Crosskill v Koster

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1COMMISSIONER: The applicant built her dwelling in Bellingen about 14 years ago. At the time an established Silk Floss Tree (Ceiba speciosa (syn. Chorisia speciosa)) was growing close to the common boundary - albeit smaller than its present size. 2The applicant has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the removal of the tree. While the orders were not stated in the application form, at the on-site hearing the applicant stated that she would be very disappointed if anything other than removal were to be ordered. 3The respondent, who purchased the adjoining property on which the tree is growing about five years ago, does not want the tree removed as it was one of his reasons for purchasing his property. 4In applications made under Part 2 of the Act the key jurisdictional test is found in s 10(2). This states that the Court must not make an order unless it is satisfied that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant's property or is likely to cause injury to any person. 5The 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...". 6In a guidance decision published in Yang v Scerri [2007] NSWLEC 592, as a rule of thumb, the 'near future' is deemed to be a period of 12 months from the date of the determination. In regards to injury, the Court considers the risk posed by a tree in the foreseeable future based on the characteristics of the tree/s, any history of previous failures and the circumstances of the site apparent at the time of the hearing. 7The applicant's principal contention is that branches falling from the tree could injure her or anyone else on her property. The applicant is also concerned that falling branches and other debris could damage her property. In support of her claim, the application includes photographs of fallen branches on various parts of her property including one branch across her compost bins; this branch broke the top rail. 8The branches shown in the photographs are dead however the applicant stated that over the years many green branches had also come down. 9Apart from falling branches, the applicant is concerned about the dropping of the abundant flowers produced by the tree and build-up of them on her roof, gutters and solar panels. She is also concerned about the fallout onto her deck and paving. In her application claim she states that a visitor slipped on the flowers and fell. 10The applicant included a one page letter from Mr Nick Jenkins of Valley Tree Service. Mr Jenkins does not provide his qualifications. Mr Jenkins inspected the tree on 7 August 2014. His letter states: This is a huge tree, the canopy of which extends over her property and house. There are many safety issues with this tree: included bark in the main fork, decay in the major limbs, large dead branches and broken, fractured and crossing limbs in the canopy. The potential for injury to persons and damage to the dwelling is high. 11Mr Jenkins makes no recommendations for the trees' management. Mr Jenkins did not attend the hearing. 12With the arboricultural expertise I bring to the Court, I observed the tree to be a large, mature and well-established specimen with a healthy canopy. I concur in part with Mr Jenkins' observations. The tree bifurcates at about 4m above ground. There appears to be some included bark between the stems but no signs to indicate likely/ imminent failure. Less than 5% of the canopy comprises dead wood - most of which are internal branches; in my opinion this is within a normal range. Some of the dead branches are in a state of advanced degradation and their failure in the near future is likely. 13There are several large stubs left by previous inexpert pruning. The most concerning of these defective branches overhang the applicant's property. Some of these support epicormic shoots with minimal attachment. It is clear from the ground that some of the previously lopped/shortened branches have decay and other forms of degradation of the wood. The branch shown fallen across the applicant's compost bin is consistent with being an epicormic shoot arising from one of these pruning wounds. 14On the basis of the evidence I am satisfied to the extent required by s 10(2) that dead wood falling from the tree could cause injury to any person on the applicant's property and could in the near future cause damage to her property. I am also satisfied that a branch from the tree caused damage, albeit minor, to the applicant's compost bin. I am also satisfied that damage or injury could arise from the failure of part or all of the defective/ previously lopped branches. 15Therefore as the jurisdictional test in s 10(2) is met, the Court's powers to make orders under s 9 of the Act are engaged. The making of orders requires consideration of relevant matters in s 12 of the Act. Relevant here are: