Burling v Nolan

Land and Environment Court (NSW)|2012-08-28|Before: Craig J

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1COMMISSIONER: This is an application made under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by the owner of a property in Greenwell Point against the owner of three trees growing on an adjoining property. 2The applicant is seeking orders for the removal of the three trees on the basis of preventing further damage or injury to existing elements of his property and potential damage to a fence he wishes to erect. He is also concerned about potential injury to anyone on his property from falling branches or indirectly by asbestos fibres that may be released if trees fail onto an adjoining fibro shed. 3The applicant is also seeking compensation for damage caused to the roof of his shed by a branch falling from one of the trees. 4The applicant was represented by a solicitor from the Shoalcoast Community Legal Centre. The respondent did not attend the hearing because of on-going medical treatment. I am satisfied that the respondent was fully aware of the proceedings and was afforded the opportunity to attend or appoint a representative. 5The three trees are located at the rear of the respondent's property close to the common boundary. The western-most tree, Tree 1, is a mature Grevillea robusta (Silky Oak), Tree 2 is a dead and disintegrating Quercus sp (Oak), and Tree 3 is a mature Cupressus macrocarpa cv (Monterey Cypress). 6In applications made under Part 2, a key jurisdictional test is s 10(2). This section states that the Court must not make an order under this part unless it is satisfied that any of the trees the subject of the application, have caused, are causing, or could in the near future cause, damage to the applicant's property or injury to any person. 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...". 7If any one of the tests in s 10(2) is satisfied for any of the trees the subject of the application, then the Court's powers under s 9 of the Act to make any orders it thinks fit to remedy, restrain or prevent damage or injury, are engaged. There is no obligation to make the orders desired by either of the parties. If no tests are met, then the Court cannot make any orders.

Tree 1 8According to the application and dated photographs tendered with the application, in 2008, a large live branch from the Silky Oak fell onto the roof of the applicant's shed. The damage included damage to the ridge capping, flashing, several sheets of corrugated iron roofing and one section of steel framing. A quote obtained at the time put the repair bill at $1660. 9According to the applicant, the respondent was approached to pay for the damage. The applicant contends that she referred it to her insurance company who then denied liability. This assertion could not be tested given the respondent's absence. However, regardless of what may have transpired between the respondent and her insurance company, no compensation was forthcoming and the shed, while functional, remains in a state of disrepair. 10With the expertise I bring to the Court, I observed the tree to be in average health but of poor form with several structural defects. The sites of previous branch failures were clearly seen. The tree is located in the south-western corner of the respondent's property. It overhangs three adjoining properties, including that of the applicant, as well as overhanging an old fibro shed on the respondent's property. 11I was shown two branches that the applicant stated had fallen from the tree onto his property in the past week. At least one of these branches appeared to have been detached and caught up in the tree and which subsequently fell to the ground. These branches were of a size that could cause damage or injury. 12I am satisfied on the evidence before me that this tree has caused damage to the applicant's property and could in the near future cause further damage to the applicant's shed or injury to any person on any of the adjoining properties. While I understand the applicant's concerns about any damage that may occur to the fibro shed on the respondent's property and the subsequent risk to health of asbestos fibres, the Court has no jurisdiction over damage to anything on the respondent's land. Similarly, the risk to health is from asbestos fibres and not from the tree. 13Therefore as s 10(2) is satisfied for this tree, the Court's powers to make orders under s 9 are engaged. Before determining what orders are appropriate, I must consider the relevant discretionary matters under s 12 of the Act. 14Relevantly while this tree may contribute to the scenic value of the respondent's property, and, when flowering, may contribute to biodiversity, its structural condition and form are such that, in my opinion, selective pruning will not be sufficient to limit the risk of further branch failures. In my view, the only practical option is the removal of the tree. 15Therefore, the application to remove Tree 1 is upheld. Given the proximity of the tree to the fibro shed, all care must be taken to avoid any damage to the shed and possible subsequent release of asbestos fibres.

Tree 2 16Tree 2 is in a state of advanced disintegration and further collapse is inevitable. A photograph taken on 5 September 2010 shows a large volume of dead wood that reportedly fell from this tree onto the applicant's driveway and a car parked there. While most of the tree would collapse onto the respondent's unoccupied property, there are some parts that could fall onto the applicant's property and cause damage or injury. 17Thus s 10(2) is satisfied for this tree. 18At the hearing, the applicant stated that some years ago a person carrying out garden maintenance on the respondent's property sprayed a herbicide along the boundary. In the applicant's view, the trees started to decline after this and few weeds have ever grown back. While this opinion cannot be tested, it is possible. However, whatever the cause of the decline, the tree is now dead and dangerous and its removal will be ordered.

Tree 3 19Tree 3 is a mature Monterey Cypress. Several large branches that were growing towards the applicant's property have been removed some time ago. The upper central portion of the canopy is dead but a reasonable portion of the canopy is still alive. I observed at least two snapped branches that are still attached to the tree but will inevitably fail. In my view the form of the tree makes it very susceptible to wind damage, particularly from northeasterly winds, winds the applicant says are frequently strong and which may last for several days. 20I am satisfied to the level required by s 10(2) that branches falling from this tree could cause damage to vehicles parked on the adjoining driveway or could cause injury to any person. Given the poor form and declining health of this tree, I am not satisfied that pruning is a practical option and orders will be made for the removal of the tree.

Future fence 21For completeness, I must consider the order the applicant seeks for removal of the trees on the basis of preventing damage to a fence he wishes to erect. Notwithstanding the fact that the trees have now been ordered for removal for other reasons, the Court has no jurisdiction to make orders for damage to property that does not yet exist; the property must be "on the land". This is discussed in Riachi v Kerslake [2010] NSWLEC 1153 and Holden v Smith [2011] NSWLEC 1066.

Compensation 22With respect to the compensation for the damaged shed, the Court has published a Tree Dispute Principle in Black v Johnson (No 2) [2007] NSWLEC 513 that considers whether the tree existed before the damaged structure was built and if apportionment of compensation is justified. 23While the applicant built the shed near the Silky Oak I am satisfied that the location and configuration of the shed is reasonable in the circumstances. However, given the damage occurred some four years ago, the cost of rectification will have increased. I have determined to peg the amount to be paid by the respondent at a maximum contribution of $1660.

Conclusions and orders 24I have considered the respondent's circumstances however the state of the trees, in particular Tree 2, is such that their removal cannot be deferred beyond the time period normally considered by the Court to be reasonable. 25Therefore the Orders of the Court are: (1)The application to remove the trees is upheld. (2)Within 40 days of the date of these orders the respondent is to engage and pay for an AQF level 3 arborist, with appropriate insurance cover, to remove the Silky Oak, dead Oak, and Monterey Cypress to a height of no more than 1.5m above ground. (3)The work is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry. (4)On two days notice, the applicant is to provide all reasonable access for the purpose of quoting and carrying out the work in a safe and efficient manner. If the applicant's property is used for access, any vehicle using is that property is limited to a single axle. (5)Within 60 days of the date of these orders, the applicant is to organise and pay for a suitable contractor to carry out the repairs to the shed roof. The work is to be the minimum required to rectify the damage. (6)The respondent is to reimburse the applicant for the work within 21 days of the receipt of an itemised tax invoice for the completed work. The respondent's contribution is capped at a maximum of $1660.

J Fakes 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: 29 August 2012

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