Gant v Abreu and anor [2010] NSWLEC 1214

Land and Environment Court of New South Wales

CITATION : Gant v Abreu and anor [2010] NSWLEC 1214

APPLICANTS I and S Gant PARTIES : RESPONDENTS E. Abreu R. Reynolds

FILE NUMBER(S) : 20415 of 2010

CORAM: Fakes C

TREES (NEIGHBOURS) :- Damage to property KEY ISSUES: Injury to persons Pruning of dead wood ordered

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 Threatened Species Conservation Act 1995

CASES CITED: Robson v Leischke [2008] NSWLEC 152 Yang v Scerri [2007] NSWLEC 592

DATES OF HEARING: 6/8/2010

DATE OF JUDGMENT: 6 August 2010

EX TEMPORE JUDGMENT DATE : 6 August 2010

APPLICANTS Mr M Gant - solicitor Curtis Gant Irving Solicitors LEGAL REPRESENTATIVES:

RESPONDENTS Mr E Abreu - litigant in person Ms R Reynolds - litigant in person

JUDGMENT: - THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Fakes C

6 August 2010

20415 of 2010 Gant v Abreu and anor

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 s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Beecroft against the owners of trees growing on an adjoining property. 2 The applicants are seeking the removal of two trees and the pruning of another as they contend that the trees pose a risk of injury to people and could cause damage to their property. 3 The making of the application appears to have been stimulated by the failure of another tree, a Eucalyptus nicholii in February 2010. The failure of this tree resulted in damage to the applicants' property. That tree has been removed and is not subject to the application. 4 The three trees subject to this application are a Eucalyptus nicholii (Tree 1), a E. saligna (Tree 2) and another E. saligna (Tree 3). 5 Since the making of the application, the respondents applied for, and received, permission form Hornsby Council (the Council) to remove Trees 1 and 3. This has occurred and only Tree 2 remains to be considered by the Court. 6 Under s 10(2) of the Act, the Court must not make an order unless it is satisfied that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant's property or is likely to cause injury to any person. 7 Tree 2 is identified in the application and in an arborist's report as a Eucalyptus saligna (Sydney Blue Gum) although it has bark characteristics more typical of E. pilularis (Blackbutt). As I was unable to collect any fruit from the tree in order to confirm its identify, it will be referred to simply as the tree. 8 The tree is a healthy mature specimen growing on the north-eastern side of the respondents' property. The size and probable species indicates that it is likely to be a remnant or progeny of the original plant community. The rear of both properties adjoin a recreation reserve that contains other mature indigenous trees. 9 The applicants contend that branches overhanging their property could cause damage or injury. 10 On the basis of the failure of the Eucalyptus nicholii referred to in para 3 of this judgement, the applicants engaged Mr Gatenby of Apex Tree and Garden Experts to inspect and report on their neighbours' trees. It is upon this report that the applicants rely. 11 Mr Gatenby inspected the trees on 24 February 2010. In oral evidence given by the applicants, the inspection was confined to what could be seen from the applicants' property. 12 There is no indication in the report as to whether or not binoculars were used. Mr Gatenby refers to "Visual Tree Assessment Techniques" but does not elaborate on the method. 13 In his report, Mr Gatenby states that This is a healthy specimen which has been pruned (incorrectly) in the past to reduce branches overhanging No. 29. Some of the longer pendulous branches are now overhanging the boundary by up to ~7 metres. These would generally be considered to be minor branches, however, reduction pruning of these branches to bring them back off the boundary is recommended while they are smaller and have suitable growth points to prune them back. What is of most concern with this tree is a large wound on the northern side of the main trunk at ~ 12 metres in height. This is a site of an incorrectly removed branch stub and there appears to be considerable decay around this area. It is probable that at this point on the tree has [sic] a large area of decay. Should decay occur in the trunk, failure would be more likely at this point than other parts of the tree. I recommend that this area [be] structurally assessed so that it is known whether the tree is able to be reasonably retained or not. There is a branch which has been affected by Bracket fungus at ~15 metres in height. This branch curves out to the south and has a wound ~ 2 metres long. It is likely that this branch will need to be removed in its entirety to prevent further spread of the decay into the tree. It would be in the interest of the neighbour to have this branch correctly removed as it is partially over his property and near to his house.