Cheong v Ren

[2009] NSWLEC 1381

Land and Environment Court

of New South Wales

CITATION:

Cheong v Ren [2009] NSWLEC 1381

PARTIES:

APPLICANT
Glen and Janet Cheong

RESPONDENT
Gary Ren

FILE NUMBER(S):

20528 of 2009

CORAM:

Fakes C

KEY ISSUES:

TREES (NEIGHBOURS) :- Removal of overhanging branches from four trees

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

CASES CITED:

Yang v Scerri [2007] NSWLEC 592

DATES OF HEARING:

16 November 2009

EX TEMPORE JUDGMENT DATE:

16 November 2009

LEGAL REPRESENTATIVES:

APPLICANT
Glen and Janet Cheong (litigants in person)

RESPONDENT
Gary Ren (litigant in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C

16 November 2009

20528 of 2009 Glen and Janet Cheong v Gary Ren

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 s7 of the Trees (Disputes Between Neighbours) Act 2006 made by Mr and Mrs Cheong the owners of a property at 5 Pindari Avenue St Ives against the owner of trees growing at 7 Pindari Avenue. The owner of that property is Mr Gary Ren. The applicants’ property is currently tenanted by Mr Ivan Kessel and family.

2 The applicants are seeking the removal of overhanging branches from four trees growing along the northern side boundary of the respondent’s property. They are concerned that branches falling from these trees may cause damage to property or injury to persons.

3 The trees are two Angophora costata (Sydney Red Gum) and two Cupressus torulosa (Bhutan Cypress). Under s10(2) of the Act, the Court must not make an order unless it is satisfied that any of the trees has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property or is a risk of injury to persons. In Yang v Scerri [2007] NSWLEC 592, a rule of thumb, which I consider is also appropriate here, puts the near future as being a period of 12 months from the date of the determination. That said, the tests must be applied to each tree.

4 The trees were inspected from both properties and the upper parts of the canopies were viewed through binoculars.

5 Tree 1 is the most easterly of the trees. It is a mature Angophora growing in close proximity to other angophoras. The arrangement suggests that these are remnants of the original vegetation. The crown of the tree is healthy but due to competition for light with neighbouring trees, a large branch overhangs the applicants’ property.

6 On 10th March 2006, in windy conditions, a large upper section of the canopy of this tree snapped and was suspended in the canopy over the applicants’ property. The SES was unable to remove it so the applicants arranged for a tree company to carry out the removal of the damaged section. The respondent stated that he contacted his insurers who informed him that as it occurred in a wind, he was not responsible.

7 The evidence of the torn limb remains in the canopy. The applicants and their tenant are concerned that as a sizeable section of the canopy of the tree overhangs the front of the property near the entrance to the house that something similar may happen again.

8 Apart from the large wound resulting from the storm damage, there are no obvious structural defects in the tree or any other signs that may predict failure.

9 Tree 2 is another Angophora to the west of tree 1. This tree has a thin canopy and some minor deadwood. There is some kino weeping from the trunk. Part of the canopy of this tree overhangs the applicants’ property, including the roof of the house, but apart from the falling of small elements of dead wood no damage or injury has arisen from this tree. The area between the tree and the house does not appear to be an area frequently occupied by people. The branch attachments on this tree appeared sound and there were no obvious structural defects.

10 Trees 3 and 4 are Bhutan Cypress and they have a habit that is not uncommon in mature specimens of this species where there is competition for light. There are six to seven secondary leaders and the majority of the foliage is on the upper two thirds of those stems.

11 One of the leaders from tree 3 fell onto the roof of the applicants’ house but did not cause damage. Several other stems are at angles of about 40 degrees or more and are leaning towards the roof. The bases of these stems have a degree of included bark. One of the stems from tree 4 is abnormally angled towards the rear of the applicants’ house and nearby garden.

12 The Court must consider a number of matters under s12 of the Act. The relevant clauses in this case are;

(a) The trees are wholly located on the respondent’s property.
(d) The angophoras are likely to be remnants of the original vegetation and therefore contribute to the local ecosystem and to biodiversity. Tree 1 contains at least 2 dead stubs capable of supporting wildlife.
(e) The trees contribute to the natural landscape and the scenic value of the land on which they are growing and to the locality.
(f) The trees have intrinsic value to public amenity as they can be seen from the street and are part of the overall canopy that contributes greatly to the landscape character of the area.
(h) and (i) (ii) On two separate occasions the applicants have organised and paid for the removal of broken or fallen branches from the respondent’s trees.

13 Returning to s10(2) of the Act with respect to each tree. Tree 1 has a major wound resulting from previous storm damage. In my opinion, this has weakened the remaining section of the branch and there is a risk of failure of this part and a subsequent risk of injury to people. Therefore s10(2) is satisfied and the Court’s jurisdiction enlivened and the Court can make an order.

14 Tree 2 has not caused, is not causing, and is unlikely, in the near future, to cause damage to property or be a risk of injury to persons therefore as none of the tests in s10(2) are satisfied, no orders can be made with respect to this tree.

15 Trees 3 and 4 have failing limbs that could, in the near future, cause damage to property. The applicants have offered to share the cost of removing those branches. As an element of s10(2) is satisfied, the Court can make an order with respect to these trees

16 The orders of the Court are:

1. The application is upheld in part.
2. The application to prune overhanging branches from tree 2 is refused.
3. The respondent is to engage an AQF level 3 arborist with the appropriate insurances to carry out the following works:
i. Removal of the damaged section of tree 1 to the point indicated on the photograph included as Annexure 1.
ii. Removal of all dead wood down to 30 mm in diameter from Tree 1 with the exception of the two dead stubs arising from the southern side of the tree. (These stubs are to be retained for their habitat value).
iii. Removal of the branches from tree 3 that are indicated on the photographs in Annexure A.
iv. Removal of the most northerly of the overhanging branches from tree 4.
4. Prior to the engagement of the arborist, the respondent is to obtain 3 itemised quotes for the above works within 30 days of the date of these orders. That is, the works for each tree are to be itemised separately in the quote. The applicants are to agree to the choice of one of those contractors.
5. The works are to be completed within 60 days of the date of these orders and must be carried out in accordance with AS4373:2007 and the WorkCover Code of Practice for the Amenity Tree Industry.
6. The respondent is to pay the full amount of the works.
7. The applicants are to reimburse the respondent for 50% of the costs of the works on trees 3 and 4 within 21 days of the receipt of a tax invoice for the completed works.
8. The respondent is to give at least 5 working days notice of the works to the applicants, their tenant and the real estate agent.
9. The applicants and their tenant are to provide all reasonable access for the works to be undertaken in a safe and efficient manner.

___________________

J Fakes
Commissioner of the Court