Jones v Stergakis

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

APPLICANT Mr A. and Mrs K. Jones, litigants in person LEGAL REPRESENTATIVES:

RESPONDENT Mr S. and Mrs C. Stergakis, litigants in person

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Andrew and Kelly Jones v Steve and Christine Stergakis

JUDGMENT The extemporaneous decision was given on 21 November 2008. This written judgment includes the findings given on-site and relevant observations and background information. 1 ACTING COMMISSIONER: Two Bangalay Gums grow near the back boundary of 24 Nadrian Close, Cardiff Heights. The property is owned by Mr and Mrs Stergakis who have lived there since 1995. They did not plant the trees, and say the trees are not much different now to what they were in 1995.

2 Mr and Mrs Jones bought the adjoining property to the west, 17 Dewrang Street, Cardiff Heights, in January 2008. That property has a swimming pool and garden area on the eastern side of the backyard, under the overhang of the Stergakis' trees. The trees have dropped about half a dozen live and dead branches into the Jones' property since February 2008. The largest branch was about 75 mm diameter. Mr and Mrs Jones say that three dead branches up to 50 mm diameter and 4.5 m long fell onto their property in the week and a half prior to the hearing.

3 Mr and Mrs Jones seek orders that the trees be trimmed by the owners so that falling limbs will not injure persons in the pool area or damage their house.

4 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?

5 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?

6 Further, before determining an application, the Court is to consider the matters in s 12 of the Act. The trees 7 The two trees are Bangalay Gums (Eucalyptus botryoides) located within 1 m of the common boundary, growing on separate terraces in the Stergakis' backyard. The tree on the lower terrace is about 15 m tall with a canopy spread of about 12 m and trunk diameter of about 0.6 m. The tree on the upper terrace is about 16 m tall with a canopy spread of about 15 m and trunk diameter of about 0.6 m.

8 Both trees appear to be healthy and stable in the ground, with well tapered branches and light canopy. I observed a large amount of dead wood in both trees, up to 100 mm diameter and 6 m long. I also observed some branch stubs with splintered ends that are likely the previous points of attachment of failed live branches. Both parties agreed that live and dead branches have fallen from the trees. Mr and Mrs Stergakis claim that live branches have only fallen in storm conditions, the largest being about 100 mm diameter that fell in the storms of June 2007. They also claim that dead wood that has fallen onto their property is up to 20 mm diameter but generally less than 10 mm diameter. Mr and Mrs Jones claim that a live branch about 75 mm diameter and dead branches up to 40 mm diameter have fallen between February and October this year. They showed me three dead branches that they say fell in the last week and a half; one 50 mm diameter and 4.5 m long, one 50 mm diameter and 1.5 m long, and one 30 mm diameter and 2 m long.

9 When the swimming pool was built on the Jones' property about eight years ago, Mr and Mrs Stergakis had the trees inspected by an arborist, and had the lower branches overhanging the Jones' property pruned off. The arborist told Mr and Mrs Stergakis that the trees were healthy at that time. Mr Stergakis pruned off some deadwood over his own property in January or February 2008.

10 Mr and Mrs Jones have not pruned the trees. They did make an application to Lake Macquarie City Council in July 2008. The trees were inspected by the Council, and consent was given for pruning of up to 15% of the live canopy of each tree.

Findings 11 Both trees have damaged the dividing fence and retaining wall built on the common boundary, and therefore both trees meet the first two tests in s 10(2)(a) of the Act. I note however that neither party is concerned about this damage.

12 None of the falling branches have caused any damage to the Jones' property and therefore neither tree meets the first two tests in s 10(2)(a) of the Act in that regard.

13 The canopy of both trees is some distance from the Jones' house, so I find that damage to the house is not likely in the near future, therefore neither tree meets the third test in s 10(2)(a) of the Act in that regard. 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.

14 Both trees have a recent history of dropping dead branches, and there are other and larger dead branches remaining in their canopies. I also note that the Jones intend to install a pool cover. On that basis I find it is likely that falling dead branches will damage the Jones' property in the near future, and therefore the trees meet the third test in s 10(2)(a) of the Act.

15 I find that the dead branches may fall in light wind or still conditions, and therefore injury to a person is likely as the area under the trees includes a swimming pool, paving and lawn, and the Jones and their extended family use these areas. Therefore both trees meet the test in s 10(2)(b) of the Act with regard to dead branches.

16 I find that live branches are only likely to fall from the trees in very windy or stormy weather. As it is unlikely that people would spend time under the trees in those conditions, I find that injury from falling live branches is not likely. Therefore the trees do not meet the test in s 10(2)(b) of the Act with regard to live branches. Considerations 17 Under s 12 (d) of the Act, I note that the Bangalay Gums are Australian native species that occur naturally in the local area and are likely to contribute to the local ecosystem. Mr and Mrs Stergakis state that many species of birds use the trees to feed and perch, and that the trees provide a wildlife corridor between the two nearby reserves. They also state that possums, flying foxes, owls, and other animals are reliant on the trees.

18 Under s 12 (e) of the Act, I note that the trees contribute to the scenic value of the Stergakis' property, and the surrounding local area.

19 Under s 12 (f) of the Act, I note that the trees provides intrinsic value through oxygen production, carbon sequestration, cooling summer shade, and deflection and dispersal of strong winds. I also note that the trees provide some privacy between the properties.

20 Under s 12 (g) of the Act, I note that although the trees have damaged the stone retaining wall on the common boundary, their roots are likely to stabilise the soil nearby. Conclusions 21 Neither party expressed concern about damage to the boundary fence or retaining wall, so I find no reason to order repairs to those items.

22 I found that falling deadwood from both trees is likely to cause damage in the near future and injury to persons, so I propose to order that the deadwood be pruned. Orders 23 The application is upheld in part, and orders will be made as follows: a. Dead wood overhanging the Jones' property and having a diameter of greater than 25 mm at its point of attachment shall be pruned from both the Bangalay Gum trees by 28 February 2009, and at periods of no more than five years thereafter; b. Mr and Mrs Stergakis shall pay the full cost of the pruning work and cleaning up; c. The pruning shall be carried out by an AQF Level 3 arborist with suitable insurances, and the work shall be in accordance with the Australian Standard AS 4373-2007 Pruning of Amenity Trees ; d. Pruned branches shall be removed through Mr and Mrs Stergakis' property; e. Mr and Mrs Jones shall grant access over their property to carry out the pruning work; f. The work shall take place at reasonable times, on reasonable notice, and the Jones may supervise the activities on their property; g. These orders do not prohibit additional pruning permitted by Lake Macquarie City Council of the trees by either party at their own cost.

      Peter Thyer
      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.