Couto v Kiernicki

CASES CITED: Yang v Scerri [2007]NSWLEC 592 Nair v Edwards [2006] NSWSC 1310

APPLICANT Maria Paula Couto, litigant in person LEGAL REPRESENTATIVES:

RESPONDENT Henry Kiernicki, litigant in person

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

21144 of 2008 Couto v Kiernicki The extemporaneous decision was given on 10 December 2008. This written judgment includes relevant observations and background information.

JUDGMENT 1 ACTING COMMISSIONER: This application was made by Ms Couto, owner of 5 Emma Place, Ambarvale. The application concerns three trees situated in the backyard of 3 Emma Place, Ambarvale the adjoining property to the west owned by Mr Kiernicki. The trees are two small Blackbutt trees close to the common boundary beside Ms Couto's house, and a dead tree near the centre of the yard. 2 Mr Kiernicki has also made an application to the Court. That application, Number 08/21043 concerns trees situated on 5 Emma Place, Ambarvale. It was heard concurrently but is the subject of a separate Judgment.

3 Ms Couto has been living at her property since 1988. Mr Kiernicki has owned his property since 1994, has lived there in the past but currently has tenants in the property. 4 Ms Couto recently had the boundaries of her property surveyed and provided a copy of that survey by Apex Surveying dated 28 October 2008, at the hearing. The survey shows that the dividing fence beside her house is very close to the common boundary, so there is no question that the trees are situated on Mr Kiernicki's property.

5 Ms Couto made her application to rectify or prevent property damage, because of risk of injury to people, and to obtain compensation for damage to the roof of her house. The application sought orders for removal of all three trees. However, Ms Couto advised at the hearing that she no longer seeks removal of the Blackbutt identified as tree A, which overhangs her roof, but seeks pruning of that tree. 6 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 each 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? 7 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 trees and arboricultural report 8 A short arboricultural report by Allied Tree Consulting dated 3 November 2008 was included in Ms Couto's application. Mr Varley, the author of that report was present and provided helpful information at the hearing.

9 Adopting the tree identification used in the Allied Tree Consultancy arboricultural report, the trees are; A. Blackbutt ( Eucalyptus pilularis ) located about 1 m from the common boundary and nearest the back boundary. This tree is about 11 m tall with DBH 0.4 m. Mr Varley describes this tree in his report as having typical habit for the species and normal vigour. A branch from this tree broke and damaged a roof tile, the cause of Ms Couto's compensation claim. B. Blackbutt ( Eucalyptus pilularis ) located about 1.5 m from the common boundary and about 4 m north of tree A. This tree is about 9 m tall with DBH 0.15 m. It has been topped in the past at about 3m above ground, and the resulting growth is now about 7 m long. These branches have weak attachment and one has failed recently. I agree with Mr Varley that this tree will not form a sound specimen, and more branches will fail. C. Dead tree ( Eucalyptus sp .) located about 4 m from the common boundary and near the centre of the backyard. This tree is about 9 m tall with DBH 0.35 m. Parts of this tree have already broken off.

Findings Tree A 10 Tree A has caused damage to the roof of Ms Couto's house and therefore it meets the first test in s 10(2)(a) of the Act. Mr Varley noted in his report that the branch that caused the damage "failed due to the long, end weighted mass, relative to the small attachment point." 11 At the hearing Mr Varley identified two branches that he considered were likely to fail in the near future. I agree that the two branches are heavily end-weighted and find it likely that at least one will fail causing property damage in the near future. On that basis the tree meets the third test in s 10(2)(a) of the Act. In Yang v Scerri [2007]NSWLEC 592, the Court set out, for future consideration, a rule of thumb as to what might constitute the near future for the purposes of s 10(2)(a) of the Act. In that case, twelve months was adopted as an appropriate period. I also note that twelve months is a more generous period of time than was discussed in Nair v Edwards [2006] NSWSC 1310 (a tree nuisance case in the Supreme Court) where Windeyer J held that an appropriate period of time for future damage might be as short as six months. I find no reason to depart from those timeframes in this case.

12 I note that the roof damage was caused by a broken branch that speared into the tile adjacent the roof guttering. I find that a similar branch failure could result in a branch spearing onto the rear deck of Ms Couto's home, an area that she claims is used regularly. As Mr Varley has identified two further branches likely to fail in a similar manner, I find it likely that the tree will cause injury to people, and therefore meets the test in s 10(2)(b) of the Act. 13 As Mr Varley has recommended pruning of two branches to remove the risk of damage to property and injury, and Ms Couto now seeks that pruning rather than removal, I will order the pruning recommended by Mr Varley.

Tree B 14 I find on the basis of recent branch failure and the poor attachment of remaining branches, that tree B is likely to have further branch failure in the near future, and a falling branch is likely to damage the dividing fence or Ms Couto's house. Therefore this tree meets the third test in s 10(2)(a) of the Act. I agree with Mr Varley that all the large branches on this tree have poor attachment, and that it will not form a sound specimen. On that basis I will order removal of the tree.

Tree C 15 I observed that tree C has lost minor branches and find that it is likely to lose larger branches or collapse due to decay. Such failure is likely to cause injury to people on Ms Couto's or Mr Kiernicki's property. Therefore this tree meets the test in s 10(2)(b) of the Act, and I will order its removal.

Compensation 16 I have found that a branch of tree A caused damage to the roof of Ms Couto's house, and I find that she should be compensated for the repair of that damage. I note that her application includes an invoice for $88.00 for work carried out, and that the invoice includes a quotation for a further $154.00 to replace the tile with a new matching tile. I accept the total of $242.00 as a reasonable cost for the full repair, and will order that Mr Kiernicki pay compensation, capped at $242.00 after being given a copy of the receipt for full payment of the repair. The repair and payment by Ms Couto is to be completed by 31 March 2009 or the order for compensation will lapse. Orders 17 The application is upheld and orders will be made as follows: a. Tree A, the more southerly of the two Blackbutt trees near the common boundary between 5 Emma Place and 3 Emma Place, Ambarvale, shall be pruned by Mr Kiernicki at his cost, by 31 March 2009. The pruning shall be to substantially reduce the end weight of two branches on the eastern side of the tree. Those branches are the fifth lowest branch which is about 7 m long and 50 mm thick at its point of attachment, and the sixth lowest branch which is about 7 m long and 70 mm thick at its point of attachment; b. The pruning in a. above shall be done in accordance with the Australian Standard AS 4373-2007 Pruning of Amenity Trees; c. Tree B, the more northerly of the two Blackbutt trees near the common boundary shall be removed by Mr Kiernicki at his cost, by 31 March 2009; d. Tree C, the dead tree near the middle of the backyard shall be removed by Mr Kiernicki at his cost, by 31 March 2009; e. The work in a. above shall be carried out by an AQF Level 3 arborist, and the work in a., c. and d. above shall be carried out by a contractor with suitable insurances; f. The work shall take place at reasonable times, on reasonable notice. Ms Couto shall grant access over her property to carry out the work and may supervise activities on her property; g. Mr Kiernicki shall pay compensation capped at $242.00 within 30 days of being given a copy of the receipt for full payment of the completed roof repair. This order for compensation will lapse if the repair and payment by Ms Couto is not completed by 31 March 2009.

      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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