Land and Environment Court New South Wales Medium Neutral Citation: Collins v Rice [2018] NSWLEC 1238 Hearing dates: 16 May 2018 Date of orders: 16 May 2018 Decision date: 16 May 2018 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is upheld – see orders at [12] Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to property – injury – tree with a history of falling limbs Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW) Cases Cited: Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: John Collins (First Applicant) Heather Collins (Second Applicant) Kath Rice (Respondent) Representation: J Collins and H Collins, litigants in person (Applicants) K Rice, litigant in person (Respondent) File Number(s): 14759 of 2018 Publication restriction: No Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. Background 1. Immediately behind the Lake Tabourie property of John Collins and Heather Collins ('the applicants') is a stand of native trees, mostly Bangalay (Eucalyptus botryoides). On four occasions since 2009 branches have fallen from one of the trees ('Tree 1') and damaged their clothesline, which has been replaced, and a vegetable garden. The most recent damage occurred in December 2017. The Collins are concerned that more limbs will fall from the tree, and are also concerned about a second tree ('Tree 2') that grows against the boundary fence and leans over their property. They have applied to the Court, pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) ('the Trees Act'), seeking orders for their neighbour Kath Rice ('the respondent') to remove both trees on the grounds that they are likely to cause damage and injury. They do not claim compensation. Framework of the Trees Act 1. If I am satisfied that the trees have caused, are causing, or are likely in the near future to cause, damage to the applicants' property (s 10(2) of the Trees Act), I have jurisdiction to make appropriate orders (s 9) after considering a range of matters set out at s 12. The orders may differ from those sought by the applicants. The trees 1. On the large neighbouring property belonging to Ms Rice ('the respondent'), a narrow stand of trees is adjacent to the common boundary shared with several residential allotments. These large, mature trees are 25—30 metres tall. The trees grow on an area of fill, according to Mr Collins, placed there when a dam, or lagoon, was excavated many years ago on Ms Rice's property. The ground appears stable. There are no signs that trees have fallen over and no signs of rootplate movement of the two trees that are the subjects of this application, even though they are at the edge of the stand. Tree 1 1. Tree 1 has a stem diameter of approximately 800 mm. At its base the stem is less than one metre from the boundary fence. Its foliage appears healthy but its crown has been weakened by previous limb failures. When one large limb failed, a significant amount of stem wood was torn out with the limb, leaving a large wound on the stem at a height of approximately 16 metres. This area of the stem is now structurally compromised. Most of the remaining crown is above this wound. Limbs of Tree 1 extend some 8 metres across the applicants' garden, above their vegetable garden and clothesline. Tree 2 1. Tree 2 grows against the boundary fence, which it has displaced slightly. Mr Collins says the displacement of this timber fence is not a huge concern. The tree has a stem diameter of around 500 mm. Smaller limbs have fallen from the tree, but it does not have a history of major limb failure. The stem leans slightly across the boundary, with part of its crown above the applicants' garden, although this area of the garden appears to be less frequently used than the area beneath Tree 1. Damage or injury 1. It is not disputed that Tree 1 has damaged the applicants' property. Ms Rice has, in the past, compensated the Collins for the cost of a new clothesline. On another occasion their insurer paid for its replacement. This enlivens the Court's jurisdiction at s 10(2) regarding Tree 1. 2. The history of Tree 1's limb failure suggests further such failures are likely. Ms Rice suggested the Collins could move their clothesline so that it would not be damaged in future. They have already moved it further from the tree when they replaced it. Bringing my own arboricultural expertise and experience, I find the greater risk with Tree 1 lies in its weakened stem where a large wound was left when a limb failed. Should the stem fail at that point, the crown above would be likely to strike the Collins' dwelling, depending on wind direction. Moving the clothesline wold not mitigate this risk. Pruning cannot sufficiently minimise the probability of failure, without removing so much of the crown that the tree is no longer viable. 3. Tree 2 has not caused damage. Despite its slight lean, I do not accept the Collins' submission that this tree is likely to fall over in the near future. In the context of the Trees Act, I consider the 'near future' to be a period of 12 months or so, since Yang v Scerri [2007] NSWLEC 592. Tree 2 has some long limbs extending above the applicants' property and some dead branches. These parts of the tree may fail and cause injury in the near future. Orders may therefore be made for Tree 2. Conclusions 1. With regard for the matters at s 12 of the Trees Act, both trees contribute to local amenity. They contribute to the local ecosystem and provide shading and cooling. Their removal would be unlikely to affect land stability. 2. Despite the trees' benefits, to mitigate the risk of damage or injury resulting from Tree 1, I see no alternative to its removal. This will not be a cheap process, so with regard for Ms Rice's financial situation I will allow more time than usual for the works. Considering the surrounding environment, it would be acceptable to leave a stump of five metres or so. 3. Removal of Tree 2 would be disproportionate to the risk it poses. Pruning can be reasonably undertaken at the same time that Tree 1 is being removed. Orders 1. As a result of the foregoing, the orders of the Court are: 1. The application is upheld. 2. Within 6 months of the date of these orders the respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3), with appropriate insurances, to remove Tree 1 down to a stump no taller than 5 metres. 3. Within 6 months of the date of these orders the respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3), with appropriate insurances, to prune Tree 2 as follows: 1. remove deadwood greater than 50 mm in diameter from the tree's crown where it is above the applicants'' property; and 2. reduce limbs over the applicants' property, especially those extending farthest from the tree's stem, removing no more than 20% of total crown mass. 1. The works in (3) are to be carried out in accordance with AS4373:2007 Pruning of amenity trees and the works in (2) and (3) are to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry. 2. The respondent is to give the applicants at least 7 days' notice of these works. 3. The applicants are to allow any access required for the works during reasonable hours of the day, including access for an EWP (cherry picker) should that be required. ____________________________ D Galwey 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: 21 May 2018