Holborow v Measures

Land and Environment Court (NSW)|2012-04-26

Richard Measures Jennifer Measures (Respondents) File Number(s): 21243 of 2011

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1ACTING COMMISSIONER: Gilda Avenue in Wahroonga presents a landscape dominated by large native trees. Katherine Holborow has applied to the Court for the removal of a large gum tree (T1) on a neighbouring property and for the pruning of another large gum tree (T2) and two smaller trees (T3 and T4). She makes this application under the Trees (Disputes Between Neighbours) Act 2006, claiming that T1 has caused damage to their dwelling, that T1 and T2 are likely to cause damage or injury, and that T3 and T4 are likely to damage the dwelling. 2Mr and Mrs Measures, the owners of the tree and the respondents in this matter, don't wish to remove any of the trees but are willing to undertake pruning to make them safe. 3The onsite hearing began on the respondents' property. 4T1 is a tall Blue Gum that grows against the boundary fence. Although it has slightly displaced a section at the bottom of the fence, it clearly is situated principally on the respondents' land. 5The tree's crown is mostly over the applicant's property, with approximately 70% over their dwelling. The applicant submits that there is risk of limbs falling onto their dwelling due to the tree's crown structure. Several limbs grow from one point high on the stem, possibly where the stem broke many years ago. She submitted a letter from an arborist and the Council arborist's determination on a tree removal application, both showing that the tree has potentially poor structure that cannot necessarily be remedied by pruning. She states that limbs have fallen and damaged roofing tiles and guttering and that these have mostly been dead limbs, up to about 10 cm diameter. 6The respondents submit that the tree is structurally sound, arguing that it did not fail in the major storm around ten years ago that saw many trees in their street fail. 7T2 is a large Blue Gum at the rear of the respondents' property. Due to overshadowing from other trees it leans out over the applicant's property so that its entire crown is above her garden, much of it also above play equipment. It has some long overextended limbs and an unbalanced crown but is healthy. There is some deadwood present, no more than is typical for the species. The applicant contends that the tree poses a risk of injury and wants it pruned to remove deadwood and hazardous limbs. The respondents state that the tree is healthy. 8T3 is a camellia near the boundary. The ends of some small branches are almost touching the applicant's dwelling wall. The applicant wants this tree pruned clear of the building. However I cannot see that there is any possibility that the tree will cause damage in the near future, so this element of the application is dismissed. 9T4 is a 10 metre tall Flame Tree next to the boundary. The ends of some limbs are hitting the guttering of the applicant's dwelling. The applicant says this may cause damage in the near future, which I accept is possible. 10The respondents expressed both their desire to retain all their trees and their willingness to undertake pruning. 11The applicant also claims compensation for damage to the roof and costs for an arborist report and Court application fees. Commissioners cannot award costs so the applicant, if she wishes to pursue this, must file a Notice of Motion for that part to be heard by a judge.

History 12The Holborows have owned their property for around three years and lived there for approximately two years. In March 2010, while the property was rented out, they say a limb from T1 damaged roof tiles, causing the ceiling to become water damaged. They had this repaired and although they mentioned it to the respondents they did not ask them for compensation. However they now seek compensation for the $2,288 repair bill. 13The Holborows recently had repair works done to the roof following further damage to tiles. An itemised quote shows replacement of ten tiles costing $400, for which they also claim compensation. 14The Holborows attempted to undertake pruning of the trees when having other trees on their own property pruned. They did not organise access and the respondents requested that works be stopped. 15The Measures applied to Council for a permit for T1 to be removed, which Council granted. Although they got quotes for the work the tree was not removed as they claim they require access for a crane on the applicant's driveway.

Findings 16I find that T1 poses a risk of damage to the dwelling. Due to it structure, long live limbs over the dwelling may fail in the near future. The tree is unsuited to pruning as this would require removal of a significant portion of the crown and may lead to a higher risk of other limbs failing. The tree must be removed. I cannot see that a crane is required for removal of T1. Climbing arborists remove such trees on a regular basis. Access for a truck and chipper may be required through the applicant's property. 17Turning to T2, there is a risk that long limbs and deadwood may fall and cause damage or injury in the near future. This can be remedied by pruning some overextended limbs and removing deadwood. 18T4 can be pruned clear of the guttering to prevent damage.

Compensation 19In my view the Act exists to deal with disputes that parties have attempted to resolve but, for whatever reason, could not. It should not provide an opportunity for a party to ambush another with a compensation bill. Almost two years passed before the applicant presented the respondents with the repair bill when making this application. The applicant had prior opportunity to ask for compensation but did not. I therefore dismiss the application for compensation for the 2010 damage. 20The respondents were at least notified that their tree had dropped limbs and have not taken action to prevent further limb failures since then. The cost of damage that has occurred since then therefore falls to them and they will reimburse the applicant the $400 for tile replacement.

Orders 21Considering the foregoing, the orders of the Court are: (1)The respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF Level 3), with all appropriate insurances, to remove T1 to ground level. The work is not to be done by crane but by arborists accessing the tree using modern arboricultural climbing techniques. (2)The respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF Level 3), with all appropriate insurances, to prune T2 to remove the two low overextended limbs over the applicant's property, to remove all deadwood greater than 25 mm in diameter, and to reduce the remaining live crown by 15-20%. (3)All works in order (2) are to conform to AS4373 Pruning of Amenity Trees. (4)All works in orders (1) & (2) are to conform to the WorkCover NSW Code of Practice for the Amenity Tree Industry. (5)The works in orders (1) & (2) are to be completed within 60 days of the date of these orders. (6)The respondents are to provide the applicant with 3 working days notice of the works in orders (1) & (2). (7)The applicant is to provide all access required for the works in orders (1) & (2) to be completed efficiently, including access for a truck and chipper to their driveway if necessary, during reasonable hours. (8)The respondents are to prune T4 clear of the dwelling to provide clearance of at least one metre. (9)The applicant is to allow access for works in (8) to be done on reasonable notice during reasonable hours. (10)The respondents are to pay the applicant $400 within 14 days of the date of these orders. (11)Following removal of T1, the respondents are to engage a fencing contractor to reinstate the section of fence displaced by T1 within 90 days of the date of these orders. The applicant and the respondents are to each pay 50% of the cost of these works. Both parties are to provide access required for these works to be completed. D Galwey Acting 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: 27 April 2012

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