Land and Environment Court of New South Wales CITATION : Schellings v The Estate of the Late Patricia Rofe [2009] NSWLEC 1332 APPLICANTS Ron Schellings PARTIES : Sandra Schellings RESPONDENT The Estate of the Late Patricia Rofe FILE NUMBER(S) : 20447 of 2009 CORAM: Thyer AC KEY ISSUES: TREES (NEIGHBOURS) :- pruning or removal of tree: risk of damage to property or injury to person(s) LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 CASES CITED: Yang v Scerri [2007] NSWLEC 592 DATES OF HEARING: 11 September 2009 EX TEMPORE JUDGMENT DATE : 11 September 2009 APPLICANT Ron Schellings (litigant in person) LEGAL REPRESENTATIVES: Sandra Schellings (litigant in person) RESPONDENT Robynne Lever (daughter) JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Thyer AC 11 September 2009 20447 of 2009 Ron and Sandra Schellings v The Estate of the late Patricia Rofe JUDGMENT 1 COMMISSIONER: A mature Sydney Blue Gum (the tree) is growing on 5 Mobbs Road, Terrigal (the property) about 0.5 m from the western dividing fence. The property is owned by the Estate of the late Patricia Rofe. Mrs Robynne Lever attended the hearing for the Estate. 2 Mr and Mrs Schellings are the owners of 13 Avon Close, Terrigal the adjoining property to the west. The tree is located about halfway along their eastern boundary, and its western branches overhang their grassed backyard and swimming pool by about 8 m. They claim that the tree has dropped numerous dead branches onto their property since they purchased in 2006, and dropped a live branch about 4 m long in June 2009. They make an application under the Trees (Disputes Between Neighbours) Act 2006 (the Act) to rectify or prevent property damage, and to prevent risk of injury to people. They seek orders that the tree be pruned or removed at the owner's expense. 3 The parties agree that the dividing fence between the properties is on the common boundary. On that basis, the trunk of the tree is entirely on the property of the Estate, meeting s 4(3) and s 7 of the Act, and as I find that the tree is a "tree" within the meaning of that term in s 3(1) of the Act, there is an application that the Court may determine 4 When assessing an application under the Act, 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 by the tree before making an order regarding that tree. These tests are: Has the tree caused damage to the applicant's property on the land? Is the tree now causing damage to the applicant's property on the land? Is the tree likely in the near future to cause damage to the applicant's property on the land? Is the tree likely to cause injury to any person? 5 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? 6 Further, before determining an application, the Court is to consider the matters in s 12 of the Act. The tree 7 Mrs Lever estimates the tree to be 50 to 60 years old, and has been advised that it is a Sydney Blue Gum (Eucalyptus saligna) that is healthy and sound. She also states that the tree was on the property when her family purchased in 1978, that Gosford City Council did not approve of the clearing of the area of trees at that time, and that the tree is now protected by the Gosford City Council Tree Preservation Order. Apart from the branch that fell in June 2009, she is not aware of any other live branches that have fallen from the tree. Neither party provided an arboricultural report regarding the tree. 8 I observed the tree to be about 25 m tall with a well balanced crown spreading about 15 m, and no structural defects that would indicate the likely failure of large live branches or the whole tree. There is a small amount of deadwood throughout the crown, with some of those dead braches up to 100 mm diameter. A broken live branch stub is visible high in the western side of the crown, and is likely to be the origin of the live branch that fell in June 2009. I did not observe, and was not informed of any specific cause of the failure of the live branch that was about 4 m long and 70 mm thick, and fell at about 9 am in early June 2009. Damage 9 The Schellings lived in their property for about a year and a half after purchasing it in mid 2006. They say the tree dropped about 20 dead branches over that time, the branches being about 30 mm thick and 1.2 m long. None of those branches caused any damage. The tree did not drop any live branches while they were living there. 10 The Schellings property has been tenanted for the last 18 months. The tenant's umbrella was damaged by the live branch that fell in June 2009, and they say that the fabric of their trampoline was damaged by a falling "dry limb" that was about 4 m long and 20 cm in diameter. They also say that another "dry limb" about 10 m long and 30 cm diameter hit the ground less than a metre from where their daughter was playing. Mrs Lever doubts the size of those fallen dead branches, and I cannot see any stubs or scars in the tree where such large dead branches may have originated. I find it likely that there has been some error of measurement and or assessment of those two reported dead branches, and that the branches where in fact substantially smaller. 11 With regard to damage, there is no claim that the Schellings' property has been damaged in the past, or is now being damaged by the tree, thus the first two tests in s 10(2)(a) of the Act are not met. Damage to the tenants property does not meet the tests in s 10(2)(a) of the Act. Further, although there is dead wood in the tree, falling dead wood has not caused damage to the Schellings' property in the last 3 years, and no evidence has been provided that such damage is likely in the near future, that being a period of about 12 months as discussed by the Court in Yang v Scerri [2007]NSWLEC 592. On that basis I find that none of the tests in s 10(2)(a) of the Act are met. Injury 12 I note the ongoing history of dead branches falling from the tree, and the tenant's claim that some of those have fallen very close, in distance and time, to their children in the backyard. On the basis that there are further dead branches in the tree, that the backyard and pool are used by the tenant's family which includes children, and that the tree overhangs a large part of the backyard, I find there is a likely risk of injury to persons from falling dead branches. That risk meets the test in s 10(2)(b) of the Act, and is sufficiently serious to warrant the Court making orders for pruning of the dead branches. 13 With regard to the live branch that fell in June 2009, the evidence is that this is the first live branch of significant size that has fallen from the tree. I also note that no evidence has been provided that the tree has any faults that would lead to further live branch fall, and there is no evidence provided about the weather conditions at the time the branch fell, or over the few days prior, that might assist in understanding the reason for the branch fall. On the basis that this is the only recorded live branch failure from the tree in about 50 years, I do not find that further live branch failure is likely to cause injury, and I will not order pruning of live branches. s 12 Considerations 14 Addressing the relevant matters in s 12 of the Act: (a) Location of the tree in relation to the boundary and any premises. This is a large tree located within 0.5 m of the common boundary, and its branches overhang about half of the Schellings' backyard. (b) Was consent required or obtained to interfere with the tree. The tree is protected by the Gosford City Council Tree Preservation Order. In response to an application by the Schellings, the Council has issued Tree Works Consent No 6384117, valid for 5 years from 16 June 2009, granting approval for: " Removal of dead branches and for the reduction of branches to boundary line from one (1) Eucalyptus tree located on rear property ." (c) Historical, cultural, social or scientific value of the tree. No evidence has been provided that the tree has historical, cultural or scientific value. (d) Contribution of the tree to local ecosystem and biodiversity. The tree may be a remnant or a seedling from the local bushland. The Council is currently conducting a survey, to determine if the Yellow-bellied Glider, which is an endangered species in the Gosford area, uses the trees on the Estate property, including the tree, as a corridor. Mrs Lever claims that the trees on the estate property are used by several varieties of nesting possums and their young, many varieties of native birds (including parrots, Regent Honey Eaters, migratory birds and owls), bats, small marsupials as well as lizards, etc. (e) Contribution of the tree to natural landscape and scenic value of the property or the locality. The tree is visible from Avon Close and is part of the woodland setting on the Estate property that Mrs Lever says is loved by many of the neighbours. Conclusion 15 I find that the tree should be retained, on the basis of the benefits that it provides, and that pruning of dead branches should be ordered to prevent the likely risk of injury to persons. 16 I find that the dead branches should be pruned at the cost of the Estate of the late Patricia Rofe. Orders 17 The application is upheld in part and the Court makes the following Orders: 1. These orders apply to 5 Mobbs Road, Terrigal; 2. All deadwood with a diameter greater than 20 mm shall be pruned and removed from the crown of the tree by 15 December 2009, at the cost of the Estate of the late Patricia Rofe, by an AQF Level 3 arborist with suitable insurances and in accordance with the Australian Standard AS 4373-2007 Pruning of Amenity Trees , and the NSW WorkCover Code of Practice for the Amenity Tree Industry (1998) ; 3. The Schellings shall grant access over their property to carry out the pruning and removal of dead branches, at reasonable times and on reasonable notice. ___________________ Peter Thyer Acting Commissioner of the Court The formal orders may be obtained from the Court's registry upon payment of a fee. Details are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/ 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.