Land and Environment Court of New South Wales CITATION : Murphy v Maggio [2008] NSWLEC 1132 APPLICANT Mr P Murphy PARTIES : RESPONDENT Mr N Maggio FILE NUMBER(S) : 20037 of 2008 CORAM: Moore C - Fakes AC KEY ISSUES: Trees (Neighbours) :- LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 DATES OF HEARING: 19 March 2008 EX TEMPORE JUDGMENT DATE : 19 March 2008 APPLICANT In person LEGAL REPRESENTATIVES: RESPONDENT No appearance JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES MOORE C THYER AC 19 March 2008 08/20037 Murphy v Maggio JUDGMENT 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: Mr Maggio owns a property at 26 Balfour Street, Caringbah. On the northwestern corner of the property is located a significant eucalypt which is some 15 to 25 m in height and spread. There have been a number of instances of summer branch drop from this tree including one on to the property to the north owned by Mr and Mrs Murphy. Another summer branch drop has occurred onto the power lines which run along Balfour Street on its eastern side outside the two properties. 2 Mr Murphy has also provided information concerning earlier branch failures – some of which involved dead branches and some of which have resulted in insurance claims being met for damage to his house. Mr Murphy has applied to the Court for an order pursuant to the Trees (Disputes Between Neighbours) Act 2006 requiring that Mr Maggio remove the tree. 3 Mr Murphy has provided documents to demonstrate that a copy of the directions setting the matter down for hearing was served on Sutherland Shire Council and on the real estate agents, McDonald Partners, who were acting for Mr Maggio when the house was tenanted. Mr Maggio has not attended the proceedings although, by accident, Mr Maggio's father is present and able to hear this decision being delivered and to have heard Mr Murphy's submissions concerning the tree. 4 We have spoken to Mr Maggio by mobile telephone today and informed him of the fact that we proposed to continue to hear and make a determination on the merits but would provide him with an opportunity to make submissions about any proposed orders we might make that required either interference with or removal of the tree. Mr Maggio indicated on the telephone that, after the branch dropped on the powerlines in late 2007, he approached Sutherland Shire Council for permission to remove the tree and that permission had been denied. He indicated that he had been given consent by the council to prune branches which were overhanging Mr Murphy's house. 5 Mr Maggio indicated that he did not want to remove the tree but that, if we were minded to order pruning of it, he did not need a long period with which to deal with this but that, if we were minded to order the removal of the tree, he requested a longer period of time to enable him to afford to do so. 6 We have carefully examined the tree and the points at which it has failed. We have observed a variety of smaller elements of dead wood in the upper canopy of the tree. The branch drops of live branches of which we have evidence have, on Mr Murphy's evidence, taken place under conditions that had not been excessively stormy or windy. This is consistent with what is known as "summer branch drop". 7 We are satisfied, on the basis of what Mr Murphy had told us, that, consistent with the first of tests set out in s 10(2) of the Act, the tree has, in the past, caused damage to Mr Murphy's property. Therefore, we have jurisdiction to consider the application. We are also satisfied, on the basis of his uncontested evidence concerning the branch falling on the power lines in December 2007, that that branch fall also constituted a likely risk of injury to a person - being the test under s 10(2)(b) of the Act. 8 Considerable elements of the tree continue to overhang the power lines and we are satisfied, under the circumstances, that there also continues to be a likely risk of injury to persons as well as a likely risk of damage to Mr Murphy's property in the near future. 9 As a consequence of those conclusions, the appropriate course of action to take is to require Mr Maggio to undertake activities with tree in two stages. First, in order to remove the likelihood of any further damage in the near future being occasioned to Mr Murphy's property, we propose to order, subject to any submissions that Mr Maggio may wish to make about this, that a substantial element of the tree (being the element of the tree depicted in the photograph which will form part of the Court's orders) will be removed by him within three months of the date of those orders. We are also satisfied, because of the likely risk of injury to persons in the public domain – should there be a further significant branch failure onto the powerlines – that the remainder of the tree should also be removed but that it would be appropriate to allow Mr Maggio a longer period of time within which this is to occur. Therefore, we propose to order that the remainder of the tree be removed within nine months of the date of the orders. 10 We propose to provide Mr Maggio with a copy of these reasons and proposed orders and to provide him with in the opportunity to make submissions to us, within 21 days of the date of providing those orders and reasons to him, on the overall matters contained in the orders. Tim Moore Judy Fakes 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.