Blackman v Christophides

[2017] NSWLEC 1072

Land and Environment Court

New South Wales

Medium Neutral Citation:	Blackman & anor v Christophides & anor [2017] NSWLEC 1072
Hearing dates:	20 February 2017
Date of orders:	20 February 2017
Decision date:	20 February 2017
Jurisdiction:	Class 2
Before:	Fakes AC
Decision:	Application granted see [19]
Catchwords:	TREES [NEIGHBOURS] Damage; injury
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	Margaret and Philllip Blackman (Applicants) Kyriacos and Maria Christophides (Respondents)
Representation:	Applicants: M & P Blackman (Litigants in person) Respondents: K & M Christophides (Litigants in person)
File Number(s):	356152 of 2016
Publication restriction:	No

JUDGMENT

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

1. COMMISSIONER:   The applicants purchased their Menai property some 7-8 years ago. At that time there were a number of trees growing on the adjoining land to the east, close to the common boundary.

2. The applicants have applied under s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the pruning of two trees and the removal of another in accordance with a Tree Assessment Notice of Determination issued to the applicants by Sutherland Shire Council on 3 November 2016. As the respondents did not provide owners’ consent for the works to proceed, the applicants filed the Class 2 application with the Land and Environment Court.

3. The Notice of Determination provides provisional consent for: the removal of deadwood and selective pruning of extended lateral growth from T1 up to 15% of the live canopy; removal of deadwood and the lowest lateral branch over the applicants’ property from T2; and the removal and replacement of T3.

4. The orders are sought on the basis that branches falling onto their property could cause damage or injury. They also claim that roots from one of the trees have caused damage to their driveway and could continue to do so.

5. In applications under Part 2, the key jurisdictional test is found in s 10(2). This states:

(2)   The Court must not make an order under this Part unless it is satisfied that the tree concerned:

(a)   has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or

(b)   is likely to cause injury to any person.

6. The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. At [62] Craig J states in part “something more than a theoretical possibility is required in order to engage the power under [the Trees] Act…”.

7. There are three trees which are the subjects of this application. Trees 1 and 2 are two Corymbia gummifera (Red Bloodwood); Tree 3 is a semi-mature Ficus benjamina (Weeping Fig).

Trees 1 and 2

8. The Bloodwoods are probably remnants of the original forest. Part of the canopy of each tree overhangs the applicants’ property – in particular the driveway and garage roof. The applicants contend that branches regularly fall from the trees. While they stated that while no damage has been caused by them, the applicants are concerned that damage could be caused. [In oral evidence it was stated that branches from T2 had damaged a car parked in the driveway however there was no evidence to substantiate this claim.] The applicants also maintain that one of them was struck by a small branch when they were hanging out the washing on the clothesline located directly beneath the canopy of T1.

9. The respondents contend that the two Bloodwoods are part of the natural environment of the area and they do not wish to prune them.

10. Neither party engaged an arborist to provide independent expert opinion although the trees were inspected by a council Tree Management Officer and the applicants obtained a quote from an arborist for pruning and removal however no report accompanied the quote.

11. With the arboricultural expertise I bring to the Court, I made the following observations. Trees 1 and 2 are healthy specimens with form and vigour consistent with being remnant trees. The amount of dead wood in the trees is within the normal range. The majority of the dead wood comprises small diameter twigs however there are a number of larger elements of dead wood in both trees that when they fall, are of a size that could cause damage and or injury, especially as they overhang parts of the applicants’ property which are frequently used. I am satisfied that the relevant tests in s 10(2) are met for these trees and orders will be made for the removal of the larger elements of dead wood.

12. Notwithstanding the council officer’s determination, I saw no signs in either tree that would lead me to order the removal of any live branch.

Tree 3

13. The Fig is a healthy and vigorous semi-mature specimen located in a small garden bed between the respondents’ dwelling and the applicants’ driveway. There is some dispute as to the location of the common boundary however it is agreed that the tree is located on the respondents’ property.

14. At some stage in the past, the respondents placed a timber edge between the garden bed and the outer edge of the driveway. It is possible that this is on the applicants’ property but there is no survey plan to confirm or deny this. While part of the timber edge has been displaced, the applicants’ primary concern is damage to the stencilled concrete driveway.

15. The respondents value the tree for the privacy it affords their property and they do not want to remove it. The first respondent stated that he was advised by an arborist that the roots could be controlled by pruning the top and it was his intention to do this.

16. I observed a minor uplift of about 10mm of the driveway along the eastern end of the expansion joint between two sections of driveway. I observed a woody root about 40mm in diameter growing along the edge in the immediate vicinity of the lifted section and which appeared to go under the slab. The applicants have cut the root. There are several much larger roots visible on the surface of the garden bed and abutting the driveway. At this stage they have not caused any obvious damage. While the damage is minimal, it is sufficient to satisfy s 10(2)(a) of the Trees Act and engage the Court’s jurisdiction to consider what, if any, orders should be made.

17. In determining what orders may be appropriate in the particular circumstances I must consider relevant matters under s 12 of the Trees Act. Relevant here:

• The tree is close to the common boundary. It is a relatively young individual of a species with the potential to be massive; it is growing in a relatively confined space against the applicants’ driveway (s 12(a)).

• The council officer granted conditional approval for its removal as “species is unsuitable for the location given its ultimate size and growth characteristics”(s 12(b)).

• There is no peer reviewed or similar technical evidence to support the respondents’ concept of controlling root growth by pruning; there is no evidence to indicate that the respondent has started this process (s 12(b2));

• As stated above, the respondents value the tree for the privacy it affords their property. I observed other nearby shrubs (including Viburnum tinus) that provide good screening but have far less vigorous root systems (s 12(b3)(e)).

• The applicants have severed one of the roots (s12(h)).

18. While the damage to the driveway is minor at this stage and has been abated to some extent by the severing of the root, I agree with the council officer that this species is unsuitable for its location and it is probable that further/ future damage will occur. While the Court has published a guidance decision in Yang v Scerri [2007] NSWLEC 592 that determines, as a “rule of thumb”, the ‘near future’ is a period of 12 months from the time of a hearing, I am not obliged to follow that guideline if the facts and circumstances indicate otherwise. In my view it is prudent and practical to remove the Fig tree while it is still relatively young (cheaper and easier) and before costly damage occurs to the driveway.

Orders

19. As a consequence of the foregoing, the Orders of the Court are:

1. Within 60 days of the date of these orders, the respondents are to engage and pay for an arborist with a minimum qualification in Arboriculture of AQF level 3 to remove the Ficus benjamina to ground level and to poison the roots (in the alternative, the roots may be ground to a depth of 200mm), and to remove all dead wood down to a diameter of 25mm at its base from all parts of the two Corymbia gummifera identified as trees 1 and 2 in the application claim form which overhang the applicants’ property and to a distance of two metres inside the respondents’ property.

2. The pruning work is to be carried out in accordance with AS4373:2007 – Pruning of Amenity Trees; all work is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry or equivalent safety standard.

3. The applicants are to provide all reasonable access on reasonable notice for the purpose of quoting and for the safe and efficient carrying out of the works in order (1).

4. The pruning in order (1) is to be carried out every two years, two weeks either side of the date of the initial pruning, until such time as either tree is removed. Orders (2) and (3) apply.

________________________

Judy Fakes

Acting Commissioner of the Court

Decision last updated: 20 February 2017