Burbridge v Gounakis

[2016] NSWLEC 1275

Land and Environment Court

New South Wales

Medium Neutral Citation:	Burbridge v Gounakis & anor [2016] NSWLEC 1275
Hearing dates:	1 July 2016
Date of orders:	01 July 2016
Decision date:	01 July 2016
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Pruning ordered see [17]
Catchwords:	TREES [NEIGHBOURS] Damage to property; potential injury
Legislation Cited:	Trees (Disputes Between neighbours ) Act 2006
Cases Cited:	Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	Cecily Burbridge (Applicant) Dimitri and Kathy Gounakis (Respondents)
Representation:	Applicant: Mr D Burbridge (Agent) Respondents: Mr D and Mrs K Gounakis (Litigants in person)
File Number(s):	151992 of 2016

Judgment

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

1. COMMISSIONER: This is an application pursuant to s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Ryde against the owners of a Liquidambar growing on an adjoining property.

2. The applicant seeks orders for the removal of the tree on the basis that branches falling from it have caused damage to her property and future failures could cause further damage or injury. In the alternative, if removal is not ordered, pruning to the boundary is requested.

3. The respondents do not wish to remove what they say is a healthy tree and have offered to contribute 50% of the costs of pruning.

4. Although not stated in the application claim form, the applicant’s agent, her son, sought reimbursement for the cost of the application to the Court. Commissioners of the Court do not have the jurisdiction to order payment of legal costs, costs of expert reports, application fees and the like. If sought, claims for these costs must be made by a Notice of Motion, which is heard and determined by a Judge or Registrar of the Court.

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. In a guidance decision published in Yang v Scerri [2007] NSWLEC 592, as a rule of thumb, the ‘near future’ is deemed to be a period of 12 months from the date of the determination. In regards to injury, the Court considers the risk posed by a tree in the foreseeable future based on the characteristics of the tree/s, any history of previous failures and the circumstances of the site apparent at the time of the hearing.

7. Neither party engaged an arborist to provide independent expert opinion. With the arboricultural expertise I bring to the Court I make the following observations and findings.

8. The Liquidambar is a mature specimen growing within about one metre of the dividing fence between the parties’ properties. The tree was deciduous at the time of the hearing. Photographs taken in late 2015/ early 2016 after the branch failures show the tree in full leaf. From the photographs and other signs on the tree, the tree appears to be healthy.

9. Absent the leaves, it is clear that several large branches on the applicant’s side of the tree have failed; as a result, branches lower in the canopy have also been damaged.

10. The applicant contends that the failures happened in calm conditions after a period of wet weather. She states that a large branch fell onto the lawn and bounced into the clothesline causing some minor damage to it. Another branch caused some damage to a Crepe Myrtle and other plants growing beneath it. There are no photographs of the damage however the claim is not contested.

11. I am satisfied on the evidence that the size of branches that fell quite probably did cause some damage to the applicant’s property. I note that no compensation is sought for repair of any damage as the applicant accepts it was minor.

12. I am also satisfied that the branch failures have created a situation where there remains a risk of further failure either from weakly attached epicormic shoots which are likely to sprout from the damaged limbs or of the remaining damaged and split sections of branch which are now susceptible to decay. These failures are reasonably foreseeable.

13. On this basis I am satisfied that the jurisdictional tests in s 10(2) are met and the Court’s powers to make orders under s 9 are engaged.

14. The making of orders requires consideration of relevant matters in s 12 of the Act. Of most relevance:

• When in leaf, the tree will contribute to the amenity of the respondents’ property;

• Pruning, if carried out in accordance with the Australian Standard, should have little impact on the health of the tree especially if carried out before spring;

• The applicant arranged for Ryde City Council’s Tree Management Officer to inspect the tree. This was done on 1 February 2016. The council’s arborist recommended removal of the tree on the basis of the numerous large diameter branch failures.

• The respondents sought the advice of arborists. They were informed that the tree is healthy, does not require removal but does need some pruning.

15. I agree with the respondents that removal is not warranted however, some pruning is required. Photographs appended to the judgment show where the final cuts are to be made and or which branches are to be removed back to branch or trunk collars. It may be difficult to identify all branches that need to be removed or pruned from the photographs. An appropriately qualified and experienced arborist should be able to assess which branches are to be reduced to a healthy lateral or should be removed at the trunk. The photographs were taken from the applicant’s property and therefore access to that property may be required for the purpose of quoting and or carrying out the work.

16. There was some discussion as to who should pay. It is usual in these cases that the owner pays for any works to be carried out on the tree unless there is proof that the applicant has in some way contributed to the problem. While the respondents allege that some pruning may have taken place without their knowledge, there is no clear evidence of this. Therefore, the respondents will be required to pay 100% of the costs of pruning.

17. Therefore the Orders of the Court are:

1. The application to remove the tree is dismissed.

2. The respondents are to engage and pay for an arborist with minimum AQF level 3 qualifications in arboriculture, and with appropriate insurance cover, to remove the branches identified in the photographs attached to this judgment.

3. The works in (2) are to be completed within 60 days of the date of this judgment.

4. The work is to be carried out in accordance with AS4373:2007 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry.

5. Should it be required, the applicant is to provide any necessary access for the purpose of quoting and for the work to be carried out in a safe and efficient manner.

__________________________

Judy Fakes

Commissioner of the Court

                                                                 ANNEXURE 1: Photographs

Photograph 1: Branches to be removed. In addition, any other branches which have been torn and or split are to be removed either back to a healthy lateral branch at least a third of the diameter of the branch being cut or are to be removed at the trunk. Only structurally compromised branches are to be removed. NB. Not all damaged branches can be easily identified from this photograph.

Photograph 2: Indicative points at which some of the identified branches are to be removed. See note above – not all branches which need to be removed are illustrated in the photograph. Some removal will be at the discretion of the arborist.

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Decision last updated: 09 May 2018