Heller & Anor v Dan & Anor [2008] NSWLEC 90

Land and Environment Court of New South Wales

CITATION : Heller & Anor v Dan & Anor [2008] NSWLEC 90

APPLICANTS Mr and Mrs Heller PARTIES : RESPONDENTS Mr Dan & Ms Kijsuthinan

FILE NUMBER(S) : 21232 of 2007

CORAM: Moore C - Thyer AC

KEY ISSUES: Trees (Neighbours) - Neighbour Application :-

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

CASES CITED: Yang v Scerri [2007] NSWLEC 592

DATES OF HEARING: 11 February 2008

EX TEMPORE JUDGMENT DATE : 11 February 2008

APPLICANTS In person LEGAL REPRESENTATIVES: RESPONDENTS First respondent in person

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

MOORE C THYER AC

11 February 2008

21232 of 2007 Heller & Anor v Dan & Anor

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: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 made by Mr and Mrs Heller concerning two trees located on the adjacent property to the south owned by Mr Dan. 2 The first of the trees is a Flooded Gum (Eucalyptus grandis) at the rear of Mr Dan's property adjacent to the boundary between the properties and adjoining the barbecue and garden shed in area on the Heller's property. The second tree is a eucalypt of unknown species in the front corner of the junction between the two properties and immediately adjacent to the road reserve. Mr and Mrs Heller seek the removal of both trees on slightly differing grounds. We have considered each of the trees separately. 3 With respect to the Flooded Gum, there is a range of visible signs of dead wood and other debris from this tree on both properties and Mr and Mrs Heller gave evidence of past live branch falls. Mr Dan was not sure about whether there had been live branch falls from this tree or not but did not dispute that there might have been. The target area in the Heller's property, if any branches of significance were to fall from this tree, is the Heller's barbecue area and the clothesline. 4 There are two major branches of this tree overhanging the Heller's property. The uppermost of them has a major hollow at its point of attachment to the main leader of the tree and, at the lower of these two branches, there is some sign of possible decay at the collar of the branch where joins the main leader of the tree. We have considered the tests pursuant to s 10(2) of the Act and we are satisfied, with respect to each of these branches, as a consequence of the current or likely presence of decay at their collars, that it is likely that these branches are a risk of injury to persons in Mr and Mrs Heller's backyard. 5 With respect to the tests in s 10(2)(a), we are not satisfied that any of the remainder of the tree constitutes a likely risk of damage in the near future to Mr and Mrs Heller's property nor are we satisfied, pursuant to s 10(2)(b), that any of the remainder of the trees is a likely risk of injury to any person located on the Heller's property. Although there has been some minor damage caused by branches falling from the tree on to the Heller property, they have clearly fallen from the side adjacent to the Heller's property and the damage has been sufficiently minor that, as a matter of discretion, we would not intervene beyond the removal of the two branches we propose to be ordered to be removed - being the two branches discussed above. 6 In addition, we note that, during the course of the inspection, we saw two lorikeets using a hollow in the trunk of this tree about 5 m above the ground and below both the branches which are the subject of this decision. If we were wrong, with respect to the reminder of the tree, it is clear that the question of habitat provision required to be considered by s 12 of the Act would incline us, if necessary, into retaining the balance of the tree. 7 We note that the conclusion to retain this tree is generally consistent with the report commissioned by Mr and Mrs Heller from Warwick Varley, a consulting arborist, who provided a report to them in April 2005. Mr Varley recommended the retaining of this tree. 8 As we will also return to later, during the inspection, Mr and Mrs Heller offered to contribute 30% of the cost of any works that might be undertaken to this tree and also considered the that it would be appropriate to order that any works to this tree occur within to one month. 9 With respect to the front tree, it is a tree that has co-dominant leaders forking at about 4 m above the ground. The uphill or northern leader is primarily over the Heller's property and the downhill or southern leader is partially over Mr Dan's property and at least one significant branch from it is over the public footpath – including over the adjacent power lines serving houses in the vicinity. 10 We have uncontradicted evidence of a number of live branch drops in the recent past in both the Heller and Dan properties. There is minor damage to the Heller's driveway slab closest to the tree which damage is likely to have been caused by the tree. However, we are not satisfied that the slab displacement by lift and drop at the expansion joint at the point on the northern side of the driveway entrance has been caused by the tree. 11 We have applied the tests required pursuant to s 10(2) of the Act to this tree. Although we are satisfied that the tree has caused damage to the Heller's property, we are satisfied that the damage is trivial and we are not satisfied that it is likely in the near future (being a time period of about 12 months consistent with decision of the Court in Yang v Scerri [2007] NSWLEC 592) that such damage to the Heller's property will be repeated. We are, therefore, satisfied that, as a matter of discretion, there is no basis pursuant to s 10(2)(a) of the Act to exercise the Court's jurisdiction and make orders pursuant to s 9. 12 However, with respect to s 10(2)(b), the timeframe for the risk of injury to a person is more permissive than the timeframe contained in section 10(2)(a) and deals more with the question of foreseeability rather than the question of likelihood in the near future. We are satisfied on the bases of past branch fall that there is a likely risk of injury persons in the public domain if there is a major branch fall or trunk failure resulting in all or part of this tree falling on the power lines in the adjacent street. 13 We are satisfied, given that there is a deal of included bark at the point of separation of the leaders, that there is some possibility that failure might occur at that point. We are satisfied, as a consequence, that there is a likely risk of injury to a person because of the possibility of failure on to power lines. As a result of the likely serious consequences if that were to occur, we are satisfied that this tree should be removed. 14 With respect to the question of time for compliance, the Hellers proposed that one month would be appropriate to be allowed for any work to the back tree and three months be allowed for any work to the front tree. Mr Dan did not specify a time but objected to any requirement to conduct work within one month as this would not be sufficient time, in his view. We are satisfied the work which we proposed to order be undertaken should have a common date in order to permit all work to be done together if that is what Mr Dan determines is the appropriate method to follow. We are satisfied, as a consequence, that we should allow two months from today as a reasonable period within which that should occur. 15 We therefore propose the following orders. 1. Two branches of the Flooded Gum identified in photographs to be appended to the orders of the Court should be removed at the branch collars; 2. The entirety of the eucalypt to the front of the Dan property is to be removed to within 100 mm above ground level; 3. All pruning should be conducted in accordance with Australian Standards 4373 of 2007; 4. All work is to be carried out by an AQF level 3 arborist with appropriate insurances; 5. All work is to be completed within two months of today's date; 6. All work has to be undertaken by Mr Dan; and 7. The Hellers are to permit access to the arborist engaged to carry out the work (if such access is necessary) at a reasonable hour of the day on with the Heller's to have the ability to supervise such access if it is required. 16 We have considered how to give effect to the offer of contribution by the Heller's to undertaking the work on the rear tree. We are satisfied that it is difficult to be sure how the work between the front and rear trees would be appropriately apportioned. We are also satisfied that it would be unreasonable to require Mr Dan to get a number of quotations with such apportionment. We have therefore estimated, doing as best we can, what might be an amount equal to 30% of the work to be undertaken to the rear tree and limit the Heller's contribution to that. We are satisfied that that amount would be $200. Therefore the final order will be that the Hellers are to pay Mr Dan $200 within 28 days of the work specified in Orders 1 and 2 being completed.