Morris v Kedziora [2011] NSWLEC 1156

Land and Environment Court New South Wales

Medium Neutral Citation: Morris v Kedziora [2011] NSWLEC 1156 Hearing dates: 21 June 2011 Decision date: 21 June 2011 Jurisdiction: Class 2 Before: Fakes C Decision: Application upheld in part; tree removal refused; annual removal of deadwood ordered. Catchwords: TREES [NEIGHBOURS]; future damage to property and injury to persons; Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Yang v Scerri [2007] NSWLEC 592 Hinde v Anderson & anor [2009] NSWLEC 1148 Category: Principal judgment Parties: G & M Morris (Applicants) M & E Kedziora (Respondents) Representation: Applicant: G & M Morris (Litigants in person) Respondent: Did not attend hearing File Number(s): 20099 of 2011

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1COMMISSIONER: This is an application pursuant to s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owners of a property in Seven Hills against the owners of a tree growing at the rear of an adjoining property. 2The applicants are seeking either the removal of the tree or alternatively, its lopping to half its current height, the removal of all overhanging branches back to the fence line and the subsequent maintenance of the tree. 3These orders are sought on the basis that branches falling from the tree could cause damage to the applicants' property or cause injury to any person, in particular their grandchildren who frequently use the pool and surrounding area for play. The tree and the site 4The tree was inspected from both properties. The respondents did not attend the on-site hearing however, I am satisfied that they were aware of the date, time and location of the hearing as one of the respondents was present at the directions hearing. Access to the respondents' property was provided by one of the current tenants. 5The tree is a healthy, mature Eucalyptus saligna (Sydney Blue Gum) with no obvious structural defects. It is located in the rear corner of the respondents' property and part of the canopy overhangs what is described as a cabana on the applicants' property by about 3-4m. Less than 10% of the canopy overhangs the applicants' property. A portion of the canopy overhangs a rough grass embankment of a playing field of an adjoining school. 6The tree shows some signs of branch tear of second and third order branches. One reasonably large branch was seen lying in the school grounds. There is less than 2% dead wood in the tree; this is consistent with a normal healthy individual of this species and age. There were no signs to suggest any instability of the root-plate or any obvious predisposition to whole tree failure. 7The applicants have lived on their property since 1981. The tree was present when they arrived although obviously smaller. In the 30 years since they have owned the property they state that only 2 live branches of any substantial size have fallen onto their property. Approximately 4 years ago a branch fell onto and broke a panel of the polycarbonate roof of the cabana. The applicants estimated the roof to have been about 10 years old at the time. Approximately one year ago, a live branch with a diameter of about 100mm fell onto their clothesline but no damage occurred. I note that whilst there is no photographic evidence of these failures, I have no reason to doubt the veracity of the oral evidence. 8I observed fallen dead wood in their yard up to 2m in length and ranging between 10 and 25mm in diameter. According to the applicants this is a relatively frequent event. I also noted several large dead branches that had fallen into the respondents' property. The tenant advised me that she was concerned for the safety of her children and forbade them to play beneath the tree. 9I note that several low branches of the tree have been inexpertly lopped. These appear to have been branches growing towards the applicants' property. 10There are no other Eucalypts in the immediate vicinity of the applicants' property. The assessment framework 11Under 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. If any of the tests under s 10(2) are satisfied, the Court must then consider the relevant clauses under s 12 of the Act. 12If orders are warranted, s 9 of the Act empowers the Court to make any orders it thinks fit to remedy, restrain or prevent damage to property, or to prevent injury to any person, as a consequence of the tree subject to the application. Findings 13In this matter the applicants are seeking orders to prevent future damage or injury. In a guidance decision published in Yang v Scerri [2007] NSWLEC 592 the rule of thumb regarding the interpretation of 'the near future' is deemed to be a period of 12 months from the time of the hearing. This is a period I consider appropriate in this matter. 14I note that in the past 30 years only 2 live branches of a size capable of causing damage or injury have fallen onto the applicants' property and only 1 caused damage to a relatively old rood panel. I saw no defects in any of the live overhanging branches that would lead me to conclude that any of these branches is likely to fail in the near future and cause damage or injury. Given the limited overhang of unprotected areas of the applicants' backyard, I consider the risk of injury from live branches to be very low. 15Whilst the percentage of dead wood within the tree is small, it is of a size that could cause injury when it eventually falls. I consider the risk of injury to anyone on the applicants' property to be relatively low however as s 10(2)(b) considers the likelihood of injury 'to any person', the respondents' tenants and any school children who may rest in the shade of the tree must also be considered. 16However, as there is uncontested evidence that a live branch did cause damage and the failure of dead wood is predictable and its failure could cause damage or injury, several of the tests under s 10(2) are satisfied and therefore the jurisdiction is enlivened and orders can be made. 17In considering what orders should be made, the Court must consider the relevant clauses in s 12 of the Act. These are: (a)The tree is wholly located on the respondents' property. (b2) The removal of dead wood will have no detrimental impact on the health or structure of the tree. The lopping sought by the applicants (that is, the 'flat-topping' of the tree) would have a detrimental impact on the structural integrity of the tree. AS4373:2007 Pruning of Amenity Trees lists lopping as an unacceptable practice and as such, the Court could not endorse it. (b3/e/f) The tree contributes to the amenity and scenic value of the respondents' property. Its size and location make it quite prominent in the landscape and as such it contributes to public amenity. (d) The tree is likely to contribute to the local ecosystem and to biodiversity. (h)(i) The age and nature of the roofing material on the cabana make it susceptible to cracking if impacted by a branch. (i)(ii) It is clear that the respondents have taken some steps to remove some overhanging branches. 18In conclusion, whilst I accept that the applicants' fears are honestly held, for the reasons given in [14] I consider the risk of damage or injury posed by live overhanging branches from the tree to be low; encroachment into the air space above a property is not in itself damage. Whilst I am satisfied that falling dead wood could cause injury to any person, the orders sought by the applicants are disproportionate to the risk the tree poses. On the evidence before the Court removal of the tree cannot be justified and lopping would lead to unacceptable structural defects. 19However, as determined in Hinde v Anderson & anor [2009] NSWLEC 1148 should the circumstances change a fresh application can be made 20Therefore, as a consequence of the forgoing, the Orders of the Court are: (1)The application is upheld in part. The application to remove the tree is dismissed. (2)The respondents are to engage and pay for an AQF level 3 arborist with appropriate insurances to remove all dead wood down to 15mm in diameter from the tree. (3)The work is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry and AS4373:2007: Pruning of Amenity Trees. (4)The work is to be completed within 30 days of the date of this judgment. (5)The applicants and the respondents' tenants are to be given at least 3 working day's notice of the commencement of the works. (6)The applicants and the respondents' tenants are to provide all reasonable access for the works to be undertaken in a safe and efficient manner. (7)Orders (2), (3), (5) and (6) are to be carried out every 12 months within 2 weeks either side of the anniversary of the first pruning. ____________________ 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: 21 June 2011