Land and Environment Court of New South Wales CITATION : McMaster v Adams [2008] NSWLEC 1123 APPLICANT Margaret & Clifford McMaster PARTIES : RESPONDENT Patricia & Philip Adams FILE NUMBER(S) : 20013 of 2008 CORAM: Thyer AC KEY ISSUES: Neighbour Application - Trees (Neighbours) :- Removal of tree, pruning of tree, damage to property, injury to persons LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 DATES OF HEARING: 17/03/2008 EX TEMPORE JUDGMENT DATE : 17 March 2008 APPLICANT Margaret & Clifford McMaster, litigants in person LEGAL REPRESENTATIVES: RESPONDENT Patricia & Philip Adams, litigants in person JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Thyer AC 17 March 2008 20013 of 2008 Margaret & Clifford McMaster v Patricia & Philip Adams JUDGMENT The decision was given at the hearing on 17 March 2008. This written judgment reflects the background information and the findings. 1 ACTING COMMISSIONER: The Adams have lived in their waterfront home at Toronto for many years. Their grounds include sweeping lawns, gardens and numerous trees. They planted three Casuarina trees on their land beside the two-storey house next door, and the trees were a substantial size when the McMasters bought that house at 35 Brighton Avenue. A branch broke from the largest Casuarina tree 5–10 years ago, falling onto the Adams' property. The Council removed two similar trees from the reserve in front of the McMasters' home after their branches or trunk broke. The McMasters are concerned that the largest tree may break causing damage to their house or injury to them, and about the work required to clean Casuarina needles from their roof and the steep path beside their house. They also suspect that pollen from the tree may cause them slight breathing difficulties. 2 The McMasters seek removal of the largest Casuarina tree. 3 The Adams wish to keep the tree but are willing to do some pruning. 4 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? 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? The Issues 6 The issues in this case are: * Is the tree likely to cause damage in the near future ? * Is the tree likely to cause injury due to trunk or branch failure ? * Is the pollen of the tree likely to cause injury ? Is the tree likely to cause damage in the near future ? 7 The McMasters are not worried that the tree roots will fail. They recognise that this species usually has strong matted roots, and similar trees nearby did not have root problems. 8 The McMasters are concerned that the tree trunk may break due to weakening by borers and that branches may break off. They have not provided any evidence from an arborist. 9 The Adams say that they applied to Council for an inspection of the tree and report on its condition. They say that the written notice of determination that allows pruning is in fact a statement that the tree is in good condition and cannot be removed. They have not provided evidence from any other arborist. 10 When inspected during the hearing, the trunk of the tree sounded firm when tapped, and there were no borer holes visible from the ground. 11 The branch that broke out 5-10 years ago has left a large scar but there has been strong growth of timber around the scar. There was no decay or borer activity in the exposed wood visible from the ground. There was a concave area of smooth bark visible above the scar, indicating that the failed branch had a large amount of included bark in the junction with the trunk. That included bark was probably the cause of the branch failure. 12 Inspection from the ground did not reveal any other branches that appeared to have a significant problem of included bark. 13 The visual inspection at the hearing did not reveal any reason why the tree roots, trunk or branches would fail in the near future. On this basis and the claimed findings of the Council officer, I conclude that the tree is unlikely to cause damage due to structural failure in the near future. 14 I note the McMasters' claim that their house suffered water damage from blocked gutters and that the blockage was caused by needles from the tree. 15 I also note that the McMasters pruned the tree clear of their house in 1999, 2003 and 2006, and installed gutter guard that they say did not work very well. 16 I observed that the tree does not now overhang their roof, and am of the opinion that the situation is similar to that addressed by the Court in Barker v Kyriakides [2007] NSWLEC 292 which recognised a responsibility on those who have the aesthetic and environmental benefits of having trees in their urban environment to undertake appropriate levels of maintenance from leaves, small branches, bark and the like falling on their property or into their gutters 17 On this basis I conclude that debris from the tree is unlikely to cause damage to the McMasters' property if they carry out regular maintenance that is their responsibility. Is the tree likely to cause injury due to trunk or branch failure ? 18 I have concluded above that structural failure of the tree is unlikely in the near future, and therefore injury due to such failure is unlikely in the near future. I note that the parties have agreed to some pruning of the tree and to have the arborist assess the tree when it is climbed. I noted willingness by the Adams during the hearing to responsibly manage the tree. On this basis I am satisfied that the tree is likely to be managed by the Adams so that it does not cause injury due to structural failure in the future. Is the pollen of the tree likely to cause injury ? 19 The McMasters have stated that the pollen from the trees causes sinus and lung irritation making them feel 'snuffly' and 'blocked up' for 1-2 months each year. They believe the Casuarina trees are the cause, the largest tree being outside their bedroom window. I am sympathetic to their discomfort but am not persuaded that the tree is necessarily the cause or only cause of the problem nor that the problem is serious enough to order any interference with the tree. Conclusion 20 I find it unlikely that the tree will cause either damage in the near future or injury of a seriousness that requires the Court to order any intervention with the tree. However the parties came to agreement during the hearing to carry out pruning and inspection of the tree, therefore I dismiss the matter noting the agreement of the parties as follows. Agreement of the parties 1) The second major branch from the base of the tree, being the branch growing towards 35 Brighton Avenue Toronto with a diameter of about 150 mm shall be pruned back to the trunk; 2) Up to three other branches growing towards 35 Brighton Avenue Toronto and having diameter less than 70 mm shall be pruned back to the trunk; 3) The pruning work shall be done by an arborist with AQF Level 3 qualifications and suitable insurances, selected by the Adams; 4) The pruning work shall be done in accordance with AS 4373 2007 Pruning of amenity trees ; 5) The arborist shall be asked to inspect the tree when climbing to do the pruning, and to give an opinion on the condition of the tree; 6) The pruning work shall be completed by 3 May 2008; 7) The cost of the work shall be shared equally by the Adams and the McMasters. The Adams shall pay the arborist's full account in the first place. The McMasters shall pay to the Adams half the amount shown on the receipt for payment of the completed works, within 28 days of being given a copy of that receipt. ___________________ 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.