Land and Environment Court New South Wales Medium Neutral Citation: Bailey v Douglass [2018] NSWLEC 1061 Hearing dates: 14 February 2018 Date of orders: 14 February 2018 Decision date: 14 February 2018 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is upheld. See orders at paragraph 16. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage to property; fence; risk of injury; debris; orders for pruning and fence repair. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Hinde v Anderson and Anor [2009] NSWLEC 1148 Category: Principal judgment Parties: Peter Bailey (First Applicant) Jennifer Bailey (Second Applicant) Andrew Douglass (First Respondent) Donna Douglass (Second Respondent) Representation: Peter and Jennifer Bailey, litigants in person (Applicants) Andrew and Donna Douglass, litigants in person (Respondents) File Number(s): 325577 of 2017 Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. Background 1. The Douglasses ('the respondents') have a mature Camphor Laurel ('the tree') in the rear garden of their Waratah property. It grows against their steel-panel boundary fence, displacing part of the fence they share with their neighbours, the Baileys ('the applicants'). 2. The Baileys have lived here since 2000. They have noticed this shared fence being displaced by the tree. They say up to six of the roughly 2-metre panels are now out of alignment. They are also concerned about falling limbs, as the tree overhangs their garden by almost 10 metres. They are also concerned about debris in their gutters and the toxic effect this species has on the soil. They say many plants have died as a result and it is difficult to grow things here. 3. The Baileys have applied to the Court, pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 ('the Trees Act'), seeking orders for the Douglasses to remove the tree and replace the fence. The Baileys provided quotes for both tree removal and fence replacement. They also provided a report from Vivianne Bleiker, arboricultural consultant, that outlined these issues and recommended removal of the tree. 4. The Douglasses enjoy the benefits of their tree and would like to keep it. They say they offered to prune the tree when they heard the Baileys concerns, but have not carried out any works before finding out what might be ordered. They certainly expressed willingness to prune the tree at the onsite hearing. They provided a quote for removal of the tree and repair of the fence, and alternatively for pruning the tree and adjusting the fence so it is straight and allows for some stem growth. 5. The onsite hearing allowed me to view the situation. I bring my own expertise and experience to this matter. Findings 1. The tree appears healthy and structurally sound. It is approximately 14 metres tall and at fence height has three stems. The unions between these stems, as well as branch unions generally throughout the crown, appear sound. There are no major structural defects apparent from a ground-based inspection. 2. I do not accept many of the arborist's comments regarding tree structure. I did not observe that "Branching is largely acute and distal with areas of included bark with noticeable seams of separation." The report includes misinformation regarding who owns overhanging branches and what can be done with them. 3. The tree's weed status was discussed. Apparently it is not listed as a weed by Newcastle Council. 4. Despite this species' potential allelopathic effects I observed that many plants have successfully grown in the applicants' garden beneath the tree, including small trees such as frangipani, lilly pillies and a gum, along with many smaller plants. 5. A collected pile of small deadwood was shown to me. The crown retains some other small deadwood, mostly less than 50 mm in diameter, but I observed one dead branch around 100 mm over the applicants' garden. 6. There is debris in the applicants' roof guttering. Since Barker v Kyriakides [2007] NSWLEC 292 the Court has consistently found that it is reasonable to expect that such debris be removed as part of routine property maintenance. This is usually not a reason to interfere with a tree, and I see no reason to vary from this principle here. 7. Two panels of the fence are clearly displaced by the tree's stem. There is also a timber board at its base that surrounds the garden bed around the tree. Growth of the tree's root buttress is pushing this board against the base of the fence. Stem growth higher up is directly pushing the top of the fence out of alignment. At present the damage is relatively minor. I am not convinced that other panels are displaced by the tree. However, as I am satisfied that the tree has damaged the fence I can make orders pursuant to s 10(2)(a) of the Trees Act. 8. The fence's function is not affected at present, but further growth will increase its degree of displacement. I do not accept that the fence needs to be replaced. 9. The tree provides some environmental value, shading and cooling, and amenity to the property. Replacing the fence seems disproportionate to the degree of damage and to the tree's value. I prefer the alternative offered in the Douglasses' quote. This will deal with the tree–fence interaction for the foreseeable future as the tree is now growing slowly. Pruning the overhanging canopy back to the boundary is not a reasonable expectation. It would be prudent to remove deadwood and to reduce the longest branches to minimise the risk of limbs falling and causing injury to someone in the garden. 10. Should circumstances change, and should the Baileys find in future that the tree is causing further damage, they can of course reapply to the Court (see Hinde v Anderson and anor [2009] NSWLEC 1148). Orders 1. As a result of the above, the orders of the Court are: 1. Within 60 days of the date of these orders the respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3), with appropriate insurances, to prune the tree as follows: 1. remove deadwood greater than 50 mm in diameter from the tree's crown; and 2. reduce limbs over the applicant's property, especially those extending farthest from the tree's stem, removing no more than 10% of total crown mass. 1. The works are to be carried out in accordance with AS4373:2007 Pruning of amenity trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry. 2. Within 60 days of the date of these orders the respondents are to engage and pay for a suitably experienced contractor to repair the two panels of steel fence nearest the tree to restore them to vertical alignment, or as close to vertical alignment as is practical. This will require a cut-out or boxed section around the stem at the top of the fence. Along the top of the fence, at least 50 mm clearance to the stem must be provided to allow for some further growth of the stem. 3. The respondents are to give the applicants at least 7 days' notice of these works. 4. The applicants are to allow any access required for the works during reasonable hours of the day. ____________________________ D Galwey Acting Commissioner of the Court ********** Amendments 16 February 2018 - Correction to Case Name 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: 16 February 2018