Land and Environment Court New South Wales Medium Neutral Citation: Sherrard v Mulholland & anor [2011] NSWLEC 1022 Hearing dates: 11 February 2011 Decision date: 11 February 2011 Jurisdiction: Class 2 Before: Fakes C Decision: 1. Application to remove tree upheld. Catchwords: TREES [NEIGHBOURS]; damage to property; injury to persons; tree in decline; removal ordered Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Category: Principal judgment Parties: Mr G Sherrard (Applicant) Mr T Mulholland (Respondent) Ms K Wade (Respondent) Representation: Counsel: Ms S Duggan SC (Applicant) Mr G Sherrard [litigant in person] (Applicant) Mr T Mulholland [litigant in person] (Respondent) Ms K Wade [litigant in person] (Respondent) File Number(s): 20906 of 2010 Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1This is an application pursuant to Part 2 s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in South Camden against the owners of a tree growing on an adjoining property. 2The applicant is seeking the removal of the tree as he contends that it has caused damage to his property, in particular, the roof of a shed, the metal dividing fence and a shade area, and that it could continue to do so. He is also concerned that the tree could cause injury to someone as it overhangs structures in his back garden that are regularly used. 3Apart from removal, the applicant is seeking orders for the repair of the metal fence and reimbursement of $285 for the cost of roofing material used to repair the shed. 4The tree is a semi-mature Eucalypt, identified in the application as Eucalypts viminalis . It is one of 4 Eucalypts of a range of species planted along the rear boundary of the respondents' property. The rear of the applicant's property adjoins this boundary. 5I observed the tree to be in poor condition with terminal dieback on the central leader. There are some healthy shoots and there is some recovery from small epicormic shoots along that stem however, overall the canopy is thin and there is a greater than normal percentage of dead wood in the tree. The respondents commented that the tree was looking better than it did some months ago and may be recovering, however, in my experience the symptoms indicate a tree in decline. 6The tree leans towards the applicant's property. The base of the tree is on a lean and while there appears to be some recovery of the upper canopy to a more vertical position, there is abnormal detachment of bark at the base of the tree on the tension side that may indicate excessive loading. 7The tree in question is situated between, and somewhat suppressed by, two larger, healthier and more vigorous trees. As it grows towards the light its continued growth will inevitably be towards the applicant's property. 8With respect to the alleged damage to the fence, the tree in question is not touching the fence and I saw no damage to the fence that could be attributed to the tree in question. In the calm conditions during the on-site hearing, the tree was close to but clear of the shed roof. 9The area overhung by the tree includes the shed, a garden shade structure and a pergola-covered spa. Evidence of fallen dead wood was seen on the covering of the shade structure. 10Under 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. 11The decline of this tree means that dead wood will continue to fall and this is of a size that could cause future damage to property or injury to any person. I can see no damage to the fence that has been caused by this tree but it is possible that falling dead wood did contribute to the damage to the roof of the shed. Therefore as several of the tests in s 10(2) are satisfied, the Court has the jurisdiction to make an order. 12With respect to the shed, the applicant stated that the shed was old and the roof had partially collapsed under the weight of accumulated leaves. As a result of this statement, the applicant's attention was drawn to the Tree Dispute Principle in Barker v Kyriakides [2007] NSWLEC 292. The applicant reconsidered the claim for roofing materials and withdrew that element of the application. 13As there is no damage to the fence the Court has no jurisdiction to order any repair of the fence so that element of the application is dismissed. 14The respondents do not oppose the removal of the tree but consider that the applicant should pay half the cost of doing so. 15Section 9 of the Act gives the Court a degree of discretion in making orders. Due to the multiple environmental, health, aesthetic and other benefits trees provide, the Court considers removal of a tree to be the last option. One option the Court has ordered on many occasions is the removal of dead wood as this is an element of a tree that can cause damage or injury when it eventually falls. 16In this instance, I do not consider this to be a practical or economically viable solution given the obvious decline of the tree. Removal of dead wood does not address the lean of the tree which of some concern although I don't consider whole tree failure to be imminent. 17While the tree does make some aesthetic and ecological contribution to the site, the risk it poses outweighs these benefits. These benefits are better provided by the other eucalypts located on the respondents' property. 18I therefore agree with the parties that the tree should be removed. With respect to who should pay, there is uncontested evidence that the applicant did raise the problems with the tree with the respondents on several occasions. A very brief arborist's report in the respondents' evidence raises the possibility of poisoning in explaining the condition of the tree. The author of that report was not present at the hearing and nothing was shown to me to substantiate this statement. 19Therefore I see no reason to deviate from the usual orders the Court makes in these matters that the owners of the tree should be responsible for the costs of its removal. 20As a result of the forgoing, the Orders of the Court are: (1)The application to remove the tree is upheld. (2)The application for repair of the fence is dismissed. (3)The respondents are to engage and pay for an AQF level 3 arborist with the appropriate insurance, to remove the tree to ground level and to treat the stump to prevent suckering. (4)The work is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry. (5)The applicant is to provide all reasonable access for the work to be carried out in a safe and efficient manner. (6)The respondents are to give the applicant at least 2 working days notice of the commencement of the work. (7)The work is to be completed within 60 days of the date of these orders. _______________________ J Fakes 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. Decision last updated: 14 February 2011