Umlil v Smith [2020] NSWLEC 1161 | Case summary

Land and Environment Court (NSW)|2020-03-19

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Background to the application

A mature Broad-leaved Paperbark (M. quinquenervia) ('the tree') grows on the boundary between two properties in Caringbah South, one belonging to the Umlils (Fouad Umlil is the applicant) and the other to the Smiths (Aurora and Neil Smith are the respondents). The Smiths have lived here for some 20 years. Their property is now on the market. The Umlils have lived here for about 18 months. The 2001 development consent for their dwelling required the garage to be set back sufficiently from the tree to allow for the tree's retention. A post-development inspection by an arborist found the tree had not been damaged by the works.
The Umlils have unsuccessfully tried to negotiate the tree's removal with the Smiths. The Umlils applied to Sutherland Council ('Council') for permission to remove the tree. Council approved the tree's removal for the following reasons: "its proximity to a dwelling (less than 3 metres), works required for building clearance, and public safety". However the Smiths would need to consent to tree removal, as it is a boundary tree with ownership shared by the parties. Mr Umlil has applied to the Court, pursuant to s 7 of the Trees (Disputes Between Neighbours Act) 2006 (NSW) ('the Trees Act'), seeking orders for the tree to be removed, with costs shared by the parties. The Umlils want the tree removed for the following reasons:

The framework for this decision

According to the Trees Act, I must determine the following issues relevant to this matter:

Is the tree principally situated on the respondents' land?
Has the tree caused, is it causing, or is it likely to cause damage to the applicant's property?
Is the tree likely to cause injury?
If so, does it need to be removed? Before making any orders, I must consider a range of matters set out at s 12 of the Trees Act.
Who should pay for any works?

Onsite hearing

This morning's onsite hearing allowed observations of the tree and both properties. The parties made submissions: Mr and Mrs Umlil supporting the application, and Mr Hayden Smith for his parents.

The tree is principally on the respondents' land

The parties agreed that the fence is aligned along the common boundary, with a gap in the fence where the tree stands. Observations during the hearing were sufficient to confirm that at its base, the tree's stem has approximately 40% of its area on the applicant's land and 60% on the respondents'. Therefore the tree is principally located on the respondents' land, allowing the Umlils to apply for orders pursuant to the Trees Act.

The tree has damaged the applicant's property

The Umlils' paving around the tree is slightly uneven. Considering the species of tree, and its size, I am satisfied that paving near its base has been displaced by buttress root growth. There is no evidence that paving further from the tree has been displaced. The quote obtained for tree removal includes notes that the tree's roots would be under the dwelling's foundations, but no evidence of this has been provided. Mr Umlil said they had to replace some roof tiles. Although he said this was due to branches from the tree, he provided no evidence of this.
As Mr Smith argued, the arborist's notes are on a quote for tree removal - they do not form a separate independent report. No structural engineer has carried out investigations. I am not satisfied that the tree has caused any damage beyond the slightly uneven paving.

Is the tree likely to cause damage or injury?

Mr Umlil provided photos of other trees with major branch failures in the area, but this does not demonstrate that this Paperbark is likely to fail. I understand that the Umlils are concerned about the safety of their family and visitors to their property. However, considering the tree's maturity and lack of significant damage in the past, I am not satisfied that damage or injury is likely in the near future. A broken branch is hanging in the tree's crown, but this is relatively small. There was no evidence that the tree has been pruned recently, and some pruning would reduce the risk of such limb failures. There is nothing to suggest that any further movement of paving around the tree would be greater than the minor movement that has occurred so far.
The respondent's arborist noted that the tree is mature and structurally sound. I observed a narrow fork between two limbs, but this is fairly typical for the species. The limbs are upright and there is no evidence to suggest their failure is likely in the near future.

Tree removal is not required

The tree provides shading, cooling and amenity to both sites. It can be seen from the street. Past damage is minor; the risk of damage or injury in the near future is relatively low. I find that tree removal is not required. Some pruning of the crown would minimise risk of branch failure, especially where branches extend above the Umlils' dwelling.

Who should pay for the works?

The tree is located upon the boundary, and was likely on the boundary even as a younger small tree, a situation similar to that of Chan v McDonald [2018] NSWLEC 1692. Although it is principally situated on the Smiths' land, its ownership is shared by the parties. Costs of any works that are required should therefore be shared.

Timing of the works

I will order pruning, but will allow a 6-month timeframe for the works. Should the respondents' property sell and its new owners agree to the tree's removal, which is already permitted by Council, the cost of pruning might be avoided. These orders would allow the applicant together with either the current owners or the new owners up to six months to remove the tree on terms to which they agree. The day of the respondents' proposed auction, and one day either side, are to be avoided.

Orders

As a result of the foregoing, the Court orders that: 1. Within 30 days of the date of these orders, the parties are each to obtain and swap with each other at least one quote from a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances, for pruning the tree on their common boundary as described in order (2). 2. Within 6 months of the date of these orders, excluding 17-19 April, the applicant is to engage the arborist with the cheapest quote from (1), or another if agreed, to prune the tree to remove dead and broken branches and to reduce the crown above the applicant's property, removing no more than 20% of live crown mass. All pruning works must be carried out in accordance with AS4373:2007 Pruning of amenity trees and the 2016 Safe Work Australia Guide to managing risks of tree trimming and removal work. 3. On reasonable notice, the respondents are to allow any access necessary for the pruning works in (2) to be completed. 4. Within 7 days of receiving a copy of a receipted paid invoice for the pruning works, the respondents are to pay the applicant 50% of the quoted amount. 5. If the parties agree to tree removal prior to the pruning ordered above, orders (1)-(4) lapse.

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: 02 April 2020

Umlil v Smith

At a glance

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Decision date

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Judgment (12 paragraphs)

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Cases Cited (1)