Land and Environment Court New South Wales Medium Neutral Citation: Xuereb v Ott [2016] NSWLEC 1409 Hearing dates: 26 August 2016 Date of orders: 26 August 2016 Decision date: 26 August 2016 Jurisdiction: Class 2 Before: Durland AC Decision: The application is upheld Catchwords: Trees (Disputes Between Neighbours); injury, damage, jurisdictional tests, deadwood, pruning Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Xuereb v Ott [2007] NSWLEC 474 Texts Cited: Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: J Xuereb (Applicant) J Ott (Respondent) Representation: J Xuereb, litigant in person (Applicant) L Fermanis (for the Respondent) File Number(s): 16/00182050 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 two mature Eucalyptus moluccana (Grey Box) trees located on the respondent's (Mr Ott) property in the western Sydney suburb of Rooty Hill. 2. The trees are identified in the application as T1 and T2. 3. The applicant, Mr Xuereb, owns the property that adjoins the rear of the property where the trees are located close to the common boundary. 4. The applicant is seeking orders for the removal of the two trees and for the respondent to pay him $300 as a reimbursement for the excess that he contends he was required to pay in relation to a recent insurance claim. 5. The application includes images of fallen limbs that are in contact with various structures in the rear yard. Additionally, the application includes written details of the contended damage caused by the limbs that fell from the trees during a severe storm in January 2016. 6. The respondent wants the trees to remain and is willing to have any required remedial pruning undertaken. 7. When asked at the hearing if he could point out any particular limbs that are causing concern the applicant stated that there are not any particular branches that are of concern. The applicant stated that the proximity of the trees to his rear yard and the size of the trees in conjunction with the recent branch failures were of concern to him. 8. The applicant is concerned that more limbs will fall from the trees and cause damage to property or injury to a person. 9. By way of background, these same two trees and one other were the subject of a past application; Xuereb v Ott [2007] NSWLEC 474. The Orders in 2007 were that one tree in poor health and structural condition was to be removed and that the other two remaining trees were to be pruned by a qualified arborist. The pruning was to limit the branches overhanging the applicant's property and to remove deadwood. The respondent stated that this work was undertaken in early 2008. 10. The respondent has filed with the Court a report prepared by Mr Scott Gatenby of Apex Tree & Garden Experts relating to a ground based inspection of the two trees that was undertaken in July 2016. Mr Gatenby has assessed both trees as being in good health with fair to good form. 11. 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 each of the trees. Tree 1 1. Tree 1 is located towards the centre of the respondent's property approximately 4 metres from the rear boundary. There is a garden bed at the base of the 900mm diameter trunk and vegetation obscures the lower section of the trunk. This tree is in excess of 16 metres in height. 2. Very little, if any, of the canopy of Tree 1 overhangs the applicant's property. 3. I note that at the hearing I could see evidence of three recent branch failures within the canopy, one 'tear out' and two remaining splintered stubs, one of significant length. The branches that had failed were between approximately 90mm and 170m in diameter. 4. The tree is in good health and with the expertise that I bring to the Court I note that there was nothing that could be seen from a ground based inspection that would indicate structural issues necessitating the removal of the tree. 5. Both the applicant and respondent agree that limbs were detached from the tree during a severe storm with very strong winds on 14 January 2016. 6. In addition to the damaged limbs and stubs I noted some deadwood in the canopy and Mistletoe. 7. The applicant did not engage an arborist to provide him with an assessment of the structural soundness of the tree. The Courts standard directions for tree disputes (Direction 13) permit each party and any advising expert to access the other party's property to undertake a prehearing inspection of the relevant matters. Despite having the opportunity to do so the applicant did not engage an arborist to undertake an inspection (most useful would have been an aerial inspection). The applicant has not provided evidence to support the contention that the structural integrity of the tree is such that branches are likely to fail in the near future causing damage to property or injury to a person. 8. In relation to possible future damage guidance is taken from Yang v Scerri [2007] NSWLEC 592 where the Court applied a 'rule of thumb' that the appropriate timeframe for 'in the near future' is a period of 12 months from the date of the hearing. Tree 2 1. Tree 2 is located adjacent to the shed in the rear corner of the respondent's property, approximately 2 metres from the common rear boundary. The tree is in excess of 16 metres in height, has a trunk diameter of approximately 700mm and is co dominant from approximately 2 metres. 2. At the hearing evidence could be seen in the canopy of one recent branch failure of a limb approximately 80mm in diameter. 3. A few branches very high in the canopy slightly overhang the applicant's property. 4. A stub resulting from a recent clean cut that looked to be approximately 150mm in diameter could be seen on the applicant's side of the trunk at a height of approximately 4 metres. The applicant stated that the person engaged to clear the storm damaged branches also removed the lowest limb that was overhanging his property because he said it was dangerous. 5. The respondent disagreed that the limb that was overhanging the secondary dwelling on the applicant's property was damaged or required removal. 6. There is some deadwood and Mistletoe in the canopy of Tree 2. 7. The tree appears to be in good health and there was nothing that could be seen from a ground based inspection that would indicate structural issues that would necessitate the removal of the tree. 8. There was nothing evidenced or sighted to convince me to the degree required that branches are likely to fail from Tree 2 in the near future causing damage to property or injury to a person. Property Damage 1. The applicant contends that during the storm in January 2016 detached limbs from the trees fell into his property damaging various structures such as guttering, a roof panel, fence panels and the verandah fly screen. 2. As a result of the evidence in the canopies that branches have recently failed in conjunction with the images included in the application I accept that it is likely that some or all of the damage occurred as a result of one or more limbs falling from one or both of the trees. 3. In the arboricultural report provided by the respondent Mr Gatenby included some discussion about the likely cause of the limb failures. Mr Gatenby is of the opinion that the splintering pattern where the limbs broke indicates failure due to significant force from the very strong winds and not from any structural weakness. 4. As I am not able to inspect the failed limbs or inspect the point of failure within the canopy in any detail I am not able to be certain in relation to the cause of the limb failures. Notwithstanding the foregoing, from the observations that are possible I think it likely that the force and pattern of the wind gusts in the January 2016 storm were the cause of the limbs breaking from the trees. 5. Despite the lack of certainty relating to the cause of the limb failures, I am satisfied that the requirements under s10 (2) of the Act have been met in relation to damage that has been caused by the trees and therefore jurisdiction of the Court is enlivened. Injury to a person 1. The applicant contends that his daughter was outside during the storm attempting to secure the dogs in their kennels when the largest of the limbs fell and narrowly missed her. The applicant stated that his daughter was and still is distressed about the incident and that he is concerned that a similar incident may occur again with more serious consequences. 2. There was no evidence submitted to the Court in relation to the impact of the alleged incident on the applicant's daughter. 3. There was nothing evidenced or sighted that would convince me to the extent required that in the range of conditions typically experienced at the applicant's and respondent's properties there is likely to be failures of live undamaged limbs that could cause injury to a person. 4. There is some deadwood throughout the canopies of the trees and it is considered that it is likely that the larger pieces of deadwood would cause injury if they were to fall from the trees and hit a person. It is predictable that the deadwood will fall from the canopy at some time. Debris and Leaf Litter 1. At the hearing the applicant also raised concerns about the amount of debris and small branches that fall from the trees onto the roof and into the rear yard of his property. 2. In relation to the deposition of debris 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." Compensation of insurance excess 1. As previously discussed at (31) it is not possible to be certain the limbs that failed were structurally sound and failed due to extraordinary wind forces or if there were structural issues that could have been predicted and likelihood of failure mitigated if the trees had been inspected by a suitably qualified arborist. 2. Notwithstanding the above and as also previously mentioned I am satisfied from the evidence that limbs did fail from the respondent's trees and cause damage to the applicant's property. 3. I determine that if the applicant can provide a Tax Invoice from the insurance company for the excess amount of $300 relating to the property damage claim it is appropriate that the respondent contributes to that amount. Conclusion 1. The two trees contribute substantially to the general amenity of the land on which they are located and are likely to contribute to the ecosystem and biodiversity of the local area. 2. The total removal of both of the trees as sought by the applicant is deemed to be inappropriate when considering the likely circumstances of the most recent failures that caused damage, the lack of evidence provided or sighted in relation to likely failure of limbs in the near future and the factors at s12 of the Act. Orders 1. On the basis of the foregoing, the Orders of the Court are: 1. The application to remove the two Eucalyptus moluccana (Grey Box) trees is dismissed. 2. The application for compensation for the insurance claim excess is upheld. 3. Within 21 days of the date of this order the applicant is to provide to the respondent a Tax Invoice from the insurance company indicating that the excess of $300 has been paid in full. Within 28 days of the date of this order the respondent shall pay the applicant $150 being a contribution of 50% of the total amount paid. If the Tax Invoice is not provided within 21 days of the date of this order the respondent is not required to reimburse $150 to the applicant. 4. Within 60 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 the deadwood from both trees. 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 4 metres within the respondents' property. Any branches that are structurally unsound and any stubs that are remaining from fallen branches are also to be removed. 5. Within 60 days of the date of this order the respondent is to engage and pay for an AQF Level 3 arborist to undertake reduction pruning on the limb from Tree 2 that overhangs the applicant's property to reduce the end weight on the supporting co dominant trunk. 6. 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. 7. The contractor engaged by the respondent is to remove all debris from the pruning works from the applicant's property. 8. 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 (4) and (5). The applicant must provide the respondent with contact details and work is to be carried out during reasonable hours of the day. 9. The respondent is to give the applicant written notice of the works in order (4) and (5) a minimum of one week prior to the works being undertaken. 10. Every 4 years, within 14 days of the anniversary of the date of these orders, the works as specified in (4) shall be undertaken in accordance with (6), (7), and (8). 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: 13 September 2016