Trnka v Deans [2011] NSWLEC 1056

Land and Environment Court New South Wales

Medium Neutral Citation: Trnka v Deans [2011] NSWLEC 1056 Hearing dates: 3 March 2011 Decision date: 03 March 2011 Before: Hewett AC Decision: The Court cannot therefore make an order and the application is dismissed. Catchwords: TREES [NEIGHBOURS]: injury to persons Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Black v Johnson (no 2) NSWLEC 513 Category: Principal judgment Parties: Mrs R Trnka (Applicant) Mr J Deans (Respondent) Representation: Ms R Trnka (Litigant in person) (Applicant) Mr J Deans (Litigant in person) (Respondent) File Number(s): 20825 of 2010

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1ACTING COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006, made by Mrs R Trnka of View Street, The Entrance, against Mr J Deans, the owner of an adjoining property in Tuggerah Parade. 2The properties share a common boundary extending along part of the western side of the applicants land and the rear of the respondents land. The properties are within the Wyong local government area. 3The applicant seeks an order to remove a Paperbark tree growing at the rear of the respondents land as she contends that the tree leans toward her children's bedroom on the upper level of her two story house, and should the tree fall it would most likely injure her children. 4She also contends that her own children and children for whom she is responsible from time to time may be injured when they are in the rear garden of her property. 5The applicant's house was built about three years ago and at that time branches from the respondents tree extended 4 to 5 m across her land. 6In 2009, with the agreement of the respondent, the applicant employed an arborist to remove all of the branches overhanging her land from the respondent's tree. 7The western wall of the applicants two storey house is about 1 m from the common boundary with the respondents land and the northern part of the tree crown is growing close to and slightly above that part of the roof. 8The respondent resides permanently at Beecroft and described his property in Tuggerah Parade as a weekender that he has owned for 30 years. He said the Paperbark tree was there at the time he purchased the property. 9The respondent said he does not oppose the removal of the tree because he was concerned about it falling. He said that his concerns were raised after a gum tree on the public reserve in front of his property failed in a recent storm. 10The respondent made application to Wyong Council on two occasions for permission to remove the Paperbark tree with the most recent application being in 2010. The application to remove the tree was refused on both occasions but on each occasion crown pruning was permitted. The respondent then allowed the applicant to have branches that were touching her roof removed. He said he had not pruned the tree since receiving the 2010 tree permit. 11The tree is a mature and remnant Broad Leafed Paperbark (Melaleuca quinquenervia ) some 12 m in height. It is situated in the rear garden of the respondent's property about 1.5 m from the boundary with the applicants land. I estimate the tree to be in excess of 60 years old. It is growing in a lawn area and is the only tree on the respondent's property. The canopy has a linear form, extending some 14 m on the north-south axis and some 6 m on the east-west axis. 12The trunk bifurcates at about 500 mm above grade and the two resultant stems form a relatively wide 'V' with one stem of about 600 mm base diameter aligned to the north, and one stem of about 500 mm base diameter aligned to the south. 13I assessed the tree from both properties, inspecting the ground surface, crown and the trunk union. The canopy contained very little dead wood and the foliage appeared typically dense and healthy. The bifurcated trunk union is partially included as often occurs in this species of Melaleuca. Notwithstanding the inclusion I saw nothing to indicate any potential weakness in the union. My observations at the base of the tree and the surrounding area provided no indications that would lead me to suspect defects or weakness in the supporting root system. The higher branch attachments appeared sound and the canopy contained less than 5% dead wood. A number of branch pruning wounds were evident on the eastern side of the tree facing the applicant's property and it is this pruning that has led to the trees now linear crown form. 14In view of the fact that the tree was well established in 2009 when the applicant's house was built, it is necessary in my view, to note a tree dispute principle published in Black v Johnson (no 2) NSWLEC 513 , and available on the Court's website, where the issue of 'the tree was there first' is considered. Whilst not entirely applicable in this situation as the principle is more relevant in terms of who should pay for, or carry out works, should they be required, there is an element of the principle that is relevant in this case. The last paragraph of the principle states: Equally, it will be relevant to consider whether the choice of location for the structure was unnecessary or avoidable or, on the other hand, if it would have been an unreasonable constraint on the development potential of the site had the existence of the tree limited that potential. 15The applicant pointed to a fallen branch on the respondent's lawn beneath the paperbark tree. The applicant and respondent agree that the branch fell quite recently although neither party could state exactly when, other than that it fell during a night of heavy rain. 16From the nature of the branch it had clearly fallen from the respondents Paperbark tree. The branch retained dry, brown leaves and was about 3 m long with a stem diameter at the base of about 150 mm. I saw no evidence of decay or defect at the point of detachment. I observed that the branch had fallen from the southern side of the tree into the respondents rear garden. No damage or injury occurred as a result of the failure and there is no evidence to suggest that branch failure has been a common occurrence in the past. 17At the on site hearing the applicant stated that she was not concerned about risk of damage to her property, rather, she said, she was very concerned about risk to her two children who sleep in the upper rear bedroom adjacent to the northern most section of the tree. She said that she has located her children to another part of the house. She said was also very concerned at the risk to her own and other people's children who regularly use the rear garden. 18Under s 10 (2) (b) the Court must not make an order unless it is satisfied that the tree concerned is likely to cause injury to any person. 19It is my considered opinion that the shedding of a single branch to the respondents largely unused rear garden area does not justify the removal of the Paperbark tree. 20As there is no part of the respondents tree that substantially overhangs the applicants land, and as there is no evidence to indicate instability in the tree or any significant likelihood of failure in the near future that might lead to injury to persons either inside the building or in the rear garden, I am unable to conclude to any degree of comfortable satisfaction that the tree is likely to cause injury to any person. 21The Court cannot therefore make an order and the application is dismissed. Philip Hewett Acting Commissioner of the Court