Land and Environment Court New South Wales Medium Neutral Citation: Tavares v Pikoulas & anor [2016] NSWLEC 1207 Hearing dates: 6 May 2016 Date of orders: 06 May 2016 Decision date: 06 May 2016 Jurisdiction: Class 2 Before: Durland AC Decision: The application is upheld. Catchwords: Trees (Disputes Between Neighbours); injury; deadwood; pruning ordered Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Category: Principal judgment Parties: Belinda Tavares (Applicant) Mechel Pikoulas (First Respondent) Pantelis Athanasopoulos (Second Respondent) Representation: B Tavares, litigant in person (Applicant) M Moss, property manager (Respondents) File Number(s): 20046 of 2016 Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1. This is an application pursuant to section 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) concerning a mature Corymbia maculata (Spotted Gum) located on the respondents' property at Padstow in Sydney. 2. The tree is located at the rear of the respondents' property close to the common boundary fence at the rear of the applicant's site. 3. The trunk of the tree leans towards the applicant's property as a result of being suppressed in the past by an adjacent tree that is no longer standing. The suppression has also resulted in an asymmetrical canopy with the majority of the foliage being located towards the applicant's property. 4. There is a pool on the applicant's property located under a portion of the tree canopy. A clear plastic domed canopy has been installed over the pool. 5. The applicant is seeking orders for significant pruning of the tree and for regular inspections and pruning to be undertaken by a qualified arborist. The applicant is concerned that falling branches will cause damage to property or injury to a person. 6. It is noted that the applicant is also seeking compensation for the arborist's report, the application to Bankstown Council and for the Court application fees. Commissioners and Acting Commissioners do not have the power to order the payment of legal costs, cost of expert reports and other expenses. Claims for these costs must be made by a Notice of Motion which will be heard and determined by a Judge or Registrar. 7. The provisions of section 10(2) of the Trees Act require that I be satisfied that one or more of four tests are met with respect to each tree subject to the application, before I have jurisdiction to consider the application. These tests are: Has the tree caused damage to the applicant's property? Is the tree now causing damage to the applicant's property? Is the tree likely in the near future to cause damage to the applicant's property? Is the tree likely to cause injury to a person? Only if one or more of the tests is satisfied can I move on to consider what orders, if any, I should make in respect to the tree. The Tree 1. The Spotted Gum has a trunk diameter in excess of 900mm and is greater than 15 meters in height. The tree is in good health and the branch attachments appear to be sound from a ground based visual inspection. There is a moderate amount of deadwood throughout the canopy and two rubbing branches were sighted. There is a Mistletoe plant located in the portion of the canopy that overhangs the applicant's site. 2. An Arboricultural Assessment report prepared by Sam Allouche from NSW Tree Services (dated 8 December 2015) was submitted with the application. The report documents that the tree is in good health and vigour with no pests or diseases. The report also contains a low hazard rating for the tree. With the expertise that I bring to the Court I agree with the foregoing findings. 3. For reasons that seem to be based on abating nuisance the arborist has recommended that a total of 5 (2 x 200mm diameter and 3 x 100mm diameter) branches be removed from the canopy. The nominated branches have not been identified as being unhealthy or structurally unsound. 4. The removal of healthy and well attached limbs as recommended is considered inappropriate and unnecessary. Background 1. The applicant contends that she has made several requests over the past few years, through the property manager and more recently directly to the respondent, to have the Spotted Gum pruned. 2. The requests were made because the applicant was concerned that a branch would fall from the tree causing injury to a person. The applicant also wanted to mitigate the amount of debris from the tree that falls into her property. 3. It is understood that the respondents applied to Bankstown City Council to have the tree removed in early March 2016. 4. A letter in response from Bankstown City Council dated 23 March 2016 was sighted at the hearing. The letter refused the application to remove the tree however made note that "the removal of all deadwood and pruning up to 10% of the tree's foliage, within a period of not less than 12 months since any prior pruning, can be carried out at any time and does not require Council consent." 5. The respondents recently arranged for pruning works to be undertaken however for reasons that are not entirely clear the works were restricted to the removal of deadwood and minor pruning on the respondents' side of the canopy only. 6. Evidence of recent branch removal and a lack of deadwood on the area of the canopy overhanging the respondents' property were noted at the hearing. Small and fresh wounds could also be seen on the trunk and in the lower canopy and appeared to be consistent with the use of 'climbing spikes'. 7. The applicant contends that the respondents have stated that they are happy for the applicant (and any other impacted neighbour) to engage a contractor to remove deadwood from the tree however that they will not pay for the work. Debris 1. The applicant raised concerns about the amount of debris that falls from the tree into her backyard. The applicant contends that the pool canopy was installed to protect pool users from falling debris and also to mitigate the amount of debris that enters the pool filtration system. 2. In relation to the deposition of leaves I am guided by the Tree Dispute Principle in Barker v Kyriakides [2007] NSWLEC 292 that says: "For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean their gutters and the surrounds of their houses on a regular basis. The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree." Injury 1. As previously documented at (8) there is a moderate amount of deadwood throughout the canopy of the tree. 2. The area of the applicant's property located under the tree includes some of the pool and the paved surrounding space. As previously mentioned at (4) the pool has a domed cover that is permanently in place however the ability of the plastic to withstand piercing from a falling dead branch is not known. 3. The shedding of deadwood is predictable and I consider that if the larger dead branches were to shed and make contact with a person it is likely that injury would occur. 4. I am satisfied that the requirements under section 10(2) of the Act have been met in relation to future injury that may be caused by the tree and therefore Orders can be made in this regard. 5. Before making the Orders the Court must consider the matters under Section 12 of the Act. The relevant matters are : (a) The tree is located on the respondents' property close to the common boundary with the applicant's property. (b) The impact of pruning (b2) as specified in the arborist's report included in the application is not necessary and is likely to be detrimental to the tree. The tree contributes to shading and significantly enhances the amenity (b3) of the land on which it is situated and the adjacent properties. (d) It is likely that this mature native species is contributing to the local ecosystem and biodiversity. (f) The tree can be seen from several surrounding properties and streets and therefore contributes to the public amenity. (i) The applicant has installed a domed pool cover to mitigate the impact of debris and falling deadwood. Orders 1. On the basis of the foregoing, the Orders of the Court are: 1. The application to prune the Spotted Gum in accordance with the recommendations in the Arboricultural Assessment report prepared by NSW Tree Services (dated 8 December 2015) is dismissed. 2. Within 60 days of the date of this order the respondents are to engage and pay for an AQF Level 3 Arborist with appropriate insurances to prune the Spotted Gum. 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 metres within the respondents' property. All rubbing branches and Mistletoe plants are to be removed from the canopy. 3. 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. Climbing spikes are not to be used. 4. All pruned material is to be removed from the applicant's property. 5. The applicant is to provide reasonable access (if required) for the purpose of quoting and for the safe and efficient carrying out of the works in order (2) and (3). Work is to be carried out during reasonable hours of the day. 6. The respondents are to give the applicant written notice of the works in order (2) a minimum of two weeks prior to the works being undertaken. 7. Every 3 years, within 14 days of the anniversary of the date of these orders, the works as specified in (2) shall be undertaken in accordance with (3), (4), (5), and (6). L Durland Acting Commissioner of the Court ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 May 2016