Koutlis v Javleski [2015] NSWLEC 1533

Land and Environment Court New South Wales

Medium Neutral Citation: Koutlis v Javleski [2015] NSWLEC 1533 Hearing dates: 18 December 2015 Date of orders: 18 December 2015 Decision date: 18 December 2015 Jurisdiction: Class 2 Before: Fakes C Decision: Removal refused; orders for pruning Catchwords: TREES [NEIGHBOURS]: Possible damage to property or injury to people Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Hinde v Anderson & anor [2009] NSWLEC 1148, Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 McCallum v Riodan & anor [2011] NSWLEC 1009 Yang v Scerri [2007] NSWLEC 592 Zangari v Miller (No 2) [2010] NSWLEC 1093 Category: Principal judgment Parties: Samantha Koutlis (Applicant) Ace Javleski (Respondent) Representation: Applicant: Bill Koutlis (Agent) Respondent: Val Javleski (Agent) File Number(s): 20820 of 2015

Judgment 1. COMMISSIONER: The applicant owns a property in Figtree. She contends that five trees growing at the rear of the respondent's property pose an imminent risk of falling into her property and as such could cause extensive damage to her pool, fence and retaining walls and could kill any person who happens to be in the path of the falling trees. 2. The applicant has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the removal of the trees. 3. The applicant states in the application claim form that in April 2014 another tree in the respondent's property fell over in a storm. The tree caused damage to two adjoining fences. She maintains that as the trees are growing on a slope, and soil is being washed away from their roots, the roots are therefore compromised and the trees could fall. The applicant describes the trees as growing in a water course. She states that soil is being eroded and washed through onto her property. 4. The applicant's husband who appeared as her agent stated on site that he had not cleared the swimming pool for the last 6 months as he was fearful of the trees falling. I was shown one dead branch that the applicant stated had fallen from one of the trees in the last month. 5. Neither party engaged an arborist to provide any independent arboricultural expert opinion. My findings are based on the arboricultural expertise I bring to the Court. The trees were visually inspected from the ground. 6. The trees are identified in the claim form as being four x Turpentines and 1 x Blue Gum. I identified the trees as: * T1 – Grevillea robusta – Silky Oak * T2 – Eucalyptus saligna – Sydney Blue Gum * T3 – Eucalyptus microcorys – Tallowwood * T4 - Eucalyptus microcorys – Tallowwood * T5 - Grevillea robusta – Silky Oak 1. The respondent's back yard is on relatively steep slope flattening out to a previously levelled area. Trees 2-5 are growing below a small embankment created by this past levelling and relatively close to the common dividing fence. Tree 1 is upslope and to the southeast of these trees. The respondent's wife stated that in the four years they had owned the property her husband had worked hard clearing what was a very overgrown property. The "water course" does not appear to be natural ephemeral stream but rather a path over which water flows in heavy downpours as a consequence of development and landscaping works on the respondent's and other upslope properties. 2. In applications under Part 2, the key jurisdictional test is found in s 10(2). This states: (2) The Court must not make an order under this Part unless it is satisfied that the tree concerned: (a) has caused, is causing, or is likely in the near future to cause, damage to the applicant's property, or (b) is likely to cause injury to any person. 1. The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. At [62] Craig J states in part "something more than a theoretical possibility is required in order to engage the power under [the Trees] Act…". In these matters, the onus is on the applicant to provide sufficient evidence to support their application. 2. As the applicant is concerned about future damage and or injury, in a guidance decision published in Yang v Scerri [2007] NSWLEC 592, the Court determined that, as a rule of thumb, the 'near future' for damage 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. 3. I observed all of the trees to be healthy, mature individuals with no obvious structural defects. There is a small and normal percentage of dead wood in the canopies of the Eucalypts. Tree 2 has a long reaching branch extending over the applicant's property however the attachment appeared normal. I observed no signs at the base of any of the trees that would lead me to conclude that any of the trees are at imminent or foreseeable risk of whole tree failure. 4. In my opinion, the only parts of any of the trees that could fail onto the applicant's property in the next 12 months (or is otherwise foreseeable) are the few dead branches in the overhanging parts of the Eucalypts and perhaps Tree 5 – the Silky Oak. The shedding of dead wood is a normal and predictable aspect of tree growth. (Tree 4 is too far away from the applicant's property for the falling of dead wood to be a problem.) As the trees are quite tall and parts of their canopies overhang the rear of the applicant's property, orders will be made for the removal of dead wood on a biennial basis. As there is only a small amount of pruning to be undertaken, this should not be an expensive process. 5. While whole tree failure is a hypothetical possibility, based on the absence of evidence of any instability of the trees or any other compelling evidence, no orders will be made for their removal. 6. In addressing the relevant issues in s 12 of the Act; the trees as mature specimens are likely to have been well-established and prominent when the applicant purchased her property five years ago. Removal of dead wood, if carried out in accordance with the Australian Standard AS4373:2007 Pruning of Amenity Trees will cause no damage to the trees. The trees provide amenity to both the respondent's property and to the public as they form part of the landscape character of the area. The trees are likely to provide food and shelter for native fauna and play a role in stabilizing the soil. 7. Nothing in these orders prevents the respondent, [or the applicant if permitted under the provisions of Wollongong City Council's Tree Preservation Order], from applying to council to prune or remove trees. 8. As discussed in Hinde v Anderson & anor [2009] NSWLEC 1148, a fresh application can be made if the circumstances have changed since the Court determined the earlier application and there is fresh evidence. The judgments in McCallum v Riodan & anor [2011] NSWLEC 1009 and Zangari v Miller (No 2) [2010] NSWLEC 1093 give some indication as to what the Court considers to be 'changed circumstances' and fresh evidence. 9. Therefore having considered the application, the Orders of the Court are: 1. The application to remove five trees is refused. 2. By 1 March 2016, the respondent is to have engaged and paid for an AQF level 3 arborist, with appropriate insurance cover, to remove any deadwood in excess of 50mm at its base from all parts of the four trees which overhang the applicant's property. The removal of dead wood is to extend to a distance of two metres inside the respondent's property. 3. The work in (2) is to be carried out in accordance with Australian Standard AS4373:2007 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry or equivalent safety standard. No climbing spikes are to be used to access or work in the trees. 4. The applicant is to provide all reasonable access on reasonable notice for the purpose of quoting and the safe and efficient carrying out of the works in (2). 5. Every two years, within two weeks either side of the anniversary of the first pruning in order (2), the works in orders (2) to (4) are to be repeated in perpetuity as long as any of the four trees remains. _________________ Judy Fakes Commissioner of the Court