Reading v Lawson [2015] NSWLEC 1001

Land and Environment Court New South Wales

Medium Neutral Citation: Reading v Lawson [2015] NSWLEC 1001 Hearing dates: 13 January 2015 Decision date: 13 January 2015 Jurisdiction: Class 2 Before: Fakes C Decision: Application upheld in part see [16] Catchwords: TREES [NEIGHBOURS] Damage to property; potential injury Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Category: Principal judgment Parties: Ms K Reading (Applicant) Mr D Lawson (Respondent) Representation: Counsel: Applicant: Mr M Spicer (Solicitor) Respondent: no attendance

Solicitors: Applicant: Merrick Spicer & Associates File Number(s): 20860 of 2014

Judgment 1. COMMISSIONER: The applicant owns a property in Cundletown. She has applied under s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the removal of three trees growing on an adjoining property. 2. The orders are sought on the basis that the trees have caused or could cause damage to the applicant's property or could injure someone. 3. The applicant also seeks costs. Commissioners of the Court do not have the jurisdiction to award costs. Should the applicant wish to, she could file a Notice of Motion, which would then be heard by a Registrar or Judge of the Land and Environment Court. 4. The respondent did not attend the on-site hearing however the matter was discussed in a telephone mention with him and the applicant's solicitor the day before the hearing. I am satisfied that the respondent had ample notice of the proceedings, the directions having been made on 17 November 2014. During the mention, the respondent expressed no desire to attend the hearing, as it was difficult to do so. He was informed that the matter would proceed in his absence. He advised that the trees could be viewed from the applicant's property. 5. In applications under Part 2 of the Act there are a number of jurisdictional tests that must be satisfied in order to engage the Court's powers, under s 9 of the Act, to make orders. 6. I am satisfied that the trees are located on the respondent's property (s 4, s7). I am also satisfied that the applicant has made a reasonable effort to reach agreement with the respondent (s 10(1)). 7. The key jurisdictional test is satisfaction of s 10(2). This states that the Court must not make an order under this Part 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. 8. The three trees are: Tree 1 – Jacaranda, Tree 2 – Jacaranda, Tree 3 – Quercus sp. – Oak. As neither party engaged an arborist to prepare a report or to attend the hearing, the observations and comments below are based on the arboricultural expertise I bring to the Court. 9. Since the filing of the application, Tree 1 has been severely lopped to about 3m above ground. The tree is close to the dividing fence. Jacarandas typically respond to heavy pruning by producing epicormic shoots. These shoots are vigorous and weakly attached when compared to 'naturally' produced branches. In my opinion, this predictable response of the tree will increase the risk of failure of branches onto the applicant's property. I am satisfied that this tree, could in the near future, cause damage to the applicant's property or could cause injury to someone. Therefore s 10(2) is satisfied for Tree 1. 10. The state of the tree is such that it detracts from the amenity of the parties' properties and serves no particular function. While managing lopped growth to minimise the risk of failure can be done, it requires arboricultural expertise and regular attention. Given the proximity of the tree to the applicant's property, and the extent of damage to the tree caused by the lopping, I consider the most practical solution in the circumstances is to order the removal of the tree to ground level. 11. Tree 2 is another mature Jacaranda. The majority of the canopy displays the natural form of the species. There are some epicormic shoots arising from previously cut branches. The tree contains a significant amount of dead wood, including several large dead branches that are caught in the canopy ('hangers'). 12. Photographs in the application claim form show the failure of a large dead limb onto the applicant's property close to a small shed. Whether it was the failure of this branch, or another branch from Tree 2, damage was caused to the roof of the shed and to a wire mesh fence. I am satisfied to the extent required by s 10(2) that this tree has caused damage to the applicant's property and could continue to do so. Dead wood falling from the tree could also cause injury to any person. 13. This tree provides some shade and amenity to the parties' properties. The removal of dead wood and selected epicormic shoots will have little impact on the health of the tree as long as the pruning is carried out in accordance with the Australian Standard for the Pruning of Amenity Trees. It is sufficient as this stage to order the pruning of the tree. The tree is not to be lopped. As the production of dead wood is a natural function of trees, orders will be made for the removal of dead wood every two years. 14. Tree 3 is an Oak. This tree has been inexpertly lopped back to a large stump. The tree has produced many vertical epicormic shoots, most of which are not yet of a size to cause any damage or injury should they fail; although one large dead shoot has fallen across the respondent's yard. The main problem with this tree is that is abuts the dividing fence and has caused some damage to it. The continued growth of the tree will cause ongoing damage. I am satisfied that s 10(2) is met for this tree. Given the poor form and low aesthetic value of the tree, I consider the most appropriate solution is the removal of the tree to ground level. 15. The work that has been undertaken on Trees 1 and 3 is not of a professional standard. Tree work is inherently dangerous and should be undertaken by a person with appropriate training and experience. To that end, the orders include a requirement for the work to be carried out by an AQF level 3 arborist (trade level). The stumps of trees 1 and 3 are to be poisoned to prevent suckering. As is generally the case in these matters, the cost of the work is to be the responsibility of the respondent. 16. Therefore as a consequence of the forgoing, the Orders of the Court are: 1. The application is upheld in part. 2. Within 30 days of the date of these orders, the respondent is to engage and pay for an AQF level 3 arborist, with current and appropriate insurance cover, to undertake the following works: 1. Remove the remaining stump of Tree 1 (Jacaranda) to ground level. The stump is to be poisoned. 2. Remove Tree 3 (Oak) to ground level. The stump is to be poisoned. 3. Remove all dead wood down to 40mm at its base, hanging branches, and vines from Tree 2 (Jacaranda). 4. Remove the epicormic shoots and other branches indicated on the photograph attached to this judgment from Tree 2. 1. All work in Order 2 is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry. 2. The work in Orders 2(c) and 2(d) is to be carried out in accordance with AS 4373:2007 Pruning of Amenity Trees. In particular, all final cuts are to be to branch collars, climbing spikes shall not be used, and the tree shall not be lopped. 3. The applicant is to provide all necessary access for the purpose of quoting and for the safe and efficient carrying out of the works in Order 2, on reasonable notice. 4. The pruning work in Order 2(c) is to be carried out every two years commencing in January 2017. At this time, any unstable epicormic shoots are to be removed. This order remains for the life of the tree. 5. Orders (4) and (5) apply to Order (6). ______________________ Judy Fakes Commissioner of the Court Additional epicormic/damaged branches to be removed from Tree 2.