Gant v Abreu and anor

CASES CITED: Robson v Leischke [2008] NSWLEC 152 Yang v Scerri [2007] NSWLEC 592

APPLICANTS Mr M Gant - solicitor Curtis Gant Irving Solicitors LEGAL REPRESENTATIVES:

RESPONDENTS Mr E Abreu - litigant in person Ms R Reynolds - litigant in person

JUDGMENT:

      THE LAND AND
      ENVIRONMENT COURT
      OF NEW SOUTH WALES

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Beecroft against the owners of trees growing on an adjoining property. 2 The applicants are seeking the removal of two trees and the pruning of another as they contend that the trees pose a risk of injury to people and could cause damage to their property. 3 The making of the application appears to have been stimulated by the failure of another tree, a Eucalyptus nicholii in February 2010. The failure of this tree resulted in damage to the applicants' property. That tree has been removed and is not subject to the application. 4 The three trees subject to this application are a Eucalyptus nicholii (Tree 1), a E. saligna (Tree 2) and another E. saligna (Tree 3). 5 Since the making of the application, the respondents applied for, and received, permission form Hornsby Council (the Council) to remove Trees 1 and 3. This has occurred and only Tree 2 remains to be considered by the Court. 6 Under s 10(2) of the Act, 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. 7 Tree 2 is identified in the application and in an arborist's report as a Eucalyptus saligna (Sydney Blue Gum) although it has bark characteristics more typical of E. pilularis (Blackbutt). As I was unable to collect any fruit from the tree in order to confirm its identify, it will be referred to simply as the tree. 8 The tree is a healthy mature specimen growing on the north-eastern side of the respondents' property. The size and probable species indicates that it is likely to be a remnant or progeny of the original plant community. The rear of both properties adjoin a recreation reserve that contains other mature indigenous trees. 9 The applicants contend that branches overhanging their property could cause damage or injury. 10 On the basis of the failure of the Eucalyptus nicholii referred to in para 3 of this judgement, the applicants engaged Mr Gatenby of Apex Tree and Garden Experts to inspect and report on their neighbours' trees. It is upon this report that the applicants rely. 11 Mr Gatenby inspected the trees on 24 February 2010. In oral evidence given by the applicants, the inspection was confined to what could be seen from the applicants' property. 12 There is no indication in the report as to whether or not binoculars were used. Mr Gatenby refers to "Visual Tree Assessment Techniques" but does not elaborate on the method. 13 In his report, Mr Gatenby states that This is a healthy specimen which has been pruned (incorrectly) in the past to reduce branches overhanging No. 29. Some of the longer pendulous branches are now overhanging the boundary by up to ~7 metres. These would generally be considered to be minor branches, however, reduction pruning of these branches to bring them back off the boundary is recommended while they are smaller and have suitable growth points to prune them back. What is of most concern with this tree is a large wound on the northern side of the main trunk at ~ 12 metres in height. This is a site of an incorrectly removed branch stub and there appears to be considerable decay around this area. It is probable that at this point on the tree has [sic] a large area of decay. Should decay occur in the trunk, failure would be more likely at this point than other parts of the tree. I recommend that this area [be] structurally assessed so that it is known whether the tree is able to be reasonably retained or not. There is a branch which has been affected by Bracket fungus at ~15 metres in height. This branch curves out to the south and has a wound ~ 2 metres long. It is likely that this branch will need to be removed in its entirety to prevent further spread of the decay into the tree. It would be in the interest of the neighbour to have this branch correctly removed as it is partially over his property and near to his house.

14 In his "Discussion" Mr Gatenby states Tree #2 has some structural anomalies which should be addressed. This includes removal of a large Bracket fungus affected branch up in the main canopy which overhangs both properties and the large wound near to mid point on the main trunk treated. This is also a safety issue that should be addressed as soon as possible. Reduction pruning of the larger branches overhanging No. 29 is also recommended to increase personal safety of [the applicants] who regularly use the area beneath these branches.

15 The report does not include any photographs or references to substantiate the author's opinions. Nor does it include conclusions or specific recommendations that would enable someone to undertake the works. 16 On 22 June 2010, in response to an application by the respondents to have the trees removed or pruned, the trees were inspected by Mr Foster, Tree Management Officer for Hornsby Council. 17 The council permitted the removal of trees 1 and 3 but refused the removal of tree2. Mr Foster permitted pruning by up to 15% of the foliage area and supported Mr Gatenby's recommendations for further assessment. 18 I inspected the tree from both properties. Binoculars were used to inspect the upper portions of the canopy. 19 What I observed is contrary to the observations made by Mr Gatenby. Specifically, Mr Gatenby states that the tree has been incorrectly pruned in the past. With the exception of some minor stubs (and a larger one close to the respondents' house, I saw no evidence of any incorrect pruning anywhere near the boundary with the applicants' property. 20 The pendulous branches are entirely normal and consistent with the growth habit of maturing eucalypts. Several of the ends of these lower pendulous branches have terminal dead wood. This is normal. The applicants stated that they had a tree removed from their property in 2004. It would seem that that tree was close to tree 2 and this might also account for some of the dead wood and the "spindly" habit of some of the branches. 21 I observed the old wound on the north-eastern side. I saw no signs such as fruiting bodies or superfluous wood that would lead me to conclude, as Mr Gatenby did, that there is "a large area of decay" associated with the old wound. I saw a portion of an old branch stub and evidence of old wound wood. 22 With respect to the higher branch with a "Bracket fungus"; no such fruiting body was seen. However, a large branch at that height and description was seen to be dead and located above the respondents' property. 23 The portion of the applicants' property overhung by the tree is a small paved area with an outdoor setting and a surrounding area of garden. The applicants stated that, due to its sunny position, they use this area on most days. 24 The applicants pointed out several dead branches that had fallen from the tree onto this area. I observed dead wood in some of the overhanging canopy. 25 When questioned, the applicants stated that no live branches had fallen from the tree. It is noted that the applicants have resided in their house for 46 years. 26 Returning to s 10(2). In Robson v Leischke [2008] NSWLEC 152 at 56, Preston CJ states that mere encroachment is not damage, and in 169 that damage must be proved.

27 In this matter there is no evidence that this tree has caused any damage to the applicants' property nor is it likely to cause damage in the near future. In a guidance decision published in Yang v Scerri [2007] NSWLEC 592, the Court has determined, as a rule of thumb, that 'the near future' is generally a period of 12 months from the date of the judgement. 28 However, given the frequent use of the area beneath the tree, the presence of dead wood in the overhanging portion of the tree and the predictability of the failure of dead wood, there is a possibility that injury could be caused by the failure of dead branches. 29 Section 10(2)(b) uses the words is likely to cause injury to any person. Of concern in this tree is the large dead limb in the upper part of the canopy referred to in para 22. This is of a size and in a location, that when it fails, it could cause injury to anyone on the respondents' property. 30 Therefore as one of the tests under s 10(2) is satisfied, the jurisdiction is enlivened and the Court may make an order. 31 Section 9 empowers the Court to make any such orders as it thinks fit to remedy, restrain or prevent injury (and or damage) that may arise from the tree subject to the application. There is no obligation on the Court to concur with the orders sought by an applicant or anticipated by another party. 32 Before determining an application, the Court must consider a number of issues under s 12 of the Act. The relevant clauses in this case are: (a) The tree is wholly located on the respondents' property. (d) Absent any evidence to the contrary, given the species and location of the tree, it is likely to be part of the critically endangered Blue Gum High Forest community as listed in the Threatened Species Conservation Act 1995 . As such it makes a significant contribution to the local ecosystem and to biodiversity. (e) It contributes to the scenic value of the land on which it is situated. (f) It has intrinsic value to public amenity through its ecological value and its size and prominence in the immediate locality. It forms part of the canopy that contributes to the landscape character of the Beecroft area. (h)&(i) Both the applicants and the respondents have taken steps to address the issues.

33 In conclusion, and based on the evidence before me, the only material likely to cause injury to any person is dead wood. I see no reason to order the removal of any live branches from this tree as suggested by Mr Gatenby and allowed by Hornsby Council. There is no proof that any live branch on the tree meets any of the tests under s 10(2) and therefore no Court order can be made with respect to live branches. 34 Similarly, I do not accept Mr Gatenby's unsubstantiated opinion that there is likely to be extensive decay in the trunk and, as such, no formal order will be made regarding further investigations. However, this does not prevent the respondents from doing this should they so wish. 35 As a result of the forgoing, the Orders of the Court are: 1. The application to prune overhanging branches from Tree 2 is upheld in part. 2. The respondents are to engage and pay for an AQF level 3 arborist to remove all dead wood > 40 mm in diameter from the tree. 3. This work is to be carried out in accordance with AS4373:2007 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry. 4. The work is to be completed within 60 days of the date of these orders. 5. Should it be required, the applicants are to provide all reasonable access for the works to be completed in a safe and efficient manner. 6. The respondents are to give the applicants at least 2 working days notice of the commencement of the works.

Judy Fakes Commissioner of the Court

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