Land and Environment Court New South Wales Medium Neutral Citation: Inzitari & anor v Vautin & anor [2017] NSWLEC 1411 Hearing dates: 02 August 2017 Date of orders: 02 August 2017 Decision date: 02 August 2017 Jurisdiction: Class 2 Before: Fakes AC Decision: See [19] Catchwords: TREES [NEIGHBOURS] Potential damage to property; risk of injury; actions of the applicants; tree removal and replacement at applicants' expense Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Freeman v Dillon [2012] NSWLEC 1057 Joaquim v Adamson [2009] NSWLEC 1312 Reuben v Lace [2010] NSWLEC 1024). Yang v Scerri [2007] NSWLEC 592 Texts Cited: Nil Category: Principal judgment Parties: Frank Inzitari (First Applicant) Jodie Inzitari (Second Applicant) Suzanne Vautin (First Respondent) Fay Smith (Second Respondent) Representation: Applicants: Mr F Inzitari (Litigant in person) Respondents: Mrs A Vautin and Mrs F Smith (Litigants in person) File Number(s): 125240 of 2017 Publication restriction: No judgment 1. COMMISSIONER: The applicants are seeking orders for the removal of a Eucalypt growing on the respondents' Bowenfels property and close to the common boundary. They contend that the tree poses a risk of damage to their new dwelling. The applicants are also concerned that the tree is close to their children's bedrooms and should it fall in heavy wind, snow or rain, it could cause injury. In their application claim form, the applicants state that: "We get heavy strong southerly winds in our area, and because it is top heavy, and has already got dead branches, plus the fact that its roots on my property have been dug up due to a trench for my services." 1. The respondents reject these orders as they submit that the applicants own a large block of land and decided to place their new dwelling close to the tree. They contend that the tree has been there for decades and there was room on the applicants' block of land to locate their new dwelling further away from the tree. 2. The applicants' dwelling is in the final stages of construction with plans for occupation in the next week or so. 3. Because of their concerns, the applicants have applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) 2006 (Trees Act). 4. 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, the history of any failures, any other relevant evidence, and the circumstances of the site apparent at the time of the hearing. 2. Neither party engaged an arborist to provide independent expert opinion. The following observations are based on the arboricultural expertise I bring to the Court. 3. The tree is a mature Eucalypt. The applicants had a number of branches that were overhanging their property removed. Despite a heavy infestation of mistletoe and a large bark wound on the stem closest to the applicants' property, the canopy of the tree appears healthy. I saw very little dead wood in the canopy, none of which was overhanging the applicants' property. The tree has co-dominant stems with some included bark; the weakest stem is angled over the respondents' property. The weight of the canopy is biased towards the respondents' property. Very little of the canopy overhangs the applicants' property. 4. At the on-site hearing, the first applicant, Mr Inzitari, stated that a trench had been dug within 300mm of the common side boundary and to a depth of about 600mm. While there was some confusion as to whether or not electrical services had been installed in the trench or installed elsewhere, Mr Inzitari confirmed that he had dug a trench along the boundary. Mr Inzitari stated that it was his right to be able to excavate to install services on his land. 5. I observed the ground level on the applicants' side of the fence to be about 300mm lower than the soil level on the respondents' property. The soil has been disturbed and regraded and is consistent with the construction of the house. 6. The tree has not caused any damage to the applicants' dwelling. I saw nothing about the tree that would lead me to conclude that the tree is, or is likely in the near future to cause, damage to the applicants' property or any injury to anyone on the applicants' property. However, s 10(2)(b) is not limited to risk of injury to anyone on an applicant's property, it is broader in its application (see Reuben v Lace [2010] NSWLEC 1024). 7. Again, with the arboricultural expertise I bring to the Court, I am sufficiently concerned that the excavation along the boundary line and close to the tree will have caused damage to structural roots. I have concluded that this root damage combined with the weight bias towards the respondents' property, could lead to the reasonably foreseeable failure of the tree onto the respondents' property. The tree has the potential to fall onto raised garden beds and onto a section of backyard with play equipment that is clearly used by young children. While the co-dominant stems with included bark are a form of structural defect, the attachment appeared stable and at less risk of failure. 8. Therefore, I am satisfied that the Court's jurisdiction to make orders under s 9 of the Trees Act is engaged. 9. In the making of orders, the Court must consider relevant matters under s 12 of the Trees Act. Of these, s 12(h) and (i) are most applicable; that is, the actions of the parties. 10. The tree is within a metre of the boundary and was clearly present when the applicants planned and constructed their dwelling. Mr Inzitari trenched along the boundary and has caused damage to the respondents' tree. 11. It is open for the Court to make any orders it thinks fit in the circumstances. In a number of other matters, where an applicant has been found to be the cause of the decline of, or damage to, a tree which has resulted in it becoming hazardous, the Court has ordered the applicant to pay for the removal of the tree, and where relevant, for its replacement (see Freeman v Dillon [2012] NSWLEC 1057 and Joaquim v Adamson [2009] NSWLEC 1312). 12. The respondents were given the option of retaining the tree or having it removed and replaced by the applicant. After some discussion, the respondents determined that the tree should be removed. 13. The respondents expressed a concern as to whether the work would be carried out in a timely manner. Section 15 of the Trees Act considers failure to comply with Court orders. Further information is included on the Land and Environment Court website. 14. Having considered the evidence and circumstances of the matter before me, the Orders of the Court are: 1. Within 60 days of the date of these orders, the applicants are to engage and pay for an arborist with a minimum qualification of AQF level 3 in Arboriculture, and appropriate insurance cover, to remove the Eucalypt tree to ground level and to grind the stump and main roots to a depth of at least 200mm. All debris, including grindings, is to be removed from the respondents' property and the site levelled. 2. The work in (1) is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry or its equivalent. 3. Within 30 days of the date of these orders the respondents are to provide the applicants with the botanical and common name of a replacement tree. The information is to be sent to both the applicants' postal address, as provided on the Tree Dispute Application, and hand delivered to their residential letterbox. 4. The applicants are to purchase a replacement tree of the species specified by the respondents. The replacement is to have a container volume of at least 100 litres and be grown in accordance with AS 2303-2015: Tree stock for landscape use; specifically: have no girdling roots in any part of the rootball, have no co-dominant stems, be of good health and vigour, and be true to type. 5. The applicants are to engage and pay for a qualified horticulturalist or landscaper to plant the replacement tree in a location specified by the respondents but no closer than 1.5m from the common boundary. 6. The tree is to be installed within 30 days of the removal of the Eucalypt. 7. The respondents are to provide all reasonable access on reasonable notice for the purpose of quoting and the carrying out of the works in orders (1) and (5). ______________________ 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: 03 August 2017