Land and Environment Court New South Wales Medium Neutral Citation: Kengike & anor v Jeffrey & anor [2016] NSWLEC 1579 Hearing dates: 18 November 2016 Date of orders: 18 November 2016 Decision date: 18 November 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 Category: Principal judgment Parties: L Kengike & G Rose (Applicants) M Jeffrey & A Jeffrey (Respondents) Representation: L Kengike & G Rose, litigants in person (Applicants) M Jeffrey & A Jeffrey, litigants in person (Respondents) File Number(s): 2016/00233409 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 tree located in the rear corner of the respondents' property in the western Sydney suburb of Erskine Park. The tree location is indicated in the application by a red circle on the diagram for question 2. 2. The subject tree is the only large tree in the rear yard of the respondents' property and is located approximately 1 metre from the common boundary fence with the applicants' property. The majority of the canopy overhangs the applicants' rear yard above the swimming pool. 3. The applicants contend that falling tree branches have caused damage to their pool lining in the past and also stated that they are concerned branches from the tree will fall again and cause further damage to their property or injury to a person in the rear yard. 4. The applicants are seeking orders for the removal of all of the branches that overhang their rear yard. 5. The applicants are also seeking reimbursement for the cost of the court filing fee. Commissioners and Acting Commissioners do not have the power to order the payment of legal costs, costs 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. 6. 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 applicants' property? Is the tree now causing damage to the applicants' property? Is the tree likely in the near future to cause damage to the applicants' 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. Background 1. In July 2015 the applicants contacted Penrith Council in relation to the tree in the respondents' property. 2. The Council's Tree Management Officer responded by letter indicating that the parts of the tree that were located over the applicants' property could be pruned to reduce the overhang. 3. In the letter it is also stated that all pruning would need to be undertaken from the applicants' property unless the respondents gave permission for the arborist to enter their site. 4. Although the applicants had a letter from Penrith Council indicating that they could prune the tree to reduce overhanging branches they did not proceed with the works. 5. In August 2015 the applicants contacted a Community Justice Centre (CJC) to arrange mediation with the respondents. The CJC response letter indicated that as there had been no reply from the respondents in relation to attending the proposed mediation the matter would not be able to proceed further. 6. In July 2016 an arborist provided a quote for the applicants to have the overhanging branches removed. The applicants contend that the arborist said he would need access to the respondents' property to correctly undertake the work. 7. The applicants stated that in July 2016 they did not contact the respondents to seek access to their property because they had previously had no response to the request for mediation. 8. The applicants also suggested at the hearing that they did not feel they should bear the cost of pruning the overhanging branches as the tree is not located on their property. The tree has caused damage 1. The applicants contend that they arranged for the arborist to quote on the pruning of the tree in July 2016 as a result of an incident a month or so earlier when branches fell from the tree causing damage to their pool lining. 2. The applicants have made an insurance claim for the cost of replacing the pool lining and are not pursuing any compensation in this regard. 3. Images were provided at the hearing that showed a significant amount of debris from a tree on the pool cover that had detached and was partially immersed in the pool water. 4. The images did not provide evidence of a direct link between the debris and any damage. I am therefore not satisfied, to the extent required, that the tree has caused damage to the property and so in that regard the application is dismissed. 5. The respondents indicated that falling debris from the tree had not caused any damage to their property and that they have no concerns in relation to the tree causing injury to a person. As previously noted at (2) the majority of the canopy overhangs the applicants' property. Tree likely to cause future damage or injury 1. The applicants raised concerns that branches will fall from the tree in the future and cause damage to their property or injury to a person. 2. It was evident at the hearing that there are dying branches and deadwood within the section of the canopy that overhangs the applicants' property. 3. With the expertise that I bring to the Court I determine that it is predictable that dead, dying and structurally unsound branches will fall from the tree periodically. It is likely that the deadwood will fall from the canopy in the near future. 4. I consider that the larger dead branches are likely to cause injury if they fall and come in contact with a person. I am satisfied that section 10(2) of the Act has been met and therefore the jurisdiction of the Court is enlivened in relation to future damage or injury to a person. 5. It was also noted at the hearing that there are two cavities at second order branch unions on the tree. It was not possible from the ground based inspection to determine the extent of the cavities, if there was active decay associated with the cavities or what impact (if any) the cavities may have on the structural soundness of the associated branches. 6. Before making any Orders the Court must consider the matters under section 12 of the Act. The relevant matters are : 1. The tree is located on the respondents' property close to the common boundary with the applicants' property. 2. The impact of pruning all overhanging branches as requested by the applicants is not necessary and is likely to be detrimental to the tree. 3. The tree contributes to shading and enhances the amenity of the land on which it is situated and the adjacent properties. 4. It is likely that this mature tree is providing habitat and is contributing to the local ecosystem and biodiversity. 5. The tree can be seen from several surrounding properties and streets and therefore contributes to the public amenity. Orders 1. On the basis of the foregoing, the Orders of the Court are: 1. The application to prune all overhanging branches from the tree 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 tree. 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 applicants' property and to a distance of 2 metres within the respondents' property. All damaged and dying branches are to be removed from the canopy where it overhangs the applicants' property. Branch unions are to be inspected and any branches that are assessed as being structurally unsound are to be removed from the tree. 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. 4. The contractor engaged by the respondents is to remove all debris from the pruning works from the applicants' property. 5. The applicants are 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). The applicants must provide the respondents with contact details and work is to be carried out during reasonable hours of the day. 6. The respondents are to give the applicants written notice of the works in order (2) a minimum of one week 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: 05 December 2016