Land and Environment Court New South Wales Medium Neutral Citation: Hutchison v White [2018] NSWLEC 1594 Hearing dates: 23 October 2018 Date of orders: 25 October 2018 Decision date: 25 October 2018 Jurisdiction: Class 2 Before: Galwey AC Decision: See orders at [15] Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to fence – risk of injury or damage – consent orders must be orders the Court would make Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW) Cases Cited: Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: Troy Hutchison (First Applicant) Krysten Hutchison (Second Applicant) Michael White (First Respondent) Lynette White (Second Respondent) Representation: Solicitors: P Crennan, Crennan Legal (Applicants) Other: M & L White, litigants in person (Respondents) File Number(s): 2018/200963 Publication restriction: No Judgment Background 1. Seven trees grow on the property of Lynette and Michael White ('the respondents') close to the common boundary they share with Troy and Krysten Hutchison ('the applicants'). A branch fell last year from one of the trees, damaging the Hutchisons' fence. They are concerned that other branches might fall onto their driveway, or the trees might fall and hit their dwelling. They asked the Whites to prune the trees, but when this was not done they applied to the Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) ('the Trees Act'), seeking orders for the trees to be removed. Their application sought no compensation for damage. 2. Prior to the hearing the parties submitted proposed consent orders for the removal of all seven trees. Nevertheless, the Court must be satisfied that those orders can be made within the jurisdiction of the Trees Act, and that they are orders the Court might make when all relevant matters are considered. 3. The onsite hearing proceeded as listed on 23 October, allowing me to observe the trees and their surroundings. I bring my own arboricultural expertise and experience to this decision. The trees 1. The seven trees are numbered in two reports by Mr Hugh Taylor, arborist, as follows: 1. Pine 2. Eucalypt 3. Pine 4. Pine 5. Pine 6. Pine 7. Eucalypt 1. According to Mr Taylor, these mature trees are 17–23 metres tall. Tree 7 is dead. Tree 3 has a sparse canopy and is declining. The other five trees appear relatively healthy, although with some (typical) amount of deadwood present in their canopies. Bifurcating stems of trees 2 and 6 show no signs of imminent failure. Mr Taylor is of the opinion that all five pine trees are declining due to Pine Blight. Apart from the sparse canopy of tree 3, there is no evidence onsite, nor within Mr Taylor's report, to support this. 2. The limb that damaged the Hutchisons' fence fell from tree 7, which is dead. 3. Mr Crennan, for the Hutchisons, submitted that Mr Taylor informed him verbally that Pine Blight would affect the remaining pines and they would deteriorate quickly. He says they are therefore likely to cause damage or injury in the near future. Findings 1. Each tree must individually meet the jurisdictional test at s 10(2) of the Trees Act: 10 Matters of which Court must be satisfied before making an order (1)… (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. Here, as in many similar cases decided by the Court since Yang v Scerri [2007] NSWLEC 592, I consider 'the near future' to be a period of 12 months. 2. Trees 1, 4, 5 and 6 are healthy pine trees with no apparent structural defects likely to result in branch, stem or root failure. They are unlikely to cause damage in the near future, or injury. They do not meet the test at s 10(2) of the Trees Act, so I cannot make orders for these trees. 3. Tree 2 is a Eucalypt with no apparent structural defects that are likely to result in damage in the near future, or injury, so no orders can be made for this tree. 4. Tree 3 has dead limbs and its crown is declining, such that more limbs will die in the near future. Dead limbs are likely to fall onto the fence or driveway and cause some damage. The tree will not recover and should be removed to prevent damage. 5. Tree 7 has damaged the applicants' wall adjacent to their driveway. Other limbs are likely to fall from that tree and may cause further damage. It is a dead tree without any apparent habitat hollows. I will order its removal to prevent further damage. Orders 1. Tree numbers in these orders correspond with those in Exhibits C and D. I will order the removal of trees 3 and 7, but not the remaining five trees. The Court notes the agreement between the parties regarding the removal of trees 1, 2, 4, 5 and 6. Based on the terms of that agreement, no orders are made here for pruning those five trees. No orders are required for grinding of stumps. 2. As a result of the foregoing, the orders of the Court are: 1. Within 90 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 all appropriate insurances to remove trees 3 and 7 to no more than 500 mm above ground level. 2. The works are to be done in accordance with the guidelines of the WorkCover NSW Code of Practice for the Amenity Tree Industry. 3. The respondents are to give the applicants seven days' notice of the works. 4. During reasonable hours of the day, the applicants are to allow all access necessary for works that can't be done from within the respondents' property. ____________________________ D Galwey Acting Commissioner of the Court ********** Amendments 19 November 2018 - Correction of typographical error in 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: 19 November 2018