Land and Environment Court New South Wales Medium Neutral Citation: Girgis & anor v Phipps [2017] NSWLEC 1412 Hearing dates: 3 August 2017 Date of orders: 03 August 2017 Decision date: 03 August 2017 Jurisdiction: Class 2 Before: Fakes AC Decision: See [15] Catchwords: TREES [NEIGHBOURS] Damage to property; risk of injury; sufficiency of evidence; tree was there first Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: Marlin & Yasser Girgis (Applicants) Cathy Phipps (Respondent) Representation: Applicants: Ms Y Girgis (Litigant in person) Respondent: Mr B Woolf (Solicitor) Solicitors: Woolf Associates, Solicitors File Number(s): 142949 of 2017 judgment 1. COMMISSIONER: The applicants have applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of an Ironbark growing on the respondent's Doonside property. 2. The applicants contend that branches falling from the tree have damaged an aerial, broken a window, cracked roof tiles and injured their son. They submit that dry branches continuously fall onto their dwelling. The applicants are concerned that as part of the canopy overhangs a recently constructed self-contained unit at the rear of their property, it could also cause further damage or injury. 3. Section 7 of the Trees Act enables an owner or occupier of land to apply to the Court for an order to remedy, restrain or prevent damage to property on an applicant's land, or to prevent injury to any person, as a consequence of a tree to which the Trees Act applies that is situated wholly or principally on adjoining land. 4. The tree in question is a mature Ironbark (probably Eucalyptus fibrosa), most likely a remnant of the original vegetation. The tree is growing across the rear boundary between the respondent's property and the property to the rear. I am satisfied that the base of the tree is principally on the respondent's land. As the parties' properties are adjoining, the tree is a tree to which the Trees Act applies. 5. 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, the history of any failures, any other relevant evidence, and the circumstances of the site apparent at the time of the hearing. 3. The applicants claim that branches falling from the tree have damaged various elements of their dwelling including a window, aerial and roof tiles. The applicants did not provide any photographic evidence in their application claim form (Exhibit A) or any physical evidence during the on-site hearing, to substantiate these claims of past damage. Similarly, there is no evidence of the injury allegedly sustained by their son. In her Statement (Exhibit 1), the respondent states that no mention had been made by the applicants to her of any injury to their son, only that a concern that the tree was interfering with television reception and that one day it might cause death or serious injury. 4. The respondent stated that she engaged Mr Fred Janes, a consulting arborist, to inspect the tree. He reportedly told the respondent that "The tree is in good health, growing straight with a stable junction and the most action that would be need to be taken would be trimming of some of the lower dead branches". When the Class 2 application was filed, the respondent attempted to re-engage Mr Janes but discovered that sadly, he is deceased. 5. With the arboricultural expertise I bring to the Court, I observed the tree to be healthy with some dead branches throughout the canopy. In my opinion, the amount of dead wood is within the normal expected range and not indicative of a tree in decline. The tree comprises two co-dominant stems with some included bark however I agree with the late Mr Janes that the attachment appears stable. 6. A portion of the canopy overhangs a small secondary dwelling that has been recently constructed at the rear of the applicants' property. According to the second applicant, the building is about 12 months old. 7. However, despite the actions of the applicants in locating the building under part of the tree, I am satisfied that there are a number of dead branches in the respondent's tree that will eventually fall onto that dwelling or onto the small area of private open space at the rear of that secondary dwelling. As this is predictable, and the size of the dead wood is such that it may cause damage or potentially injury, s 10(2) is satisfied. 8. I am not satisfied that the risk is such that it warrants removal of the tree. In considering relevant matters under s 12 of the Trees Act, I note the following. The tree is otherwise healthy and in good condition. It is valued by the respondent for its visual and general amenity. It can be seen from the street and thus contributes to public amenity. As a probable remnant of the original vegetation it will contribute to biodiversity and to the local ecosystem. The applicants have located a new building under an established tree. 9. The respondent stated that she would be prepared to have a qualified arborist assess the tree and remove any dead branches, or other branches recommended by the arborist for removal, every two years. These are the orders that I propose to make. 10. Therefore, on the evidence before me, the Orders of the Court are: 1. The application to remove the tree is dismissed. 2. Within 90 days of the date of these orders, the respondent 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 all dead wood down to 30mm in diameter at its base from all parts of the tree which overhang the applicants' property to a distance of 2m inside the respondent's property as well as any damaged branches back to a healthy lower lateral branch or stem. 3. The work in (2) is to be carried out in accordance with the WorkCover Code of Practice for the Amenity Tree Industry or its equivalent and all relevant sections of AS4373:2007 Pruning of Amenity Trees. 4. The applicants are 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 (2). 5. Every two years, within two weeks either side of the first pruning in 2017, the works in (2) are to be repeated. Orders (3) and (4) apply. This is to continue until such time as the tree is removed. _____________________ 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