Franks v Banks [2017] NSWLEC 1010

Land and Environment Court New South Wales

Medium Neutral Citation: Franks v Banks [2017] NSWLEC 1010 Hearing dates: 13 January 2017 Date of orders: 13 January 2017 Decision date: 13 January 2017 Jurisdiction: Class 2 Before: Fakes AC Decision: See [13] Catchwords: TREES [NEIGHBOURS] Potential damage and or injury Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: Noel Franks (Applicant) Harold Banks (Respondent) Representation: Applicant: Noel Franks (Litigant in person) Respondent: Harold Banks (Litigant in person) File Number(s): 302648 of 2016

Judgment 1. COMMISSIONER: The applicant owns a property in Bonnells Bay on Lake Macquarie. He is concerned that trees located on an adjoining property could cause damage to property on his land or could cause injury to his family. 2. The applicant has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for an order requiring the respondent to remove six trees. 3. 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. As the applicant is concerned about future damage, the guidance decision in Yang v Scerri [2007] NSWLEC 592 has determined that the 'near future' is a period of 12 months from the date of the hearing. 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, the history of any failures, any other relevant evidence, and the circumstances of the site apparent at the time of the hearing. 2. The six trees about which the application is made are located in the north-western portion of the respondent's undeveloped block of land, close to the applicant's shed and backyard. They are remnants of the original forest. There are many other trees on the block which are not part of the application. 3. Trees 1 and 2 (T1, T2) are dead; T3 is a Corymbia sp (Bloodwood), T4 and T5 are Angophora costata (Sydney Red Gum) and T6 is an unidentified Eucalyptus sp. 4. The applicant is concerned that branches will continue to fall from the dead trees with the potential to cause damage or injury. He is also concerned that the canopies of Trees 3, 4 and 5 overhang his property and branches could continue to fall. Tree 5 is on a lean and the applicant is worried that it may fall onto his property, especially if T3 or T4 should fail. 5. The applicant states that T6 is on a lean of about 45�, having been blown to this position in a storm. If it falls it is likely to damage the dividing fence and the corner of his shed. 6. Neither party engaged an arborist to provide independent expert opinion. With the arboricultural expertise I bring to the Court I made the following observations. 7. While no damage has been occurred to date, trees 1 and 2 are dead and will continue to shed branches. The trees are close enough for branches to fall onto the applicant's property and therefore could cause damage or injury within the usual time frame applied by the Court in tree matters. I am satisfied that the tests in s 10(2) are met for these trees and they should be removed. 8. Trees 3,4 and 5 have habits typical of trees growing on the edge of a forest group; that is, the canopies are asymmetrical and orientated to the light, which in this case is partially over what is now the applicant's land. The trees are of average health and condition with a normal percentage of dead wood. As the failure of dead wood is predictable, and there are some dead branches of a size that could cause damage/injury, s 10(2)(a) is satisfied and orders will be made for the removal of those dead branches. While T4 is on a slight lean, I saw no signs that suggest failure in the usual time frame. 9. Tree 6 is showing signs of failure consistent with partial wind-throw. There is a lifting of the root plate opposite the lean. The canopy does not show many signs of readjusting its habit. Given this partial failure and the proximity of the shed, I am satisfied that the Court's jurisdiction is engaged and it would be prudent to prevent future damage by ordering the removal of the tree. 10. Therefore, the orders of the Court are: 1. Within 60 days of the date of these orders, the respondent is to engage an arborist with a minimum AQF level 3 qualification in Arboriculture, and with appropriate insurance cover, to carry out the following work on the six trees (shown on the plan in the application claim form) in the north-western corner of 17 Dalley Street, Bonnells Bay. 1. Remove the two dead trees, identified as T1 and T2 on the plan to a height no greater than 2m above ground level. 2. Remove T6 to ground level. 3. Remove all dead wood > 30mm in diameter at its base from all branches which overhang the applicant's property to a distance of 2m inside the respondent's property from Trees 3, 4 and 5. 1. All work is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry (or equivalent safety standard); the pruning is to be carried out in accordance with AS4373:2007 Pruning of Amenity Trees. Specifically, all final cuts are to be to the branch collar and climbing spikes are not to be used on trees to be pruned. 2. If required, the applicant is to provide all reasonable access on reasonable notice for the purpose of quoting and or the safe and efficient carrying out of the works in order (1). ____________________________ Judy Fakes Acting Commissioner of the Court