O'Brien v Butler

APPLICANT Mr and Mrs P. and L. O'Brien, litigants in person LEGAL REPRESENTATIVES:

RESPONDENT Mr N. Butler, agent

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 ACTING COMMISSIONER: Mr and Mrs O'Brien seek orders for removal of a Cypress tree, to avoid risk of injury to people and to rectify or prevent damage to their property at 21 Bellevue Avenue, Greenwich. The tree is situated in the south-eastern corner of the front yard of the adjoining property to the west, 23 Bellevue Avenue, Greenwich, owned by Mrs Butler. Mrs Butler is an elderly woman residing in a nursing home; she was represented by her son Noel Butler.

2 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 the 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?

3 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?

The tree 4 I observed the tree to be a Cypress of about 14 m height, 12 m spread and 1.5 m diameter containing the multiple trunks. Its age condition is early senescence, evidenced by the sag of a large northerly growing branch above the common boundary, and opening of the top of the canopy. The O'Briens informed me that the sagging branch above the common boundary has increased its lean by about 30 degrees in the last 2 - 3 years. Damage 5 Mr and Mrs O'Brien have shown me damage that they think is caused by roots of the tree. That damage is movement and cracks in their front brick boundary retaining wall, and cracks in the front room of their house.

6 The front boundary wall is located on the uphill side of the tree and the section closest the tree is leaning down the hill towards the tree. The eastern section of the O'Briens' fence appears unmoved. The front retaining walls of the Butlers' property and the adjacent property to their west are also leaning down the hill. The O'Briens advised at the hearing that they had not dug or investigated to find if tree roots were causing the damage to their wall. In my experience it is normal for a wall affected by tree roots to be lifted or to lean away from the offending tree. As the observed damage is that the wall is subsiding and leaning towards the tree, and other nearby walls are also subsiding down the slope, I do not find it likely that the Cypress tree is causing the damage. On that basis I find that the observed damage does not meet the tests in s 10(2) (a) of the Act.

7 At the hearing we observed cracks in the internal walls of the O'Briens front room, that room being closest to the tree. They advised that the cracks in the front room have only shown in the last few years and open more in dry conditions. They also advised that there are some cracks in the walls of other rooms. They have not provided any expert evidence on the cause of cracking or damage. The O'Briens had landscaping, wall building and paving work done in their front yard in 1998. Given the likely contribution of the slope of the land, the agreement of both parties that there is some type of clay on the site, and the landscaping works carried out, I do not find it likely that tree roots are the cause of the damage shown, nor that tree roots are likely to cause damage in the near future. On that basis I find that the observed damage does not meet the tests in s 10(2) (a) of the Act.

8 It is my opinion that if the sagging branch is not removed it is likely to fall and cause damage to the boundary fence and the O'Briens' garden in the near future. That likelihood of damage satisfies the third test in s 10(2) (a) of the Act.

9 With regard to the whole tree, I consider that it has entered a stage where it presents an unpredictable risk that large trunks may collapse in windy conditions even though they have not shown signs of sagging. Such collapse is however, in my opinion, not likely to occur and cause damage to the O'Briens' property in the near future. On that basis I find that the whole tree does not meet the third test in s 10(2) (a) of the Act. Likelihood of injury 10 I have described the unpredictable risk of collapse of large trunks now that the tree has entered senescence. For injury, the test in s 10(2) (b) of the Act is not restricted to the near future, it only need be likely, and may be injury to any person not only a person on the O'Briens' property. As a large trunk may fall onto the O'Brien or Butler property, or onto the public footpath and street, possibly bringing down the mains powerlines, I find that injury is likely and the test in s 10(2) (b) of the Act is met. Considerations 11 Before determining the application I am required to consider matters in s 12 of the Act.

12 Under s 12 (c) of the Act, I recognise Mr Butler's comments about the importance of the tree to his family, and that it is the remaining of two similar trees that were planted when his parents moved into the property about 50 years ago.

13 Under s 12 (d) of the Act, I find that the tree is likely to contribute to the local ecosystem and biodiversity by providing food and shelter for various fauna.

14 Under s 12 (e) of the Act, I find that the tree is a significant landscape element in the Butlers' front yard, and also provides screening from the street. Also, the tree is visible from surrounding properties and for some distance along the street, contributing to the attractive garden character of the local area.

15 Under s 12 (f) of the Act, I find that the tree provides intrinsic value through oxygen production, carbon sequestration, and likely reduction of local wind speeds due to its location near the top of the Gore Hill ridge.

16 Under s 12 (g) of the Act, I find that the tree contributes to soil stability, reducing the general downhill creep of the soil, and seems to be supporting the front boundary retaining wall of the Butler property and possibly the O'Brien property.

17 Under s 12 (g) (ii) and s 12 (i) (ii) of the Act, I accept Mr Butler's advice that he is willing to prune off the northern, sagged branch before it collapses, and other branches when required. I note however that he has not pruned that branch to date, despite approaches from the O'Briens stating their concerns about the tree. I also note that Mr Butler has not obtained any professional advice regarding management of the tree, and seems reluctant both to have any work done and to pay for any work on the tree.

18 Under s 12 (j) of the Act, I note that Mr Butler has stated in his written submission that he is willing for the tree to be removed at the O'Briens' cost, and at the hearing he stated that if the tree must go, the O'Briens should pay half. I also note that at the hearing the O'Briens offered to contribute 20% to the cost of tree removal. Conclusion 19 Although the tree has beneficial features and significance to Mr Butler's family, I find that it has entered senescence and presents a risk of damage and injury.

20 I have noted Mr Butler's stated willingness to prune the tree, and also the fact that he has not actually carried out any of the pruning requested by the O'Briens. I have also noted Mr Butler's reluctance to remove the tree himself, and his willingness for it to be removed at full or half cost by the O'Briens. Based on his past lack of action regarding the tree and his wishes expressed at the hearing to retain the tree, I am not confident that Mr Butler would carry out management and pruning in the future to avoid damage and injury.

21 The O'Briens deserve certainty that the observed risks presented by the tree will be managed, and I believe those risks will only be properly managed by removal of the tree. On that basis I find the O'Briens' application is upheld, and will issue orders for removal of the tree. Orders 22 The Orders of the Court are: A. The application is upheld; B. 1) Mrs Butler shall remove the Cypress tree by 15 January 2009, at her cost, with a 20% contribution from the O'Briens. The O'Briens' contribution shall be capped at $600; 2) The O'Briens shall pay the lesser of $600 and 20% of the receipted cost of the completed works, to Mrs Butler within 30 days of being given a copy of the receipt for those works; 3) The tree removal shall be done by an arborist with AQF Level 3 qualifications and suitable insurances; 4) All tree debris from the work shall be removed from the O'Briens' property at Mrs Butler's cost, as part of the tree removal; 5) The O'Briens shall permit access to their property for the purpose of the tree removal and cleaning up provided that access is on notice of at least seven days, and the work occurs on normal working days between 7.00 am - 6.00 pm Monday to Friday and 7.00 am - 1.00 pm Saturday, and the O'Briens are able to supervise that access.

      Peter Thyer
      Acting Commissioner of the Court
      The formal orders are not included as part of this judgment but a copy may be obtained from the Court's registry upon payment of a fee. Details are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/

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