Brady v Shashoua

[2007] NSWLEC 203

Land and Environment Court

of New South Wales

CITATION:	Brady v Shashoua [2007] NSWLEC 203
PARTIES:	APPLICANT Steven Brady RESPONDENTS Gerald & Robyn Shashoua
FILE NUMBER(S):	20098 of 2007
CORAM:	Moore C - Fakes AC
KEY ISSUES:	Trees (Neighbours) :-
DATES OF HEARING:	11 April 2007
EX TEMPORE JUDGMENT DATE:	11 April 2007
LEGAL REPRESENTATIVES:	APPLICANT In person RESPONDENTS Second respondent in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C
FAKES AC

11 April 2007

07/20098 Steven Brady v Gerald & Robyn Shashoua

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

JUDGMENT

1 THE COMMISSIONERS: This is an application, pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act), by Mr Brady of 74 Macquarie Drive, Cherrybrook concerning a Sydney Red Gum (Angophora costata) (the tree) located on the next door property at 76 Macquarie Drive and in located in the southeastern corner of the rear yard of that property.

2 Mr Brady seeks an order that the tree be removed. His application is primarily related to what he considers to be the risk of failure of the tree and it falling on his house or in his rear yard. He submits that the history of branches and other detritus from the tree falling in his property renders it sufficiently probable that such an incident will occur again in the future. This therefore warrants, in his view, an order for the removal the tree in its entirety.

3 This proposed order is resisted by the owners of the tree, Mr and Mrs Shashoua, who are the residents of 76 Macquarie Drive.

4 The Court is obliged to consider a number of matters pursuant to s 10 of the Act.

5 We are satisfied, first, that there has been an attempt between the parties over a long period of time to reach agreement with respect to the tree and that this has been unsuccessful. Such satisfaction is a necessary precursor to us dealing with this application.

6 Second, the major test that is posed, by s 10(2) of the Act, is that the court has to be satisfied that the tree concerned has caused, is causing or is likely, in the near future, to cause damage to the applicant’s property or is likely to cause injury to any person.

7 We have carefully inspected the tree and have read and considered all of the material that has been provided to us.

8 We have concluded that, on the general question of safety of the tree, no case has been made out pursuant to section 10(2) that would warrant an order for removal of the tree in its entirety.

9 We have considered each of the elements of that part of the major trunk system of the tree which is located in the direction of Mr Brady's property.

10 As a consequence, we have reached a number of specific conclusions with respect to some of the limbs attached to that trunk system. There are three matters of concern arising regarding these limbs.

11 The first is that, at the upper level of the more northeastern portion of that trunk, there is an excessive and unusual occurrence of growth at the tip of one of the minor limbs of the tree. The excessive vegetation on that limb is such that there appears to be a modest risk of failure for this limb. We are satisfied, on balance, that there is an unacceptable risk of failure of this limb. Prudence would dictate that least that portion of this limb warrants removal.

12 With respect to the major element of the tree’s main sub trunk that leads toward the Brady’s rear yard and house, there appears, at approximately halfway along its length, a major area of red staining to which is attached a number of small number of (now dead) epicormic branches which have grown in the vicinity of an earlier limb wound or badly carried out pruning operation to that area.

13 We are unable to determine, without an aerial inspection of the tree, the cause of that stain or whether there is any limb damage in the vicinity of that stain. As a consequence, we cannot assess whether there is any risk of failure of this major limb at this point as a result of the past wound/pruning activity in that area.

14 We are, therefore, satisfied that an aerial inspection is warranted of this area.

15 Adjacent to that red staining, toward the main trunk of the tree, is a further subsidiary pair of vertical branches in what might be described as a “V shape”.

16 We are equally unable to reach a conclusion as to the likely failure or otherwise of either or both of those branches (at the V joint at their junction) without them being inspected by aerial inspection.

17 We therefore propose to order that these two elements of the tree should be subject to inspection and report. This ought be undertaken at the same time as the removal of the excessive growth element to which we have earlier referred.

18 We have reached these conclusions on the basis of a prudent and precautionary approach to what might be consequences of limb failure – particularly in the vicinity of the red stain – and, if it were to occur, the possible damage to Mr Brady's property.

19 We are not prepared, on the basis of the present lack of adequate information, to order removal of either of those elements that we consider should be the subject of aerial inspection to determine their safety.

20 However, we will order that such inspection be undertaken and that a report be prepared for the parties and that the parties abide by any recommendation of such report (whether for removal or retention of either or both of those elements).

21 Before making any orders, we should note that we have reached the conclusion that any arborist (to undertake the pruning of the a single branch that we propose be removed and the inspecting and reporting on the safety and stability of the two elements that we have identified) should be an arborist jointly appointed and jointly paid for, in equal shares, by the parties.

22 If they are unable, within 21 days of the date of the formal orders of the Court, to reach agreement on such an arborist, each party will be given liberty to apply to the Court for appointment of a joint parties expert to undertake the activity at joint cost to the parties.

23 We are taking that approach because we consider that it is desirable that each of the parties to this dispute have a degree of confidence that the appointment and payment process for the arborist to be involved does not compromise or be perceived to compromise the opinions or activities of such a person.

24 We therefore propose to make the following orders:

1. the single branch structure marked and identified in Annexure A is to be removed;
2. an arborist is to be appointed to implement (1) and to inspect and advise the parties on the safety and stability of the red strained sub-trunk (from the point of that staining to the tip of that branch structure) as marked and identified in Annexure B;
3. the arborist appointed to implement (1) is to inspect and advise the parties as to the safety and stability of the V shaped branches adjacent to and toward the main trunk from the red stain referred to in (2) as also marked and identified in Annexure B;
4. any recommendation for pruning of either or both of the branches identified in (2) and/or (3) is to be implemented within 28 days of the provision of the report to the parties;
5. the arborist who is to undertake the pruning in (1); the inspection and report in (2) and (3); and any pruning pursuant to (4) is to be an AQF level 3 qualified arborist with at least five years experience and must be a member of the National Arborists’ Association;
6. the cost of the pruning in (1); the inspection and report in (2) and (3); and any pruning pursuant to (4) is to be shared equally by the parties;
7. any pruning to be carried out as a result of these Orders is to be carried out in compliance with Australian Standard 4373 of 2007; and
8. if there is no agreement between the parties within 21 days of the date of the Orders as to the arborist who is to undertake the pruning in (1); the inspection and report in (2) and (3); and any pruning pursuant to (4), either party has liberty to apply, on two days notice, to the Court for a joint parties expert arborist to be appointed to give effect to the Orders.

Tim Moore Judy Fakes

Commissioner of the Court Acting Commissioner of the Court