Burbridge v Gounakis

[2019] NSWLEC 1202

Land and Environment Court

New South Wales

Medium Neutral Citation:	Burbridge v Gounakis [2019] NSWLEC 1202
Hearing dates:	2 May 2019
Date of orders:	03 May 2019
Decision date:	03 May 2019
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	(1)   The application for compensation is refused. (2)   The application for tree removal is granted. (3)   Within 60 days of the date of these orders, the respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances to remove the tree to no more than 50 cm above ground level. (4)   The works ordered above must be carried out in accordance with the 2016 Safe Work Australia Guide to managing risks of tree trimming and removal work. (5)   The respondents are to give the applicant two days’ notice of the works. (6)   The applicant is to allow all access required to complete the works ordered above during reasonable hours of the day.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – falling limbs – risk of damage and injury – change in circumstance since previous decision – root damage – respondents not aware of damage prior to application – orders for tree removal – no orders for compensation
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 (NSW)
Cases Cited:	Hinde v Anderson and anor [2009] NSWLEC 1148 Yang v Scerri [2007] NSWLEC 592
Texts Cited:	Safe Work Australia: Guide to managing risks of tree trimming and removal work
Category:	Principal judgment
Parties:	Cecily Burbridge (Applicant) Dimitri Gounakis (First Respondent) Kathy Gounakis (Second Respondent)
Representation:	D Burbridge, agent (Applicant) D Gounakis and K Gounakis, litigants in person (Respondents)
File Number(s):	2019/33153
Publication restriction:	No

Judgment

Background

1. Since July 2016 when this Court gave orders for Dimitri and Kathy Gounakis (‘the respondents’) to prune their Liquidambar tree (‘the tree’), more branches have apparently broken and fallen from the tree on multiple occasions. Cecily Burbridge (‘the applicant’), neighbour to the respondents, has again applied to the Court, pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’), seeking orders for removal of the tree to prevent branches falling into her property where they might cause damage or injury.

2. Last year Mrs Burbridge also noticed tree roots across her lawn and in the vicinity of a concrete pad around her clothesline. The concrete is partly displaced and uneven. She seeks compensation for the cost of removing and replacing the concrete, quoted at $4,600. Mrs Burbridge further says she has been unable to maintain part of her garden due to the risk of injury from falling branches, so seeks compensation of $380 quoted for restoring her garden to its previous state.

3. Mr and Mrs Gounakis wish to retain the tree if possible. They have offered to prune the tree.

Framework of the Trees Act

4. Mrs Burbridge does not claim that fallen branches damaged her property. Considering the application, the jurisdiction of the Trees Act, and the Court’s decision in the earlier proceedings about the same tree, the issues I must determine are:

• Have circumstances changed since the Court’s earlier decision?

• Are branches likely to fall and damage the applicant’s property in the near future, or injure somebody?

• If so, and after considering matters at s 12 of the Trees Act, should orders be made for removing the tree, or for other works?

• Have roots of the tree damaged Mrs Burbridge’s property?

• If so, should she be compensated for any damage?

• Should Mrs Burbridge be compensated for restoring her garden beneath the tree?

The onsite hearing

5. The hearing took place onsite. Mrs Burbridge’s son, David Burbridge, was granted leave to act as her agent. Mrs Burbridge’s application included a report on the tree from arborist Ron Atkins, of Evergreen Tree Services. Bringing my own arboricultural expertise, I inspected the tree and its surrounds.

Have circumstances changed since the Court’s earlier decision?

6. Although the 2016 proceedings involved the same tree, and falling branches, Mrs Burbridge’s current application is principally based on her claim that more branches have fallen from the tree since then. I observed broken branch stubs within the tree’s crown and one large broken branch suspended on other branches. It still holds its foliage, now dead, indicating it has broken from the tree stem recently. I am satisfied that branches have fallen from the tree since July 2016, some of a sufficient size to cause damage or injury. As discussed by Moore SC and Thyer AC in Hinde v Anderson and anor [2009] NSWLEC 1148, circumstances have therefore changed and this second application can be made.

Are tree branches likely to cause damage or injury?

7. Mr Burbridge submitted that 16 branches have now fallen from the tree since November 2015. Before then, in the many years that Mrs Burbridge has lived here, no branches of significant size fell from the tree.

8. Mr and Mrs Gounakis said they have never seen a branch fall from the tree, but conceded they have seen branches on the ground after they have fallen. They suggested there is no evidence to show that branches broke, rather than fell after being cut. On my observations, the remaining branch stubs suggest branches were not cut, but broke and fell.

9. Mr Burbridge submitted that the Court’s interpretation of “the near future” at s 10(2)(a) of the Trees Act should not be limited to 12 months, a period regarded as appropriate since Yang v Scerri [2007] NSWLEC 592. Mr Burbridge argued that all trees are different, but gave me no reason to consider this particular tree any differently.

10. Mr Atkins’ report describes the tree as “…showing medium to good health, with a full crown, poor overall frame and some debilitated branches.” I agree that the tree appears relatively healthy but its crown is no longer full due to the number and size of branches that have failed, especially in the upper crown. This has left the topmost branches very exposed and, in my view, likely to fail in strong winds. These branches are large enough to cause damage or injury, so the Court can make orders to prevent this.

Should orders be made for removing the tree, or for other works?

11. Having considered the matters at s 12 of the Trees Act, most relevant to my decision is:

12 Matters to be considered by Court

Before determining an application made under this Part, the Court is to

consider the following matters:

…

(b2) the impact any pruning (including the maintenance of the tree at a certain height, width or shape) would have on the tree,

…

12. Removal of the upper branches, at the least, is required to minimise the risk of damage or injury. Below those topmost exposed branches are several damaged branches with splits or wounds. These limbs too would need to be removed, leaving only the lower half of the stem with several limbs spreading from it. Such ‘topping’ of the tree is against best pruning practices and would lead to its further decline.

13. Despite its benefits, including shade, cooling and amenity, there is no suitable alternative to removing the tree, so I will make orders for this.

Have the tree’s roots damaged Mrs Burbridge’s property?

14. Large woody roots have been exposed in the lawn between the tree, which is alongside the fence on the common boundary, and Mrs Burbridge’s clothesline, some 10 metres away. Nearest the tree, a section of the small concrete pad around the base of the clothesline is displaced and slightly uneven. On the other side of the clothesline the concrete is cracked.

15. Mr Burbridge submitted that the concrete nearest the tree has been lifted by roots, but the cracked concrete further from the tree is due to its age.

16. Mr Burbridge suggested the roots were from the Liquidambar. Mr and Mrs Gounakis submitted that this was not obvious and has not been proven.

17. The roots’ size, colour, and alignment are consistent with them belonging to the Liquidambar. The largest exposed root is within approximately one metre of the tree, between its stem and the other exposed root sections, which all align with the tree’s base. No other tree is nearby, although a gum tree was apparently removed in the vicinity. These roots are still alive, however, so I accept that they are part of the Liquidambar’s root system, which is likely to be extensive.

18. Root alignment indicates that roots reach the concrete at the base of the clothesline. I accept that part of the concrete has been lifted by root growth, but I will not make any orders for compensation for repairing or replacing the concrete for the following reasons.

Should Mrs Burbridge be compensated for damage to concrete?

19. The extent of displacement to the concrete is relatively minor. Mr Burbridge conceded the concrete was old and cracked elsewhere. Its overall condition is more likely a result of its age and deterioration.

20. Mr Burbridge stated that he did not inform the respondents of the damage prior to the filing of the application. Mr and Mrs Gounakis have not had an opportunity to discuss the issue outside of a litigious environment, nor to take any action to prevent the damage. I find there is no reason for them to pay compensation for damage of which they were not aware and which they could not prevent.

21. As the tree is to be removed, I have no reason to consider the likelihood of future damage caused by its roots.

No compensation to be paid for gardening work

22. Mrs Burbridge claimed she has been unable to garden near the tree because of the risk of falling branches. The garden does not seem excessively overgrown. Someone has mown the lawn despite the Liquidambar’s overhead branches. The submitted quote is for minor works: “Clean up the weed on the right hand side of the garden bed in the backyard. Trim of plant and remove weed behind the fence. Removing of rubbish.” I do not accept that the tree has prevented these works being done, or that Mr and Mrs Gounakis should now pay for those works.

Orders

23. As a result of the foregoing, the orders of the Court are:

1. The application for compensation is refused.

2. The application for tree removal is granted.

3. Within 60 days of the date of these orders, the respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances to remove the tree to no more than 50 cm above ground level.

4. The works ordered above must be carried out in accordance with the 2016 Safe Work Australia Guide to managing risks of tree trimming and removal work.

5. The respondents are to give the applicant two days’ notice of the works.

6. The applicant is to allow all access required to complete the works ordered above during reasonable hours of the day.

____________________________

D Galwey

Acting Commissioner of the Court

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Decision last updated: 03 May 2019