Irvine v Patkowski [2011] NSWLEC 1082

Land and Environment Court New South Wales

Medium Neutral Citation: Irvine v Patkowski [2011] NSWLEC 1082 Hearing dates: 21 March 2011 Decision date: 21 March 2011 Jurisdiction: Class 2 Before: Moore SC Decision: Amended application granted in part. Orders for replacement of damaged section of fence; removal of camphor laurel stump and roots; and dead wood removal on an ongoing basis. Leave to approach for further orders if respondent fails to carry out required work within 60 days of the service of the orders on him. Catchwords: Trees (neighbours) Category: Principal judgment Parties: Mr R Irvine (Applicant) Mr S Patkowski (Respondent) File Number(s): 20994 of 2010

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1In the rear of the property to the south of the applicant's property, is located a eucalypt that is some 35 m or so tall. It has four co-dominant leaders, the first of them coming off at approximately 1.8 m above the ground, and the remaining three splitting at about 2.5 m above the ground. The trunks are, after their separation, generally straight and well formed. Looking at the branch attachments of all the major branches, there is no sign of structural weakness in the tree. 2The applicant in the proceedings has, however, informed me (and I have a photograph in the evidence) of a substantial branch falling from the tree, and his evidence is it that that branch was dead. It is clear from both his observation of what has occurred to the tree, and my observation of it, that it has been pruned in the recent past. It is obvious that a significant amount of dead wood, some of it up to 100 mm in diameter at the point of attachment to the trunk, has been removed from the tree. There is, at the present time, no readily discernible dead wood anywhere in the canopy, or attached to any of the four leaders to the tree. 3I am satisfied as a consequence that, although there may be minor dropping of small branches up to 1 or 2 cm in diameter, there is no present likelihood of significant branches falling from the tree. However, it is obvious from the evidence, that when dead branches occur, they have fallen onto the applicant's property, and, as earlier noted, it is also obvious from an examination of the tree, that there has been a significant amount of dead wood recently removed from it. 4I am satisfied that the large branch that had fallen into the applicant's rear yard, did constitute a likely cause of injury to persons in his backyard, and as a consequence it is appropriate to order, on an ongoing basis, the removal of deadwood down to 25 mm in size at the point of attachment to the tree, with that dead wooding to be undertaken on a 12-monthly basis. 5I have also granted leave to the applicant to amend his application concerning a stump of a camphor laurel tree located on the respondent's property. The stump is close to the base of the eucalypt and has been cut at a point approximately 150 to 200 mm above ground level. There is epicormic growth from the stump, and there is suckering from the roots of the camphor laurel where those roots are extending under the fence on the neighbouring property. Some of that suckering, although small in size, shows that the roots close to the rear corner of the respondent's property are also from the camphor laurel. The camphor laurel has displaced the fence, and has caused damage to the last section of the fence. 6Equally, the final three planks of the last section of the fence have been displaced by pressure from the trunk of the eucalypt tree but that can be rectified, as part of the replacement of that section of the fence, by the shortening of the last three planks of the replacement fence. It is, however, clear that the fence has been damaged in that section, by a combination of the camphor laurel tree and the eucalypt. 7Shortening of the three planks in the fence will remove the likelihood of future damage by the eucalypt, but removal of the camphor laurel is essential, not only to enable rectification of the present damage, but also in order to prevent ongoing damage. 8I therefore order that: (1)The respondent is to remove the camphor laurel tree stump and its roots, including the roots on the applicant's property, to the point where all of the roots on the applicant's property are removed, and the remainder of the roots and stump are ground to a point 50 mm below ground level at the base of the trunk of that stump; (2)The respondent is to replace and meet the cost of replacement of the final panel of the fence, with the fence reinstated in a fashion that accommodates the trunk of the eucalypt tree, rather than requiring removal of it; (3)The fence reinstatement is to be undertaken, as are the works with respect to the camphor laurel, within 60 days of the date of these orders being served on the respondent; (4)If the work in (1) and (2) is not carried out within 60 days of the date of these orders being served on the respondent, the applicant may apply to the Court for further orders seeking consent of the Court to replace the fence and recover the cost from the respondent, and to enter onto the respondent's property, for the purposes of removal of the camphor laurel and of its roots; and (5)The respondent is to prune all dead wood in the eucalypt, down to 25 mm in size at the point of attachment to the tree, with the first dead wooding to be undertaken not later than 12 months from the date of these orders and repeated on a not longer than 12-monthly basis after the first dead wood removal. Tim Moore Senior Commissioner 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: 12 April 2011