Tadros v Alexander

Yang v Scerri [2007] NSWLEC 592 CASES CITED: Black v Johnson (No 2) [2007] NSWLEC 513 Barker v Kyriakides [2007] NSWLEC 292

APPLICANT Mr G. Tadros [litigant in person] LEGAL REPRESENTATIVES:

RESPONDENTS Mr G. and Mrs M Alexander [litigants 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 s7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a child care centre in Scott Street Mortdale against the owners of three trees growing in an adjoining property. 2 The applicant is asking the Court to order the removal of all overhanging branches to within the respondents' property as he contends that branches falling from the trees pose a risk of injury to the children who visit the centre or could cause damage his property. 3 The risk of damage is the blocking of gutters due to the build up of leaf litter and other debris on the part of his roof located beneath the trees. 4 The risk of injury is said to be mainly from the potential failure of old epicormic branches arising from an old pruning cut on one of the trees. This concern arises from an arborist's report commissioned by the applicant from Jackson's Nature Works in December 2009. 5 Under s 10(2) of the Act, the Court must not make an order unless it is satisfied that any of the trees subject to the application, has caused, is causing, or is likely in the near future cause, damage to the applicant's property or is likely to cause injury to any person. These tests must be applied to each of the three trees. 6 As an element of the application relates to future damage, the Court has regularly referred to the guidance decision given in Yang v Scerri [2007] NSWLEC 592. As a rule of thumb, the near future is a period of 12 months from the date of the determination.

7 Tree 1 is a Eucalyptus paniculata (Grey Ironbark). This is a healthy, mature specimen that is likely to be a remnant of the original Sydney Turpentine Ironbark Forest as other representative species are growing in close proximity. It is located in the rear eastern corner of the respondents' property. There is less that 5% dead wood throughout the canopy. 8 The section of this tree of most concern to the applicant is a large branch (representing about 20% of the canopy) that grows over the north-western corner of the applicant's property. Part of this area is occupied by a locked area in which toys are stored and air conditioning units are located. Between this area and the two boundary fences is a relatively small area covered in artificial grass that is used as an outdoor play area. 9 According to the respondents, a section of this branch was pruned in 1991, some 19 years ago. It appears epicormic shoots developed from the cut ends of two closely growing branches. Those shoots have subsequently developed into substantial branches that appear and function as normal branches. It is these branches that the arborist identified as being ones that could fail. 10 The arborist does not substantiate his opinion in any detailed way. I viewed this section of the tree with the aid of binoculars. The difference in diameter between the branches in question and the sections from which they arise is not significantly different. There were no signs to suggest the likely failure of these branches and there was no evidence of any previous failure of branches from this point. 11 The applicant showed me the build up of debris on the flat section of roof adjacent to this tree. He stated that the build up had occurred over the past 7 months. The applicant stated that every 6-8 weeks dead branches fall from the tree and small live parts fall every 3-4 weeks. The majority of the branches on the roof were clearly dead when they fell given the extent of the deterioration of the wood. There were small twigs of less than 5 mm in diameter and less than 1 m in length that had the remains of leaves and fruits attached. It is assumed that these were alive when they fell. There was no fresh material on the roof. 12 Returning to s 10(2), there is no evidence that this tree has caused damage to the applicant's property however there is some dead wood that overhangs areas used by children and others. As the failure of dead wood is predictable it could cause injury to any person. Therefore as one of the tests under s 10(2) is satisfied, the jurisdiction is enlivened with respect to this tree and the Court may make an order. 13 However, before making an Order the Court must also consider a number of matters under s 12 of the Act. The relevant clauses in this case are; (a) The tree is wholly located on the respondents' property. (c&d) The tree is a remnant of an Endangered Ecological Community - Sydney Turpentine Ironbark Forest listed in Schedule 1 of the Threatened Species Conservation Act 1995 and in the Commonwealth Environmental Protection and Biodiversity Conservation Act 1999 as a nationally threatened ecological community. Therefore this tree has scientific value and contributes to the local ecosystem and to biodiversity. (e&f) The tree contributes to the scenic value of the land on which it is growing and to the locality. As the canopy of this tree, and the others growing nearby, can be seen from surrounding streets and because of its ecological value, the tree has intrinsic value to public amenity. (i)(i) Any act or omission by either party. This is discussed below.

14 The applicant has owned his property for 20 months, presumably since he developed the site as a child-care centre. The applicant's land is a large 'L'-shaped block. The trees were clearly there when the building and play areas were designed and then constructed. Whilst part of the area beneath the tree's canopy is out of bounds for children, a relatively small section of play area is located beneath the canopy. The majority of the play area is to the east and south-east of the tree. 15 In a tree dispute principle published in Black v Johnson (No 2) [2007] NSWLEC 513 at para 15, (and available on the Court's web site) the Court determined

The existence of a tree prior to the construction of a structure which has subsequently been damaged by the tree is not a matter likely to be taken into consideration on the question of whether or not some order should be made for interference with or removal of that tree or other remedial work. On that question, the seriousness of the damage and any attendant risks are the primary matters for consideration.

If interference with or removal of the tree or other work is warranted because of the extent of the damage the tree has caused or risks now posed by the damage, the fact that the tree was already growing in the vicinity at the time the structure was built is a matter which may be relevant and appropriate to take into account on the question of who should undertake any work and/or apportionment of the cost of such work.

However, it will also be relevant to consider whether or not the tree was self-sown or was planted. If it was planted, consideration will need to be given to the appropriateness or otherwise of:

the type of tree planted; and the suitability of the location in which it has been planted.

Equally, it will be relevant to consider whether the choice of location for the structure was unnecessary or avoidable or, on the other hand, if it would have been an unreasonable constraint on the development potential of the site had the existence of the tree limited that potential.

16 In this matter, the issue is potential injury rather than damage and I consider the principle to be relevant. It would seem that it would not have been unreasonable to design the applicant's premises to accommodate the tree or to now manage the area beneath the tree in a manner that minimises the risk of injury to children and other users of the site. The applicant will be ordered to contribute to the cost of pruning. 17 If I am wrong on the jurisdictional test with respect to future damage to property caused by the build up of leaves, the Court has consistently applied the tree dispute principle published in Barker v Kyriakides [2007] NSWLEC 292. In this principle it is considered that 'For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis'.

18 It further states that 'The dropping of leaves, flowers, fruits, seeds or small elements of dead wood, by urban trees, will not ordinarily provide the basis for ordering removal of or intervention with a tree'. The applicant stated that he has had the roof cleared only twice in 20 months. In this matter there are no exceptional circumstances that would lead me to depart from the principle in Barker v Kyriakides and no order will be made with respect to the falling of leaves and other debris from this tree. 19 Section 9 of the Act empowers the Court to make any such orders as it thinks fit to remedy, restrain or prevent damage to property or to prevent injury to any person as a consequence of the tree subject to the application. There is a degree of discretion in what the Court may order. 20 In this matter, the applicant seeks the removal of what amounts to about 25% of the tree. I consider this to be disproportionate to the risk. The material most likely to fail, and supported by the evidence of the debris on the roof, is dead wood. Therefore an order will be made for the removal of dead wood only. 21 Tree 2, incorrectly identified by the arborist as a Melaleuca armillaris is probably Melaleuca decora or Melaleuca linariifolia. (M. decora is a component of the Sydney Turpentine Ironbark Forest however, it is possible that the tree was planted.) This is a small tree that overhangs part of the applicant's roof by about 1 m. 22 The applicant states that the leaves from the tree block the gutter. For the reasons given for tree 1 with respect to the cleaning of gutters and the tree dispute principle in Barker v Kyriakides, no order will be made for any intervention with this tree and this element of the application is dismissed. 23 Tree 3 is a Syncarpia glomulifera (Turpentine) highly likely to be a remnant of the original Sydney Turpentine Ironbark Forest. This tree partly overhangs the applicant's roof. There are no obvious structural defects and the tree is healthy. There is no evidence that this tree has caused, is causing, or is likely in the near future to cause, damage to the applicant's property nor is it likely to cause injury to any person. As none of the tests under s 10(2) are satisfied with respect to this tree, the application to prune this tree is dismissed. 24 In conclusion, as a result of the forgoing, the Orders of the Court are: 1. The application to prune the trees is upheld in part. 2. The respondents are to engage and pay for an AQF level 3 arborist to remove all dead wood > 30 mm in diameter or more than 1 m in length from the Eucalyptus paniculata (Tree 1). 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 30 days of the date of these orders. 5. Should it be required, the applicant is to provide all reasonable access for the works to be completed in a safe and efficient manner. 6. The respondents are to give the applicant at least 2 working days notice of the commencement of the works. 7. The applicant is to pay the respondent 30% of the cost of the pruning within 21 days of the receipt of a tax invoice for the completed works. 8. Orders 2, 3, 5, 6 and 7 are to be carried out every two years within 14 days either side of the anniversary of the first pruning.

Judy Fakes Commissioner of the Court

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