Mamtschak v Kramer

The applicant made a reasonable effort to reach agreement

1. Ms Mamtschak has written to and spoken with Mr Kramer, who has shown no signs of addressing her concerns. I am satisfied that Ms Mamtschak has made a reasonable effort to reach agreement with Mr Kramer, and has given the required notice of her application.

The applicant's reasons for wanting the tree removed

1. A large liquidambar or sweet gum (Liquidambar styraciflua) (the tree) grows in the front garden of Mr Kramer's property, a few metres from the common boundary. Ms Mamtschak has lived at her property since 1975. She knew Mr Kramer's mother, who had the tree pruned many years ago. Ms Mamtschak's reasons for wanting the tree removed are summarised below.
2. Ms Mamtschak submitted that the tree grew significantly after it was pruned and is now huge. The tree is to the west of Ms Mamtschak's front garden and northwest of her dwelling. Shade cast by the tree during the afternoon makes her garden and the front of her dwelling dark and damp. Moss grows on her lawn and mildew has appeared on her furniture.
3. Branches fell from the tree recently, pulling down service wires to both her dwelling and Mr Kramer's dwelling. The branches also damaged shrubs and other plants on her property.
4. Some 25 years ago Ms Mamtschak replaced her terracotta sewer pipes, which were damaged by tree roots. Ms Mamtschak submitted that the roots were from the liquidambar.
5. Ms Mamtschak's driveway was once concrete, but that was lifted and cracked by the roots, she submitted, so she replaced that with a driveway of pavers that can be more easily repaired. She has re-laid pavers to keep the driveway level and even.
6. The tree's fruit falls onto her driveway. Ms Mamtschak is worried that she may slip and fall, further injuring her back.

The respondent's submissions

1. Mr Mamari, as agent for Mr Kramer, submitted that the tree appears healthy. It has sentimental value as it was planted by Mr Kramer's father. It contributes to the leafy neighbourhood character. If its fallen foliage attracts a brush turkey, as submitted by Ms Mamtschak, that should be considered a benefit.

Findings

1. The liquidambar is a mature healthy tree, over 20 metres tall. After it was lopped many years ago, new branches of epicormic origin grew. They now form the relatively upright framework for the tree's crown. Several branches extending over Ms Mamtschak's property broke and fell recently. They appear to have been overextended, with most of their weight beyond the rest of the crown. A few similar branches remain, but otherwise the crown is relatively upright. Bringing my own arboricultural expertise to the matter, I find that the risk of further branch failures could be minimised by reducing overextended branches and removing deadwood, broken branches and branch stubs. Removing the tree would be disproportionate to the risk.
2. Ms Mamtschak's driveway appeared level and undamaged except in two areas at the front, adjacent to two cypress trees she planted within half a metre of the driveway, one on each side. The lifting of pavers is more likely to result from cypress roots than anything else.
3. Other issues raised by Ms Mamtschak could be addressed through property maintenance. Her own trees would contribute to shading of her lawn in winter. Moss and mildew could be managed with some maintenance such as cleaning or other treatment. Fruit could be swept off the driveway. I understand Ms Mamtschak's physical ability for some of this is limited, but she could engage someone to carry out property maintenance, as many people do. The tree dispute principle in Barker v Kyriakides [2007] NSWLEC 292 described the reasonable expectation for property maintenance for those living in treed urban environments. The principle was extended to include maintenance to prevent mould, slime and the like in Hendry v Olsson [2010] NSWLEC 1302.
4. I have considered the matters at s 12 of the Trees Act. The tree's benefits include ecosystem services such as cooling and shading, and its contribution to neighbourhood character and amenity. The risk of the tree causing further damage or injury can be managed through routine tree maintenance. For the reasons set out above, the Court will make orders for pruning the tree.

Orders

1. The Court orders: 1. The application is granted to the extent of the following orders. 2. The respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3), with all appropriate insurances, to carry out the following works within 30 days of the date of these orders: 1. prune the tree to remove all deadwood greater than 40 mm in diameter, remove broken and hanging branches, and prune broken branch stubs back to branch collars; 2. prune the tree to reduce branches over the applicant's property back to suitable lateral branches, removing no more than 15% of total live crown mass. 1. The works in Order (2) are to be done in accordance with AS4373-2007 Pruning of amenity trees and the Safe Work Australia, Guide to managing risks of tree trimming and removal work, 2016. 2. The respondent is to give the applicant 7 days' notice of the works in Order (2). 3. The applicant is to allow all access required for completion of the works in Order (2) during reasonable hours of the day. 4. The exhibits are retained.

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: 19 March 2024

1. At s 9 of the Trees Act, the Court has the power to make a broad range of orders as it sees fit to remedy, restrain or prevent damage to property or to prevent injury to a person. Before determining the application, the Court must consider the relevant matters at s 12 of the Trees Act.

The applicant made a reasonable effort to reach agreement

1. Ms Mamtschak has written to and spoken with Mr Kramer, who has shown no signs of addressing her concerns. I am satisfied that Ms Mamtschak has made a reasonable effort to reach agreement with Mr Kramer, and has given the required notice of her application.

The applicant's reasons for wanting the tree removed

1. A large liquidambar or sweet gum (Liquidambar styraciflua) (the tree) grows in the front garden of Mr Kramer's property, a few metres from the common boundary. Ms Mamtschak has lived at her property since 1975. She knew Mr Kramer's mother, who had the tree pruned many years ago. Ms Mamtschak's reasons for wanting the tree removed are summarised below.
2. Ms Mamtschak submitted that the tree grew significantly after it was pruned and is now huge. The tree is to the west of Ms Mamtschak's front garden and northwest of her dwelling. Shade cast by the tree during the afternoon makes her garden and the front of her dwelling dark and damp. Moss grows on her lawn and mildew has appeared on her furniture.
3. Branches fell from the tree recently, pulling down service wires to both her dwelling and Mr Kramer's dwelling. The branches also damaged shrubs and other plants on her property.
4. Some 25 years ago Ms Mamtschak replaced her terracotta sewer pipes, which were damaged by tree roots. Ms Mamtschak submitted that the roots were from the liquidambar.
5. Ms Mamtschak's driveway was once concrete, but that was lifted and cracked by the roots, she submitted, so she replaced that with a driveway of pavers that can be more easily repaired. She has re-laid pavers to keep the driveway level and even.
6. The tree's fruit falls onto her driveway. Ms Mamtschak is worried that she may slip and fall, further injuring her back.

1. Mr Mamari, as agent for Mr Kramer, submitted that the tree appears healthy. It has sentimental value as it was planted by Mr Kramer's father. It contributes to the leafy neighbourhood character. If its fallen foliage attracts a brush turkey, as submitted by Ms Mamtschak, that should be considered a benefit.

1. The liquidambar is a mature healthy tree, over 20 metres tall. After it was lopped many years ago, new branches of epicormic origin grew. They now form the relatively upright framework for the tree's crown. Several branches extending over Ms Mamtschak's property broke and fell recently. They appear to have been overextended, with most of their weight beyond the rest of the crown. A few similar branches remain, but otherwise the crown is relatively upright. Bringing my own arboricultural expertise to the matter, I find that the risk of further branch failures could be minimised by reducing overextended branches and removing deadwood, broken branches and branch stubs. Removing the tree would be disproportionate to the risk.
2. Ms Mamtschak's driveway appeared level and undamaged except in two areas at the front, adjacent to two cypress trees she planted within half a metre of the driveway, one on each side. The lifting of pavers is more likely to result from cypress roots than anything else.
3. Other issues raised by Ms Mamtschak could be addressed through property maintenance. Her own trees would contribute to shading of her lawn in winter. Moss and mildew could be managed with some maintenance such as cleaning or other treatment. Fruit could be swept off the driveway. I understand Ms Mamtschak's physical ability for some of this is limited, but she could engage someone to carry out property maintenance, as many people do. The tree dispute principle in Barker v Kyriakides [2007] NSWLEC 292 described the reasonable expectation for property maintenance for those living in treed urban environments. The principle was extended to include maintenance to prevent mould, slime and the like in Hendry v Olsson [2010] NSWLEC 1302.
4. I have considered the matters at s 12 of the Trees Act. The tree's benefits include ecosystem services such as cooling and shading, and its contribution to neighbourhood character and amenity. The risk of the tree causing further damage or injury can be managed through routine tree maintenance. For the reasons set out above, the Court will make orders for pruning the tree.

(1) The application is granted to the extent of the following orders.

(2) The respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3), with all appropriate insurances, to carry out the following works within 30 days of the date of these orders:

(a) prune the tree to remove all deadwood greater than 40 mm in diameter, remove broken and hanging branches, and prune broken branch stubs back to branch collars;

(b) prune the tree to reduce branches over the applicant's property back to suitable lateral branches, removing no more than 15% of total live crown mass.

(3) The works in Order (2) are to be done in accordance with AS4373-2007 Pruning of amenity trees and the Safe Work Australia, Guide to managing risks of tree trimming and removal work, 2016.

(4) The respondent is to give the applicant 7 days' notice of the works in Order (2).

(5) The applicant is to allow all access required for completion of the works in Order (2) during reasonable hours of the day.

(6) The exhibits are retained.