Land and Environment Court New South Wales Medium Neutral Citation: Schilling v Kalanoski [2013] NSWLEC 1178 Hearing dates: 25 September 2013 Decision date: 25 September 2013 Jurisdiction: Class 2 Before: Fakes C Decision: Application upheld in part; removal refused; dead wood to be removed from tree; fence to be repaired Catchwords: TREES [NEIGHBOURS] Damage to fence; potential damage to sewer; risk of injury Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: E.G.E. Schilling (Applicant) N. Kalanoski (Respondent) Representation: Applicant: E.G.E. Schilling (Litigant in person) Respondent: N. Kalanoski (Litigant in person) File Number(s): 20494 of 2013 Judgment 1COMMISSIONER: This is an application made under s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by the owner of a property in Figtree concerning trees growing at the rear of an adjoining property. 2The applicant is seeking orders for the removal of two trees, a Eucalypt and a Hill's Fig, and the repair of the timber dividing fence between the parties' properties. 3The application is made on the basis that: * branches falling from the eucalypt could cause damage or injury, or indeed, the same may happen should the whole tree fail; * the trunk of the eucalypt has displaced and damaged the fence; * the roots of the fig may cause damage to the sewer which has been blocked in the past; and * the roots of the fig protrude above the ground and constitute a tripping hazard. 4The respondent does not wish to remove the trees and considers that the cost of repairing the fence, if it is required, should be shared as it is a dividing fence. 5The respondent raised the issue of the location of the tree in relation to the boundary. Section 4(3) of the Act states: (3) For the purposes of this Act, a tree is situated on land if the tree is situated wholly or principally on the land. In this context, 'the land' is adjoining land, or the respondent's land. 6Although there was no survey of the boundary, I am satisfied on the basis of the general location of the rear fence line between other adjoining properties, that the tree is situated principally on the respondent's land; a small portion is likely to be on the applicant's land. 7In applications under Part 2, the key jurisdictional test is found in s 10(2) of the Act. This states that 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. This must be applied to each tree. 8As the applicant is concerned about future damage, the guidance decision in Yang v Scerri [2007] NSWLEC 592 has determined that the 'near future' is a period of 12 months from the date of the hearing; a timeframe I consider appropriate in this matter. In regards to injury, the Court considers the risk posed by a tree in the foreseeable future based on the characteristics of the tree/s, the history of any failures or other problems, and the circumstances of the site apparent at the time of the hearing. 9As neither party engaged an arborist to give an opinion, the observations on the condition of the trees are based on the expertise I bring to the Court. The eucalypt 10The Eucalypt is an apparently healthy, mature specimen located on the boundary of the two properties. I saw no obvious structural defects and the canopy contains a normal amount of dead wood. I saw no signs of disturbance in the root plate, or any other indications of likely whole tree failure. 11The tree's size and location indicate that it is most likely a remnant of the original vegetation on the site. The applicant has lived on her property since 1960 and the tree has always been there. 12A photograph in the application shows a large branch from the tree across the fence. The cause of the failure is unknown however the point at which it failed indicates there have been an unusual branch attachment from which it tore/hinged. The branch was a low branch and no damage or injury arose from the failure. I observed several dead branches in the applicant's back garden which had come from the tree. It was reported that smaller green branches also come from the tree in windy conditions. 13The growth of the trunk of the tree has displaced two panels of the timber paling fence. One of the bottom rails is cracked. The respondent has roped the fence to the trees in order to prevent the fence from falling. The fence was built about 14 years ago about two years after the respondent bought the property. The fence is in reasonably good order however it is detached from the adjoining fences at either end. 14I am satisfied that the eucalypt has caused damage to the fence. I am also satisfied that dead wood falling from the tree could cause damage or injury. Therefore, s 10(2) is satisfied for the eucalypt and the court's power to determine what, if any, orders should be made is engaged. 15This requires consideration of a number of matters under s 12 of the Act. Most relevantly, the tree is a likely remnant of the original vegetation. It therefore contributes to the local ecosystem and to biodiversity. It can be seen from the adjoining streets and therefore contributes to public amenity. It and others like it contribute to the overall landscape character of the area. Apart from the one large limb failure, the tree appears to have caused few problems apart from creating a reported nuisance through the normal shedding of small branchlets and leaves. 16On this basis, there is no justification for the removal of the tree however orders will be made for the periodic removal of dead wood from the part of the canopy that overhangs the applicant's property. This may require access to the applicant's property. 17Orders will also be made for the repair of the fence at the respondent's expense. Although the fence is a shared fence, it is the respondent's tree that has caused the damage and therefore, the respondent should be responsible for rectifying that damage. The fig 18The fig is a semi-mature specimen planted by the former owner of the respondent's property (therefore more than 16 years ago). It is located close to the eucalypt but further back from the fence. 19The applicant stated that before the respondent bought their property, roots from the fig [or possibly the eucalypt] blocked the sewer. About 8 years ago, the applicant had the sewer pipe replaced in PVC. However, as the fig roots are prominent and quite close to the sewer outlet, she is concerned the pipes may be blocked in the future. 20Since the first blockage there have been no further blockages and as the pipe is now PVC, there is no basis on which to order any intervention with the fig. 21In regards to the exposed roots, there are several large and obvious roots that could be easily avoided by anyone walking in that part of the backyard. I observed the whole yard to be relatively uneven with other potential trip hazards. Therefore anyone walking in the garden would have to pay attention to where they are going. Therefore, I am not satisfied that the risk of tripping on the roots is significant enough to satisfy s 10(2). 22However, as the exposed roots of the fig run beneath the fence, the repair of the fence should take account of these roots and the palings shortened to allow for future growth. Orders 23Therefore on the basis of the foregoing, the Orders of the Court are: (1)The application is upheld in part. (2)The application to remove the trees is dismissed. (3)Within 60 days of the date of these orders, the respondent is to engage and pay for an AQF level 3 arborist with appropriate insurance cover to remove all dead wood 40mm or more in diameter at its base from all parts of the eucalypt that overhang the applicant's property. (4)The work is to be done in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry and AS4373: 2007 - Pruning of Amenity Trees. (5)Should it be required, the applicant is to provide all necessary access for the purpose of quoting and for the safe and efficient carrying out of the work on reasonable notice. (6)Every two years, within two weeks either side of the anniversary of the initial removal of dead wood, the respondent is to engage and pay for an AQF level 3 arborist with appropriate insurance cover to remove all dead wood \ 40mm or more in diameter at its base from all parts of the eucalypt that overhang the applicant's property. (7)Should it be required, the applicant is to provide all necessary access for the purpose of quoting and for the safe and efficient carrying out of the work on reasonable notice. (8)Within 60 days of the date of these orders, the respondent is to rectify the two displaced panels of fence at the southern end of the dividing fence. New fence posts are to be installed to enable the incorporation of the tree into the boundary fence. The existing posts may have to be re-set to vertical and any broken sections replaced. The fence is to be installed to a professional standard and is to accommodate the future growth of the trunk of the eucalypt and the roots of the fig. No part of either tree is to be damaged (cut/nailed/wounded) during the rectification of the fence. (9)The applicant is to provide all necessary access for the purpose of quoting and for the safe and efficient carrying out of the fencing work on reasonable notice. ______________________ Judy 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: 25 September 2013