Bradley v Federico

[2016] NSWLEC 1381

Land and Environment Court

New South Wales

Medium Neutral Citation:	Bradley v Federico & anor [2016] NSWLEC 1381
Hearing dates:	31 August 2016
Date of orders:	31 August 2016
Decision date:	31 August 2016
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is upheld in regard to Tree 2. See orders at (10).
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS); damage; injury; one tree not on respondent’s land; orders to remove one tree.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Category:	Principal judgment
Parties:	John Bradley (Applicant) Caterina Bernadette Federico (First Respondent) Antony Federico (Second Respondent)
Representation:	John Bradley, litigant in person (Applicant) Antony Federico, litigant in person (Respondents)
File Number(s):	165727 of 2016

Judgment

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

Background

1. A group of three Swamp Mahoganies (Eucalyptus robusta) stands at the front of Caterina and Antony Federico’s (‘the respondents’) Sylvania property. In January of this year a branch fell from one tree, damaging their neighbour Mr Bradley’s garage. Mr Bradley (‘the applicant’) asked the Federicos to remove the trees. When the trees remained some months later he subsequently applied to the Court pursuant to Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’) seeking orders for the trees to be removed. Mr Bradley seeks $500 compensation for the excess he paid to his insurer for damage caused to his dwelling by the failed branch. Compensation he also seeks for his application fee of $234 is not an order that a Commissioner of the Court can make.

2. Mr Federico explained that, due to their financial situation, he and his wife would find it difficult to pay for any works. Their lack of any action in regard to the trees has perhaps been due not so much to wilful neglect, but more to prioritising their currently limited financial resources.

3. The hearing took place on site. Neither party has obtained any report on the trees, but I bring my own arboricultural expertise to the matter.

The Trees Act does not apply to tree T1

4. The properties along this street are generally without fences along their front boundaries. Mr Bradley believed all three trees to be on the Federicos’ land. The only plan included in his application is hand-drawn and shows the trees, the common side boundary and the street, but not the front boundary of the properties. No survey plan was provided. However, the approximate location of the front boundary can be surmised from the straight line, along the front of these and other properties on this side of the street, where garden beds and low retaining walls end, and where naturestrip crossover surfaces change to driveways within the properties. On my observations, I assume this line to indicate the front boundary and the remainder of this decision is based on this conclusion.

5. The tree labelled T1 in the application is apparently not situated principally on the respondents’ land. The base of the stem, where it enters the ground, is partly obscured by other vegetation, but appears to be situated either wholly or principally on the naturestrip within the road reserve. As the tree appears to be situated on land that is vested in, or managed by, Sutherland Shire, the Trees Act does not apply to it and I cannot make any orders for T1. I am satisfied that trees labelled T2 and T3 in the application are situated on the respondents’ land.

Trees T2 and T3

6. Trees T2 and T3 are approximately 20 metres tall, with stems of 600-800 mm in diameter. T2 is closest to Mr Bradley’s property. Competing for light as it has grown next to T3, its crown extends more to the north, over the Bradley property, while T3’s crown is biased to the south over the Federico property.

7. The large limb that fell in January is not the only limb failure from T2, as evidenced by broken branch stubs present throughout its crown. On the stem not far below the site of the large branch failure is a well-developed fruiting body of a wood-decay fungus. Branch structure throughout the rest of T2’s crown is poor. Further limb failures are likely in the near future. Pruning to mitigate the risk would leave insufficient crown for the tree to remain viable. Removal of T2 is required due to the risk of it causing damage or injury. Because the tree has caused damage to the Bradley property, and is likely to cause further damage in the near future, the Court’s jurisdiction is enlivened and orders will be made for its removal.

8. The crown of T3 is predominantly over the Federico property. One large branch that grew to the north, over the Bradley property, has two fungal fruiting bodies, but has broken some time ago so that only a dead length of branch remains, no longer extending across the common boundary. It does not appear likely to cause damage or injury. The dead branch could be removed back to the main stem at the same time as T2 is removed, but no orders will be made for this.

Compensation

9. By requiring consideration of the benefits of trees (for instance at s 12(e) and (f), the Trees Act recognises that the surrounding community, on both public and private land, can enjoy those benefits. Unless there is a particular reason to order otherwise, the cost of removing their own tree usually falls to respondents, and it is so in this case. The cost of removing even one tree will apparently be a financial burden to the respondents. They will not be required to compensate Mr Bradley for the $500 excess he incurred as a result of the January branch failure.

Orders

10. As a result, the orders of the Court are:

1. The application is upheld in respect to the removal of tree T2.

2. Within 90 days of the date of these orders, the respondents are to arrange and pay for an appropriate contractor to remove the tree labelled ‘T2’ in the application (being the tree that is closest to the applicant’s dwelling in the group of three). The stump may be left to a height of no more than 4 metres. The stump is to be poisoned to the extent required to prevent regrowth.

3. The works in (2) are to be done by a qualified and fully-insured arborist (minimum AQF level 3) in accordance with the NSW Code of Practice for the Amenity Tree Industry.

4. The respondents are to notify the applicant of the works at least 48 hours prior to the works commencing.

5. The applicant is to provide any access required to the front part of his property for the works to be completed in a safe and efficient manner.

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D Galwey

Acting Commissioner of the Court

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