Hammond v Arcimowicz [2015] NSWLEC 1490

Land and Environment Court New South Wales

Medium Neutral Citation: Hammond v Arcimowicz [2015] NSWLEC 1490 Hearing dates: 25 November 2015 Date of orders: 25 November 2015 Decision date: 25 November 2015 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is upheld. See orders at paragraph 13. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage by falling branches; risk of damage and injury; orders for regular tree assessment. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Category: Principal judgment Parties: Anthony Hammond (Applicant) Stanley Arcimowicz (Respondent) Representation: Anthony Hammond, litigant in person (Applicant) Stanley Arcimowicz, litigant in person (Respondent) File Number(s): 20795 of 2015

Judgment

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

Background of the application 1. During the severe storms in April of this year large branches fell from a native tree in the front garden of Mr Arcimowicz's Merewether property. One branch fell onto his own roof, the other onto his neighbour Mr Hammond's property, damaging roofing, a shade sail and a car to the extent that it was written off. 2. The mature Angophora costata (commonly known as a Smooth-barked Apple or Sydney Blue Gum, but for the remainder of this judgment simply referred to as 'the Tree') stands adjacent to the common boundary, perhaps three metres from the respondent's dwelling and five metres from the applicant's. Many years ago, before Mr Arcimowicz purchased his property, a major branch was removed on the northern side of the Tree leaving a large wound low on the stem. Also as a result of earlier pruning, the Tree's canopy is slightly biased to the south, over Mr Hammond's property. 3. Mr Hammond ('the applicant') became concerned principally that the Tree may fail due to its stem structure being weakened by the large wound, but also due to the risk of further limb failures. He says that a representative of Newcastle Council has told him he cannot prune the Tree without his neighbour's permission. He requested that his neighbours remove the Tree. 4. Mr Arcimowicz and Ms Bower live together at the property. Mr Arcimowicz owns the property and is 'the respondent' in this matter, however submissions were heard from them both during the hearing. They do not want to remove the Tree. They say it is part of the natural environment and that it provides habitat for tawny frogmouth owls, among its many other benefits. 5. Mr Hammond engaged Mr Ian McKenzie, consulting arborist, to assess the Tree. Mr McKenzie applied the International Society of Arboriculture (ISA) tree risk assessment methodology, otherwise known as TRAQ. He undertook a basic visual assessment (TRAQ Level 2 assessment) and determined that the level of risk due to limb failure was low, but that risk rating due to the stem's condition was moderate. Mr McKenzie recommended that the stem be tested using impulse tomography or a resistance-measuring drill to assess its structural integrity. Mr Hammond then applied to the Land and Environment Court pursuant to Part 2 of the Trees (Disputes Between Neighbours) Act 2006 ('the Trees Act') seeking orders for the Tree to be tested for structural integrity, and removed if necessary.