Gossayn & anor v Barakat [2015] NSWLEC 1006

Land and Environment Court New South Wales

Medium Neutral Citation: Gossayn & anor v Barakat [2015] NSWLEC 1006 Hearing dates: 19 January 2015 Decision date: 19 January 2015 Jurisdiction: Class 2 Before: Durland AC Decision: The application is upheld in part Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage, injury, deadwood, tree pruning ordered. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW) (2009) Cases Cited: Yang v Scerri [2007] NSWLEC 592 Smith and Hannaford v Zhang & Zhou [2011] NSWLEC 29 Category: Principal judgment Parties: Mr and Mrs Gossayn (Applicants) Mr Itidal Barakat (Respondent) Representation: Counsel: Mr and Mrs Gossayn (Applicants in person) Mr Mouhamad Mourtada (Respondent)

Solicitors: H.K Husseini & Co. Solicitors (Respondent) File Number(s): 20737 of 2014

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Judgment 1. This is an application pursuant to section 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act). The application has been made by Mr and Mrs Gossayn (the applicants), the owners of a property in the suburb of Ruse. 2. The applicants are seeking orders in relation to two Eucalyptus eugenioides (Stringybarks) trees located on an adjacent property to the rear. The property where the trees are growing is owned by Ms Barakat (the respondent). 3. Orders are sought for the removal of Tree 1 and for the pruning of Tree 2. 4. Tree 1 and Tree 2 are located at the rear of the respondent's property near the common boundary with the applicant's property. Tree 1 is located approximately 1 metre from the boundary fence and Tree 2 is located approximately 3 metres from the boundary fence. 5. Mr and Mrs Gossayn are concerned that Tree 1 has the potential to damage their property should large limbs fall from the overhanging canopy. The applicants are also concerned that falling limbs, in particular falling deadwood from Trees 1 and 2, may cause injury to a person. 6. Mr and Mrs Gossayn state that they are particularly concerned about the overhanging limbs as they have a 17 year old child with autism and intellectual delay who uses the outdoor area under the canopy of the trees on a regular basis, in particular lying face up on the trampoline. The applicants contend that in late 2013 a branch from the tree fell on their daughters face whilst she was lying on the trampoline and that the event was the catalyst for them pursuing the pruning or removal of the trees. 7. Under section 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 a person. Tree 1 1. Tree 1 is mature tree that has co-dominant trunks from the base. A section of the canopy from the trunk located closest to the applicant's property overhangs the common boundary. The applicants are concerned that should a large limb fall from the canopy it will cause damage to the outdoor covered eating area, the pool and or the trampoline. 2. There was nothing evidenced or noted on site that indicates that large diameter (live) limb failure is likely to occur in the near future. 3. In a guidance decision published in Yang v Scerri [2007] NSWLEC 592, as a 'rule of thumb', the appropriate timeframe for the 'near future' is a period of 12 months. In regards to injury, the Court considers the risk posed by the tree and circumstances of the site at the time of the hearing. 4. The applicants contend that they obtained several quotes for pruning and or removal of the trunk of Tree 1 that supports the canopy that overhangs their property and have included two of these quotations in their application. The documents are quotations for works to the tree only and are not detailed arboricultural assessments of the health or structural integrity of the tree. The documents are of limited (if any) assistance to the Court. 5. There is deadwood throughout the section of the canopy that overhangs the applicant's property and with the expertise that I bring to the Court I consider that it is predictable that deadwood will fall from the canopy and it is a possibility that the largest of the dead limbs could cause minor damage to property if they were to fall from the tree. 6. The Court requires that there is more than a theoretical possibility of future damage. In Smith and Hannaford v Zhang & Zhou [2011] NSWLEC 29, at [62] Craig J stated that "something more than a theoretical possibility is required in order to engage the power under the Trees Act". 7. I am not satisfied that that the requirements under 10 (2) of the Act have been met in relation to future damage that may be caused by Tree 1 and therefore no orders can be made in this regard. 8. The applicants are also concerned that injury is likely to occur to persons using the open space area under the canopy should limbs fall from the section of canopy that overhangs their property. It was noted that the area under the canopy of the trees comprises the majority of open space available in the rear yard. 9. The issue of live branch failure is discussed at (9). 10. With the expertise that I bring to the Court I determine that it is predictable that deadwood will fall from the canopy periodically and further it is considered that it is likely the larger sections of deadwood would cause injury if they were to hit a person. 11. I am satisfied that, given the intensive use (and the nature of the use) of the area below the overhanging canopy and the presence of a considerable amount of deadwood in the canopy, section 10 (2) of the Act is met and that pursuant to Section 9 orders can be made to prevent injury to a person. 12. The Court has considered the matters at section (12) of the Act and acknowledges the contribution that the tree makes to the amenity of the surrounding landscape and in particular to the land on which it is situated. Consideration has also been given to the impact of removing all of the limbs (both live and dead) that overhang onto the applicant's property. 13. With the expertise that I bring to the court I determine that the removal of the entire tree or healthy and sound limbs is not necessary in relation to mitigating the potential risk of injury and that the appropriate order is for the pruning of deadwood. Tree 2 1. There is one limb from Tree 2 that overhangs the applicant's property above the pool. 2. The applicants are concerned that should this limb fail it will cause injury to a person. 3. There was nothing evidenced or noted on site that indicates that the overhanging limb is likely to fail in the near future. 4. With the expertise that I bring to the Court I determine that it is predictable that dead branches will fall from the limb periodically and consider that it is likely that the larger sections of deadwood would cause injury if they were to hit a person. 5. I determine that the removal of the entire limb that overhangs the applicant's property is not necessary and that the appropriate order to mitigate the risk of injury is for the pruning of the deadwood. 6. I am satisfied that given the use of the area below the overhanging limb and the amount of deadwood in the canopy that section 10 (2) of the Act is met and pursuant to Section 9 orders can be made to prevent injury to a person. Orders On the basis of the foregoing, the Orders of the Court are: 1. The application is upheld in part. 2. The application to remove Tree 1 is dismissed. 3. Within 30 days of the date of this order, the respondent is to engage and pay for an AQF Level 3 Arborist with appropriate insurances to prune Tree 1 and Tree 2 (Stringybarks). All deadwood with a diameter of greater than 20mm at the point of attachment (branch collar) is to be removed from the area of the canopy that overhangs the applicant's property and to a distance of 2 meters within the respondent's property. Any branches that are found to be structurally unsound are to be removed from the area of the canopy that overhangs the applicant's property and to a distance of 2 meters within the respondent's property. 4. All work shall be carried out in accordance with AS 4373 'Pruning of Amenity Trees' and the WorkCover NSW Code of Practice for the Amenity Tree Industry. 5. The contractor engaged by the respondent is to remove all debris from the pruning works. 6. If required, the applicants are to provide reasonable access for the purpose of quoting and or for carrying out the works in order 3. Work is to be carried out during reasonable hours of the day. 7. The respondent is to give the applicants written notice of the works in order (3) a minimum of one week prior to the works being undertaken. 8. For the life of the trees, every two years on the anniversary of the date of these orders the respondent is to engage an Arborist to undertake works as specified in (3). L Durland Acting Commissioner of the Court