Aguis v Forrester

Aguis v Forrester [2007] NSWLEC 857 CASES CITED: P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128 Hornsby Shire Council v Malcolm (1968) 60 LGRA 429 Yang v Scerri [2007] NSWLEC 592

APPLICANT Mr M. Aguis, litigant in person LEGAL REPRESENTATIVES:

RESPONDENT Ms I. Forrester, litigant in person

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 ACTING COMMISSIONER: This application concerns a Lemon Scented Gum tree growing on the property at 42 Railway Terrace, Riverstone. The tree has previously been the subject of an application for pruning or removal and compensation (Aguis v Forrester [2007] NSWLEC 857) and an application for extension of time in which to appeal the decision in that case (Aguis v Forrester [2007] NSWLEC 857). Both those applications were dismissed.

2 Mr Aguis makes this application pursuant to s7 of the Trees (Disputes Between Neighbours) Act 2006 on the basis of new circumstances. Those circumstances are that the tree has dropped a large branch since the on-site hearing and determination of 5 December 2007.

3 He seeks orders from the Court to prevent any more damage to his property, or injury. He is not claiming any compensation.

4 The tree is growing in the north-eastern corner of the backyard of Mrs Forrester's property at 42 Railway Terrace, Riverstone, about 1.5 m from both the eastern and northern boundaries.

5 Mr Aguis is the owner of 51 Hunter Street, Riverstone. He bought that property as vacant land 20 years ago and constructed his house with extensive brick garage structures in the backyard. His property is separated from Mrs Forrester's by a narrow strip of land belonging to his neighbour, Mr Pollock who lives to his east in Regent Street. The strip of land is about 2.4 m wide. Mr Aguis has a gate opening onto the land, and says that he has an arrangement with the owner to have some use of the land. As in P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128, I have applied the decision of the Court of Appeal in Hornsby Shire Council v Malcolm (1968) 60 LGRA 429 to consider the properties of Mr Aguis and Mrs Forrester to be adjoining for the purposes of the Act even though there is a small strip of land separating them.

6 At the starting time for the hearing, Mrs Forrester was at home but not aware that the hearing was scheduled to take place. She was not willing to take part in the hearing with Mr Aguis, but agreed to my inspection of the tree from her property. The hearing proceeded on that basis, with me talking to both parties, but with no meeting or direct communication between the parties.

7 When assessing an application under the Trees (Disputes Between Neighbours) Act 2006 the Court must be satisfied that one or more of the four tests in s 10(2) (a) and (b) of the Act are met by the tree before making an order regarding that tree. These tests are: Has the tree caused damage to the applicant's property ? Is the tree now causing damage to the applicant's property ? Is the tree likely in the near future to cause damage to the applicant's property ? Is the tree likely to cause injury to any person?

8 Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of: Is the damage or risk sufficiently serious to warrant the Court intervening? If so, what should the Court order? Who should pay to carry out those orders? The tree 9 No arborist's reports regarding the tree were provided, and both parties say that they have not obtained any arborist's advice on the tree.

10 I observed the tree from the ground on both properties and the narrow strip of land, and also with binoculars from the roof terrace of Mr Aguis' home and from the roadway of Railway Terrace to the south-west and south-east of Mrs Forrester's property.

11 The tree is a Lemon Scented Gum (Corymbia citriodora) about 20 m tall with spread of about 12 m and trunk diameter of about 0.7 m. It has co-dominant trunks from about 2 m above ground. I could not see the entire base of the tree due to obstruction by shrubs, but I did not observe any indications of weakness in the lower trunk, or instability in the ground.

12 Mr Aguis pointed out the original points of attachment of the branches that fell in January 2007, July 2007 and February 2008. The trunk that grows northwards extending over the narrow strip of land is the source of all three of those branches. There is no information provided, and I did not see any evidence that any live branches have fallen from the southern trunk.

13 Mr Aguis' written submission states that the third branch fell on 11 February 2008 and that is confirmed by a written statement from Mr Pollock who provided detail that the branch was about 10 m long and 30 cm thick, and that it fell around 5 pm on a normal sunny day that was not windy. It was the lowest branch on the northern trunk. Mr Aguis' submission includes photographs of this third fallen branch. I note that in the photographs there is a strip of exposed dead wood along the top of the fallen branch, extending from the point of attachment for about 0.5 m to the edge of one photograph, and at what I estimate to be about 2 m from the point of attachment shown in another photograph.

14 Alerted by the deadwood seen on the photograph of the fallen branch, I made a careful examination of the tree through binoculars. That examination revealed that the next two higher branches on the northern trunk also have a strip of exposed dead wood on their upper surface. The two branches are each about 20 cm in diameter near their point of attachment, arising at about 8 m and 10 m respectively above ground.

15 The southern trunk and its branches are substantially over Mrs Forrester's property. There are two dead branches attached to this trunk, each about 3 m long and 70 mm thick. There is also a strip of exposed dead wood about 1 m long at the start of a secondary branch at about 8 m above ground. There are two small branches attached near this section of dead wood. These small branches have poor vigour with small, yellowish leaves. The ends of these two branches overhang Mr Aguis' property.

Damage 16 I am satisfied that the tree has caused damage to Mr Aguis' property, that being damage to a skylight, roof sheets, roof batten and inside light of his garage by a falling branch on 5 July 2007. That damage is mentioned in Mr Aguis' current application, was documented in detail in Mr Aguis' previous application, and is not contested by Mrs Forrester. On this basis I find that the tree meets the first test in s 10 2(a) of the Act as it has caused damage to Mr Aguis' property.

17 I note that the third branch, which fell on 11 February 2008, fell into Mrs Forrester's property and did not cause damage to Mr Aguis' property. That branch failure does not meet the first test in s 10 2(a) of the Act because it did not cause damage to Mr Aguis' property.

18 I consider that the failure of three live branches in the last two years, none of those being in storm conditions, provides a history that indicates further live branch failure is likely. However, I consider that the history alone does not necessarily indicate further live branch failure is likely in the near future. I consider it appropriate in this instance to adopt the guidance decision in Yang v Scerri [2007] NSWLEC 592 that, in general terms, the near future is a period not exceeding 12 months.

19 I consider that the exposed deadwood on the upper side of the largest failed branch is likely to have been a significant factor in the failure of that branch. On that basis I find that one or more of the other two large branches with similar exposed dead wood are also likely to fail in the near future. Also, on the same basis, I consider that the two smaller branches with poor vigour that arise near the dead wood on the southern trunk are likely to fail in the near future. I consider that failure of any of these branches may cause damage to Mr Aguis' property. On that basis I find that the tree meets the third test in s 10 2(a) of the Act, of being likely in the near future to cause damage to the applicant's property.

Injury 20 I have found above that failure of one or more of four branches on the tree is likely in the near future. I find it likely that the heavier parts of any of these branches would fall into the narrow strip of land between the two properties and into Mrs Forrester's backyard. I observed that there is a compost heap maintained on the strip of land. Also, Mr Aguis advised that he regularly uses that land, and intends to do more gardening there. I also observed that the backyard of Mrs Forrester's property near the back fence is used for fruit and vegetable growing. On that basis I find that people are likely to be in the area where a branch might fall, and as the last branch fell at around 5 pm on a normal summer day, people might be in the area when a branch falls.

21 For injury, the test in s 10(2) (b) of the Act is not restricted to the near future, it only need be likely, and may be injury to any person not only a person on the applicant's property. Considering the use of the land under the tree and the likelihood of branch failure, I find that the test in s 10(2) (b) of the Act is met.

Considerations 22 Before determining the application I am required to consider matters in s 12 of the Act.

23 Under s 12 (d) of the Act, I note the tree is not a species endemic to the local area, but it is likely to make some contribution to the provision of food and shelter for various fauna.

24 Under s 12 (e) of the Act, I find that the tree is a significant landscape element in Mrs Forrester's backyard and I note that she appreciates its appearance and its summer shade. Also, the tree is visible from surrounding properties and streets contributing to the sense of remnant forest in the general area.

25 Under s 12 (f) of the Act, I find that the tree provides intrinsic value through oxygen production, carbon sequestration, cooling summer shade and the likely reduction of high wind speeds near ground level.

26 Under s12 (h)(i) and s12 (i)(i) of the Act, I note that Mr Aguis' home, brick outbuildings and paved courtyard are likely to have covered a substantial part of the root system of the tree. I also note that Mr Aguis cut one root of the tree having a diameter of about 100 mm when he carried out the construction of his garage. I consider that his actions could have been avoided and are likely to have contributed to the decline of the tree.

27 Mr Aguis' exposure to injury is predominantly in his use of the narrow strip of land that is not his property, and I note his advice that he intends to use that land for gardening. I consider that gardening could have been catered for on his own land if he had retained some open space in his backyard, rather than building over and paving almost the entirety.

28 Under s 12 (j) of the Act, I note that Mr Aguis has stated that he would like the tree trunk growing towards his property removed, and I understand that he is willing to pay some of the cost of that work.

29 I note that both parties are pensioners, and both state that they would have difficulty paying for any tree work.

30 I am aware that the poor relationship between the neighbours makes it unlikely that they would reach any agreement about the sharing of costs of tree work, or the manner in which that work would be carried out. Conclusions 31 The tree has caused damage, and is also likely to cause damage in the near future and injury. Therefore the tree meets the first and third tests in s 10 2(a) of the Act and the test in s 10 2(b) of the Act.

32 Although the tree has some beneficial features, I find that intervention with it is necessary to manage the risk of damage and injury. As the northern trunk of the tree is the origin of the three fallen branches, and the location of the two large branches that now appear to present most risk, I find that the northern trunk should be removed. I also find that the two smaller branches in poor condition on the northern side of the southern trunk should also be pruned off. I do not consider that the remainder of the southern trunk and its branches need to be removed at this time as it does not have a history of branch failure.

33 I consider that Mr Aguis' actions of pruning a large root of the tree and building over almost the entirety of his backyard have contributed to the decline of the tree and increased his exposure to risk from the tree. For these reasons I consider that Mr Aguis should make a significant contribution to the cost of works ordered to the tree.

34 I consider that the tree work should be ordered in such a way that it can be arranged by Mrs Forrester without negotiation with Mr Aguis, and that payment should be made separately by each party. Also, I consider that the parties should have a somewhat extended time to complete the work in order for them to budget for payment, and in this regard I accept Mrs Forrester's opinion that the work could be completed by the end of February 2009. Orders 35 The Orders of the Court are: A. The application is upheld; B. 1) The northern trunk of the tree, and the two branches in poor condition on the southern trunk that are attached at about 8 m above ground, shall be pruned off by 28 February 2009; 2) The cost of the work shall be shared equally by Mr Aguis and Mrs Forrester; 3) The tree pruning shall be done by an arborist with AQF Level 3 qualifications and suitable insurances; 4) The tree pruning shall be done in accordance with AS 4373-2007 Pruning of Amenity Trees ; 5) The work shall be organised by Mrs Forrester who shall obtain three quotations and give a copy of those to Mr Aguis. She shall choose the cheapest of the quotations unless she has good reason not to do so; 6) The contractor shall invoice Mrs Forrester and Mr Aguis separately, each for half of the quoted cost of the work; 7) All tree debris from the work shall be removed through Mrs Forrester's property; 8) The contractor shall have access to Mr Aguis' property and to Mr Pollock's property for the purpose of the tree pruning and cleaning up work provided that access is on reasonable notice and at reasonable times, and that Mr Aguis and Mr Pollock may supervise that access of their own land.

      Peter Thyer
      Acting Commissioner of the Court
      The formal orders are not included as part of this judgment but a copy may be obtained from the Court's registry upon payment of a fee. Details are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/

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