Land and Environment Court of New South Wales CITATION : Kilic v Brown [2010] NSWLEC 1036 APPLICANTS Hulya & Zeki Kilic PARTIES : RESPONDENT Anthony Brown FILE NUMBER(S) : 20962 of 2009 CORAM: Fakes C TREES (NEIGHBOURS) :- Damage to property KEY ISSUES: Injury to persons Noxious weed LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 Noxious Weeds Act 1993 Black v Johnson (No 2) [2007] NSWLEC 513 CASES CITED: Dooley & anor v Nevell [2007] NSWLEC 715 Yang v Scerri [2007] NSWLEC 592 DATES OF HEARING: 22/02/10 DATE OF JUDGMENT: 22 February 2010 EX TEMPORE JUDGMENT DATE : 22 February 2010 APPLICANTS Hulya & Zeki Kilic (litigants in person) LEGAL REPRESENTATIVES: RESPONDENT Anthony Brown (litigant in person) JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Fakes C 22 February 2010 20962 of 2009 Kilic v Brown JUDGMENT This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 COMMISSIONER: This is an application pursuant to s7 of the Trees (Disputes Between Neighbours) Act 2006 made by Mr and Mrs Kilic of 10 Undercliffe Road Earlwood against the owners of 3 trees growing at 1A Carboona Avenue Earlwood. The owners of that property are Mr and Mrs Brown. 2 The applicants are seeking the pruning of two trees and the removal of one as they contend that the trees pose a risk of future damage to property and a risk of injury to persons. 3 The trees are a Ligustrum lucidum (Broadleaf Privet), a Quercus robur (English Oak) and a Jacaranda mimosifolia (Jacaranda) growing on the northern boundary of the respondents' property. 4 The applicants are seeking the removal of the Privet on the basis of it being a 'noxious' weed and until recently, it was overhanging the dividing fence into their property. At the time of the on-site hearing, the tree had been severely lopped. According to the applicants Mr Brown had done this some two weeks ago. 5 Under s10(2) of the Act, the Court must not make an order unless it is satisfied that the trees have caused, are causing, or are likely in the near future to cause, damage to the applicant's property or are a risk of 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. Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of whether the damage or risk is sufficiently serious to warrant the intervention of the Court, and if so what should be ordered and who should pay. These tests must be applied to each tree subject to this application. 6 Whether or not a tree is classified as a noxious weed is not relevant unless it satisfies at least one of the tests under s 10(2). There is no specified relationship between the Noxious Weeds Act 1993 No 11 and the Trees (Disputes Between Neighbours) Act 2006. 7 With respect to this tree, the tree has not caused, is not causing, and is unlikely, in the near future, to cause damage to property nor is it a risk of injury to persons. As none of the tests are satisfied, the Court has no jurisdiction to make an order to interfere with this tree. 8 The Oak tree is a mature specimen located in the western corner of the respondents' front garden. The applicants stated that they thought the tree was about 60 years old. Based on its size, this assumption seems reasonable. 9 The tree substantially overhangs the applicant's property. Prior to the purchase of the block in 2007, the RTA owned the land on which the Kilic house now stands. Photographs of the site prior to construction shows the branches of the oak hanging down to the ground. The applicants commenced building their two-storey dwelling in late 2007 and moved into it in 2009. The applicants stated that they approached the respondents some three years ago about pruning the tree. The respondents have owned their property for seven years. 10 The applicants want the tree pruned back from their house by 2-3m and then shaped. They are concerned about low branches, falling dead wood, branches touching the gutter and the fallout of a "black fungus" onto their tiles and rendered and painted façade. They also want the tree inspected on a regular basis. 11 Evidence on site shows a small branch touching one section of guttering. The tree is generally clear of the building. It is obvious that low branches have been cut and there was no difficulty accessing the area beneath the canopy. The pruning was carried out by the applicants. The respondents raised concerns that this was done in breach of Canterbury Council's Tree Preservation Order. 12 The tree is healthy and there are no obvious structural defects. There is evidence of an infestation of Oak Leaf Miner – this is normal for English Oaks in Sydney. The 'black fungus' is probably Sooty Mould, also common on oaks and many other species, but not in evidence at the time of the hearing. There is internal dead wood, some of which is detached and caught in the upper canopy. The amount of dead wood is also normal for a tree of this age. However, it is possible, that should it fail, it may cause damage to property or injury to a person. 13 The area beneath the Oak is divided by a metal fence that separates the front and back yards of the applicants' property. The section towards the rear is near water tanks and is effectively the rear of the house. It does not appear to be an area in frequent use. The surface is grass. Similarly the section at the front of the house is a grassed area between the dividing fence and the driveway. This area is similarly unlikely to be frequently used. The applicants stated that their fear of falling branches precluded them from using the area beneath the oak tree. 14 The Jacaranda is growing to the west of the Oak in the very western corner of the respondents' front garden. Its growth habit has been modified by the Oak and the Jacaranda has grown towards the north and the west. To the north, it overhangs the applicants' property. 15 The tree is healthy and there are no obvious structural defects. There is a small amount of deadwood over the grassed area to the north. The applicants are concerned about dead wood falling from the tree and the continued growth of the tree towards the driveway. They are concerned about potential damage to their cars or injury to people. At the time of the hearing, there was very little foliage overhanging the driveway. 16 Apart from s 10(2), the Court must also consider a number of matters under s 12 of the Act. The relevant clauses in this case are: (a) The trees are wholly located on the respondents' property. (d) Despite being exotic, the trees are likely to contribute to biodiversity. (e) The trees contribute to the scenic value of the land on which they are growing and to the locality. The applicants acknowledged their attractiveness. (f) The trees are visible from adjoining roads and nearby properties and thus have value to public amenity. (h) The applicants purchased the property in 2007. A condition of consent was imposed by Canterbury Council that the trees be protected during construction. This was done. The house was designed to accommodate the trees however, there was some dispute between the parties about changes in setbacks. The applicants sought permission from Canterbury Council to prune the trees and the council has allowed a 20% reduction. The respondents contend that they raised the issue about the oak tree as soon as the auction for the block was concluded. They state that they have offered to discuss pruning with the applicants. That offer appears to have been withdrawn after the applicants undertook some pruning. 17 Returning to s 10(2). The matter of the Privet has been addressed. With respect to the Oak, the tree does have dead wood that could potentially cause injury. Apart from a newly constructed metal fence, there is very little that could be damaged by falling dead wood. It should also be noted that the fence has been installed in a manner that is unsympathetic to the future growth of the Oak and the Jacaranda. The branch against the gutter is small and no damage has occurred at this stage but may do so. 18 With respect to the fallout of sooty mould, no damage has been observed and even it was, the Court has no jurisdiction to make an order as it is not the tree itself but another organism that lives on the tree from time to time. To that end, this Act does not apply to these other organisms; see Dooley & anor v Nevell [2007] NSWLEC 715. 19 As one of the tests under s 10(2) is satisfied with respect to the dead wood in the Oak and the Jacaranda, the jurisdiction is enlivened and the Court can make an order. The Court has discretion under s 9 to make a range of orders and consider who should pay. 20 I consider the tree dispute principle 'the tree was there first', (see Black v Johnson (No 2) [2007] NSWLEC 513), to be applicable in this matter. Whilst the applicants have considered the location of the tree in the design of their house, the condition and the form of the Oak tree were clearly obvious when they purchased the property and constructed their house. I therefore consider it reasonable that the applicants contribute to the costs of pruning the tree. 21 The Orders of the Court are: 1. The application to remove the Privet is dismissed. 2. The application to prune the Jacaranda and Oak is upheld in part. 3. The respondents are to engage and pay for an AQF level 3 arborist to remove all dead wood > 30mm in diameter, and hangers, from the section of the Oak tree that overhangs the applicants' property to a point 1m within the respondent's property. The section of Oak touching the applicants' gutter is to be reduced to an appropriate lower lateral branch to achieve 1m clearance between the tree and the gutter. 4. The arborist is to remove any dead wood > 30mm in diameter from any section of the Jacaranda that overhangs the applicants' property. 5. This work is to be carried out in accordance with AS4373:2007 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry . 6. This work is to be completed within 30 days of the date of these orders. 7. The applicants are to provide all reasonable access for these works to be carried out in a safe and efficient manner. 8. The respondents are to give the applicants at least 2 working days notice of the works. 9. The applicants are to pay the respondents 20% of the cost of these works within 21 days of the receipt of a tax invoice for the completed works. _________________________ J Fakes 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. 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