Land and Environment Court New South Wales Medium Neutral Citation: Khachan v Nisevic [2017] NSWLEC 1093 Hearing dates: 24 February 2017 Date of orders: 24 February 2017 Decision date: 24 February 2017 Jurisdiction: Class 2 Before: Fakes AC Decision: Application granted see [19] Catchwords: TREES [NEIGHBOURS] Damage; potential injury; structural integrity of the tree; removal ordered Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Category: Principal judgment Parties: Geraldine Khachan (Applicant) Djuro Nisevic (Respondent) Representation: Applicant: Ms G Khachan (Litigant in person) Respondent: Mr D Nisevic (Litigant in person) File Number(s): 374701 of 2016 judgment 1. COMMISSIONER: The applicant owns a property in Croydon Park. In the rear garden of the adjoining property, close to the common side boundary, is a mature Liquidambar. While the base of the trunk is located wholly on the respondent's land, the majority of the severely pruned canopy overhangs the applicant's land. 2. The applicant has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of the tree and poisoning of the roots. The orders are sought on the applicant's contention that the roots are causing damage to paving, the trunk has damaged the fence, and the roots could eventually cause damage to other nearby structures. In addition, given the extent of overhanging of the canopy over her property, the applicant is concerned about potential injury to anyone on her property should any part of the tree fail 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. 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…". 2. 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. 3. The applicant engaged Mr Zahir Dewji, Senior Structural Engineer, Inhouse Consulting Engineers P/L to inspect her property and prepare a report. Mr Sam Allouche, Arborist, NSW Tree Services P/L was also engaged. The reports are included in the Application Claim Form. Neither expert was present at the hearing. 4. Mr Dewji notes significant ground heave and damage to the ground in the immediate vicinity of the tree as well as damage to the colorbond fence as a consequence of the tree. He notes the significant overhang of the remaining canopy over the applicant's property. In Mr Dweji's opinion, the tree is potentially unstable and vulnerable to failure and should be removed. 5. Mr Allouche makes similar observations to Mr Dweji. He notes the excessive pruning that has been carried out and opines that this has resulted in a specimen with poor crown architecture that cannot be remedied or corrected. Mr Allouche opines that the branches are vulnerable to failure. Given the poor form of the canopy, the damage to the paving and the risk to tree stability of installing a root barrier in order to prevent ongoing/ future damage to the applicant's property, he recommends removal. The on-site hearing and findings 1. The hearing commenced on site with an inspection of the tree from the respondent's property. Mr Joe Lilley, Tree Management Officer from Burwood Council attended the hearing and assisted the Court. 2. The base of the tree is wholly on the respondent's property. According to the respondent it was planted about 30 years ago. About 10 years ago, the respondent or his agent removed the main trunk down to two lateral branches which extend over the applicant's property. There are no branches remaining over the respondent's garden. 3. It was clear from the respondent's side of the fence that there is a pocket of decay in the remaining section of the trunk, just above the point of attachment of the upper of the two remaining branches. I asked Mr Lilley to comment on the condition of the tree as he saw it on the day. In his opinion there is likely to be extensive decay in the trunk as indicated by the cavity at the top and the 'reaction wood' that has formed in the lower section of the tree. In his view this is a structurally compromised tree at risk of failure and if the respondent had applied through council's tree management controls to have it removed, approval would have been granted. Apart from the poor structure, Mr Lilley stated that Burwood Council would usually approve the removal of a Liquidambar located within 5m of a building with a floor space area of 30m2 on the basis of potential damage to footings by roots. 4. In regards to the reports of the applicant's engineer and the arborist, neither of them appear to have undertaken any excavation to confirm that the uplift of the paving is due to roots and nor has the arborist commented on the obvious decay in the trunk. While I observed some uplift of brick paving which may be caused by roots, the onus is on the applicant to prove this assumption. It is disappointing that neither expert undertook what would have been a relatively straight forward exercise. It is not the role of the Court to uncover the evidence. 5. Apart from the path, the applicant maintains that an area of informal 'crazy' stone paving is also affected by roots. While a root was seen, there is no evidence of widespread damage by roots. This is a very disturbed area and could have been disrupted by many things. There is no evidence of the original condition of this section of paving. 6. The tree trunk abuts the fence and has displaced a lower rail of one panel of the Colorbond fence. This has caused one of the panels to separate slightly but the fence is still functional and the fence easily rectified. 7. Therefore while the tree may be a cause of the uplift of the paving and is slightly damaging the fence, the main concern is the risk of injury. 8. With the arboricultural expertise I bring to the court, I concur with Mr Lilley's assessment that the tree is structurally compromised. The remaining limbs are considerably long and heavy and should they fail, which is foreseeable, they would cause damage to property on the applicant's land and potentially serious injury to anyone who was on the applicant's land at the time. 9. Therefore I am satisfied that the relevant tests in s 10(2) are met and the Court's powers to make orders under s 9 are engaged. 10. Having regard to the relevant matters under s 12 of the Trees Act, the tree provides some shading of the applicant's yard but is otherwise a very poor specimen. In my view the condition of the trunk cannot be remedied and the risks outweigh any benefits the tree may provide. Orders will be made for the removal of the tree at the respondent's expense. As the majority of the canopy is over the applicant's land, and access through the respondent's property is every difficult, orders will also be made for the applicant, through her real estate agent, to provide all reasonable access on reasonable notice. As the applicant's property is tenanted, the tenants must also be notified. 11. Therefore, the Orders of the Court are: 1. Within 60 days of the date of these orders, the respondent Mr Nisevic, is to engage and pay for an arborist with a minimum qualification of AQF level 3 in Arboriculture, and with appropriate insurance cover, to remove the Liquidambar growing on his property to ground level. The stump is to be poisoned to prevent suckering. 2. The work is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree industry or equivalent safety standard. 3. The applicant is to provide the respondent with the contact details of her real estate agent. The respondent or his arborist is to liaise with the applicant's real estate agent in regards to timing of quoting and carrying out the work in order (1). 4. The applicant and her tenants, through her real estate agent, are to provide all reasonable access on reasonable notice, for the purpose of quoting and the safe and efficient carrying out of the work in order (1). _________________________ Judy Fakes 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: 27 February 2017