the hearing on 30 April 2008. This written judgment reflects the background information and the findings. 1 ACTING COMMISSIONER: Mr Prasad built his block of home units in Petersham about 10 years ago. The two-storey units appear from the street to be neat and well-kept. 2 A Eucalyptus tree in the front yard of the adjoining units was about 2 m tall when Mr Prasad built his units. The tree is now about 15 m tall with branches overhanging the driveway of Mr Prasad's units. The tree appears to be the cause of the lift, lean and cracking of the front fence of Strata Plan 47610 that owns the tree. 3 Mr Prasad is concerned that the tree will damage the adjacent brick pier of his front fence. That pier is the gate post of his driveway and supports the mechanism for the automatic gate. He is also concerned that the tree or its branches may fall in high winds causing damage to property and personal injury or death. 4 He has written to the Strata Plan 47610 managers in 2002, 2004 and 2007. In each case the managers have applied to Marrickville Council for removal of the tree, but that has been refused by the Council. 5 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 before making an order regarding the 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? 6 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? The Issues 7 The issues in this case are: + Is there a dispute between the neighbours or do both parties want the tree removed ? + Has the tree caused damage to the brick gatepost of Mr Prasad's front fence ? + Is the tree likely to cause damage in the near future ? + Is the tree likely to cause injury ? Is there a dispute between the neighbours? 8 Mr Bennett the authorised representative of Strata plan 47610 advised that the Owners Corporation did not want the tree removed, and had used the applications to Council as a means of obtaining formal refusal. He also produced a petition signed by the majority of Owners Corporation members in 2007, calling for the tree to be retained. 9 On the basis of the explanation and the petition, I am persuaded that the Owners Corporation do wish to retain the tree. Therefore I accept that there is a dispute between the neighbours, and that I should consider the merits of the application. Has the tree caused damage to Mr Prasad's property ? 10 Mr Prasad has noted the damage to the brick fence of Strata Plan 47610 at 34-36 Livingstone Road, Petersham and that damage was observed at the hearing. However that fence is not Mr Prasad's property so damage to it does not meet s 10(2) (a) of the Act. 11 Mr Prasad is concerned that the brick fence pier of Strata Plan 47610 at 34-36 Livingstone Road, Petersham is leaning against his brick gate post at 28-30 Livingstone Road, Petersham. I observed that the brickwork of the front fence of Strata Plan 47610 had failed and that the upper part of the end pier was leaning against Mr Prasad's brick gate post. 12 I observed that Mr Prasad's brick gate post seemed to be vertical and roughly in line with the other brick piers in his front fence. I also observed that the gates met perfectly in the middle indicating that the post was not out of alignment. Mr Prasad stated at the hearing that the brick gatepost had not moved out of vertical in any direction. 13 Mr Prasad is also concerned that there is a crack in the mortar between his gate post and its footing. I examined the mortar crack and without evidence to the contrary, I consider it likely to be from the render sagging away from the bottom edge of the brick, not from the brickwork being raised. 14 On the basis of the information above I conclude that the brick gatepost of Mr Prasad's front fence has not been damaged. 15 I note that Mr Prasad is also concerned about branches overhanging his driveway, and that these may touch vehicles using the driveway but I have not been informed of any damage caused by the branches. Is the tree likely to cause damage to Mr Prasad's property in the near future ? 16 I note that the tree is a semi-mature Tallow-wood tree (Eucalyptus microcorys) that has grown more than 12 m in height since 1997. I observed that the tree seemed to be in good condition with a well tapered single trunk and wide branch junctions with no included bark visible. Although the ground at the base of the tree was partly obscured by shrubs, I did not see and was not given any evidence of socketing around the trunk or soil heave that may indicate the roots are not firmly held in the ground. 17 The tree has been inspected three times by Marrickville Council in the six years prior to the hearing, and again at the hearing. In each case the Council has formed the opinion that the tree should remain. 18 I note Mr Prasad's concerns that roots of the tree have damaged the wall of 34-36 Livingstone Road, and may damage his brick gatepost in the future. I note also that in 2004 the Council recommended exploration of tree management options other than removal to prevent property damage in the future, and that at the hearing I understood Mr Bennett to say that they would obtain the advice of an arborist in that regard. 19 Therefore, even though the tree has grown rapidly over the last 10 years and is close to Mr Prasad's brick gatepost, I find that none of the evidence presented has convinced me that the tree will damage Mr Prasad's property in the near future. I am also of the opinion that avoidance of possible damage may be as simple as doing minor root pruning near the brick gatepost. 20 With regard to the above ground parts of the tree, I could not see any evidence of live branch failure in the tree, and the Council Trees Officer present at the hearing and the Owners Corporation representative agreed they were not aware of any live branch failure. 21 With regard to leaves and branches over the driveway, Mr Prasad could do minor pruning to provide clearance for vehicles. Is the tree likely to cause injury ? 22 As there is no evidence that the tree is likely to cause damage in the near future, and as Strata Plan 46710 has agreed at the hearing to have an arborist do some work on the tree, I find it unlikely that the tree will cause any injury. Benefits provided by the tree 23 I am obliged under s 12 of the Act to consider benefits provided by the tree. I consider that the tree makes a substantial contribution to the visual public amenity of this busy street, and provides a valuable screen for those units at the front of Strata Plan 47610. Conclusion 24 I find that the tree has not caused damage to Mr Prasad's property, and is unlikely to cause damage to his property in the near future or injury to any person. Therefore none of the four tests in s 10(2) (a) and (b) of the Act are met, and I am obliged to dismiss the application. 25 However, I am pleased to note that during the hearing the parties, with the helpful assistance of the Council representatives, reached an agreement for pruning of the tree and other works, so I dismiss the application noting the following agreement. Agreement of the parties 1) Strata Plan 47610 will prune off the third branch up on the northern side of the tree and remove any parts of that branch from Mr Prasad's property; 2) Marrickville Council will provide without further application a letter giving consent to removal of the branch in 1) above; 3) The pruning shall be done by an arborist having AQF Level 3 qualifications and suitable insurances, selected by Strata Plan 47610; 4) The pruning work shall be done in accordance with AS 4373 2007 Pruning of amenity trees ; 5) Strata Plan 47610 will remove or repair the northern brick pier of their fence above the level of the coping course of their fence, in order to stop their fence putting any pressure on Mr Prasad's adjacent brick pier gatepost; 6) The pruning work in 1) and the fence work in 5) above shall be at the cost of Strata Plan 47610 and shall be completed by 31 July 2008; 7) Strata Plan 47610 will give Mr Prasad at least one week notice of the date of the pruning work; 8) Mr Prasad will allow access for the pruning work at reasonable times, and may supervise that work. ___________________ Peter Thyer 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.