Ashworth v Joyce

[2007] NSWLEC 357

Land and Environment Court

of New South Wales

CITATION:	Ashworth v Joyce [2007] NSWLEC 357
PARTIES:	APPLICANTS Peter & Meryl Ashworth RESPONDENTS John & Susan Joyce
FILE NUMBER(S):	20259 of 2007
CORAM:	Moore C - Thyer AC
KEY ISSUES:	Trees (Neighbours) - Neighbour Application :- Risk of injury Dead trees
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
DATES OF HEARING:	15 June 2007
EX TEMPORE JUDGMENT DATE:	15 June 2007
LEGAL REPRESENTATIVES:	APPLICANTS In person RESPONDENTS Mrs Joyce for both respondents

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C
THYER AC

15 June 2007

07/20259 Peter & Meryl Ashworth v John & Susan Joyce

JUDGMENT

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

The consequence of the Court’s decision in this application is the making of formal orders pursuant to s 9 of the Trees (Disputes Between Neighbours) Act 2006 . These orders are not reproduced as part of this decision but a copy the Court’s orders may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the orders are available on the Court’s web site at

1. COMMISSIONERS: This is an application made pursuant to s 7 of the Trees (Disputes Between Neighbours) Act2006 (the Act).

2. The application is lodged by Mr and Mrs Ashworth of 76 Hudson Parade, Clareville.

3. The application seeks orders for removal of four dead tree trunks located on the adjacent property to the north - which is 74 Hudson Parade. Both properties also have rear frontages to Clareville Beach, a public beach.

4. Mr and Mrs Joyce, the owners of 74 Hudson Parade, do not agree to any order to remove or otherwise further modify the four dead trees.

5. Each of the dead trees has had its entire significant upper storey removed.

6. A copy of a plan in Mr and Mrs Ashworth’s application is appended to and forms part of this decision. That plan numbers each of the trees from T1 to T4 – an identification we adopt.

7. We have been assisted, during the course of this hearing, by evidence and statements given by Mr Paul Shearer, an expert arborist giving evidence on behalf of Mr and Mrs Ashworth, and Mr Kyle Hill, an expert arborist giving evidence on behalf of Mr and Mrs Joyce.

8. We have had the opportunity of inspecting the trees from both levels of the Ashworths’ residence, from the adjacent public beach and from the trafficable roof area of the boatshed on the Joyce’s property.

9. During the course of the proceedings, both Mr Hill and Mr Shearer were invited to express opinions on the two relevant tests which the Court is required to consider pursuant to section 10(2) of the Act – there being no question that any of these trees has, in the past, or is, presently, causing damage to the Ashworths’ property.

10. With respect to the first of the questions requiring to be addressed (that is the question as to whether it is likely in the near future that any one of these trees would fail and cause damage to the Ashworth's property), it was Mr Shearer's evidence that he was not able to say when the trees would fail but that there was an inevitability that they would do so.

11. We are satisfied that in general terms, the words “in the near future” in s 10(2)(a) of the Act set a fairly limited time horizon. As a preliminary view, we think this would mean not longer than 12 months or so from the date of the Court’s hearing.

12. It was the evidence of Mr Shearer and Mr Hill that it is not possible to be satisfied that it is likely that any one of those trees would fail within that timeframe. We are not prepared to say that they would fail in the near future. Therefore, with respect of each of those trees, the test under section 10(2)(a) is not satisfied

13. We turn to the question of risk of injury to persons.

14. With respect to T2, T3 and T4, we consider, because of the topography and the angle of attachment of those trees, that it is likely, if they were to fail, they would fall in the direction of the public beach.

15. Mr Hill has measured the height of each of those trees and the distance from the base of each of those three trees to the boundary of the Joyce property at the public beach.

16. If each of them failed and fell in hinge-like fashion, each one of them would fall entirely within the Joyce property:

17. There is no evidence available to us that the target area that would result from such failure is one of high risk – indeed, on Mr Shearer's evidence, the target area on the breach itself not one of high risk.

18. As a consequence, with respect to T2, T3 and T4, we are satisfied that, even if they were to fail and fall, that their falling within the Joyce property does not satisfy the test under section 10(2)(b) of being likely to cause injury to any person.

19. With respect to T1, the tallest and furthest uphill of the four dead trees, a problem arises because we have no precise evidence as to the height of the remaining tree trunk.

20. The totality of T1’s canopy has been removed and all major limbs have been removed or pruned back to the trunk of the tree.

21. Although we do not have a precise height measurement, T1 would appear to be some 2 m or more, at its top, above the top of T2 - however, the base of T2 is somewhat downhill and lower than the base of T1

22. Although he made no measurement of T1, we have been assisted by Mr Hill’s evidence that it is possible that, if T1 were to fail, it would fail in a fashion where it is reasonably possible that some part of its upper portion would extend beyond the boundary of the Joyce property and onto the public beach.

23. As a consequence, we are obliged to consider that, if this tree were to fail, then there may be some risk of injury to a person on the public beach.

24. We are satisfied, having considered the angle of attachment of this tree from both the upper and lower outdoor areas of the Ashworth's house, that it is unlikely that the tree would fall in the direction of their house. If it did fall in the direction of their house, it is likely to fall against the house and there is no evidence of which we could be satisfied that such a falling against the house would cause any injury to any person to a sufficient extent to describe that as “likely” – as required by s 10(2)(b).

25. We are satisfied, on the balance of probabilities, that, if T1 were to fail, it is more likely than not to fall in a beachward direction.

26. As a consequence, in order to eliminate the risk of injury to persons on the public beach, we are satisfied that the Court should order the removal of the upper portion of that tree to a point which we will mark on a photograph (which will be an annexure to the orders of the Court). This point is approximately 2 m below the top of the present trunk of the tree and is at the point where a branch has been removed on the north eastern side of the tree. Doing this would contain any fall to the Joyce property.

27. We are satisfied that this removal should be undertaken by Mr and Mrs Joyce and that they should have twenty eight (28) days from the date of the orders of the Court to do so.

Tim Moore

Commissioner of the Court

Peter Thyer

Acting Commissioner of the Court