Huggett & anor v Burrowes [2015] NSWLEC 1057

Land and Environment Court New South Wales

Medium Neutral Citation: Huggett & anor v Burrowes [2015] NSWLEC 1057 Hearing dates: 18 March 2015 Date of orders: 18 March 2015 Decision date: 18 March 2015 Jurisdiction: Class 2 Before: Fakes C Decision: Application upheld – tree removal ordered see [16] Catchwords: TREES [NEIGHBOURS] Potential damage or injury Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: Claude and Janet Huggett (Applicants) Geoff Burrowes (Respondent) Representation: Counsel: Applicants: C & J Huggett (Litigants in person) Respondent: G Burrowes (Litigant in person)

Solicitors: File Number(s): 21029 of 2014

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1. COMMISSIONER: The owners of a property in Dubbo have applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the removal of a Lemon-scented Gum growing on an adjoining property. The applicants also seek reimbursement of the costs associated with the making of the application. 2. The orders are sought on the basis that limbs have fallen from the tree into the applicants' property and while no significant damage or any injury has occurred thus far, the applicants are concerned about future damage or injury that may arise from further branch drop or tree failure. 3. The respondent does not oppose removal but only on the basis that the tree is found to be a danger. 4. In regards to the reimbursement of the application filing fee, Commissioners do not have the jurisdiction to award costs and a separate Notice of Motion would be required to be heard by a Judge or Registrar of the Court. 5. In applications made under Part 2, the key jurisdictional test is satisfaction of s 10(2) of the Act. This states that the Court must not make an order under this Part unless it is satisfied that the tree in question has caused, is causing, or could in the near future cause damage to an applicant's property or could cause injury to any person. 6. In a guidance decision published in Yang v Scerri [2007] NSWLEC 592, as a rule of thumb, the 'near future' is deemed to be a period of 12 months from the date of the determination. 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, any history of previous failures and the circumstances of the site apparent at the time of the hearing. 7. By way of background, in April 2013, two gums of similar size and species collapsed without warning and caused damage to the applicants' property. The respondent stated that this occurred in windy conditions after a period of prolonged rainfall. These trees have been removed. 8. The tree in question is a mature specimen growing close to the common side boundary. More than half the canopy overhangs the applicants' backyard. The tree was present when the applicants purchased their property 25 years ago. The respondent has owned his property since 1993. 9. The applicants stated that on three occasions, green branches of a substantial size fell from the upper portions of the canopy of the tree the subject of this application onto their property. The first branch fell in April 2014, the second in June 2014 and the third in or about June/ July 2014. Photographs in the claim form show branches #2 and #3 – both of which appear to have been healthy. All branches fell without warning in calm conditions. 10. Branch #2 fell across the applicants' clothes line and therefore the applicants are concerned that had anyone been hanging out the washing at the time then serious injury could have occurred. 11. With the arboricultural expertise I bring to the Court I observed the tree to be generally healthy with no obvious signs of instability. There is evidence of previous inexpert lopping of two low branches; apart from this the tree appeared structurally sound. 12. In regards to the failure of the branches I observed evidence of the location of one of the failure points high in the canopy. In my opinion, from the evidence on the tree, the photographic evidence and the uncontested oral evidence of the applicants, the branch failures are consistent with the phenomenon of "sudden limb failure" (sometimes called "summer branch drop"). This is the unpredictable failure of live branches in calm weather. 13. I am satisfied on the evidence that failure of another branch could cause damage to property or could cause injury to any person and thus s 10(2) is satisfied. While the 12 month 'rule of thumb' in Yang v Scerri may not strictly apply in terms of future damage, I am satisfied that three failures indicates a propensity for branch shedding in this particular individual specimen and that future injury is reasonably foreseeable. 14. In consideration of the relevant discretionary matters in s 12 of the Act, the tree contributes to the amenity of the two properties and to a lesser extent to the streetscape. However, given the number of failures and the immediate target areas of two frequently used residential backyards, the risks outweigh its amenity value. Again with the expertise I bring to the Court, given the circumstances and the nature of the branch failures I do not find that any selective pruning is appropriate. 15. Had the tree only shed one branch it is unlikely that any intervention would be ordered however given the three failures it is prudent to order removal of the tree. 16. Therefore on the evidence before me, the Orders of the Court are: 1. The application is upheld. 2. Within 60 days of the date of this judgment, the respondent is to engage and pay for an AQF level 3 arborist, with appropriate insurance cover, to remove the tree to ground level and poison the stump. 3. The work is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry. 4. The applicants are required to provide all reasonable access for the purpose of quoting and or for the safe and efficient removal of the tree on reasonable notice. _______________________ Judy Fakes Commissioner of the Court 21029 of 2014 (55.3 KB, doc)