Cloake v Nolan-Neylan

[2019] NSWLEC 1105

Land and Environment Court

New South Wales

Medium Neutral Citation:	Cloake v Nolan-Neylan [2019] NSWLEC 1105
Hearing dates:	12 March 2019; 14 March 2019
Date of orders:	14 March 2019
Decision date:	14 March 2019
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	(1)   Within 60 days of the date of these orders, the respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances to carry out the following pruning works on the two trees: (a)   On the southern tree remove the large limb with damage at its base, back to its branch collar at the stem (see photos at [9]); (b)   Remove deadwood greater than 50 mm diameter throughout the crowns of both trees; (c)   On the northern tree remove low branches with foliage touching the applicant’s roof; (d)   Reduce branches overhanging the applicant’s property, removing no more than 10% of live foliage. (2)   The works are to be done in accordance with the guidelines of AS4373 Pruning of amenity trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry. (3)   The respondent is to give the applicant two days’ notice of the works. (4)   The applicant is to allow access to her property necessary for carrying out the works during reasonable hours of the day. (5)   If within 60 days of the date of these orders the works in order (1) are not done, the applicant has a further 60 days to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances to complete the pruning works described in order (1). (6)   If order (5) is engaged, within 7 days of receiving a receipted invoice for the completed pruning works in (5), the respondent is to pay the applicant the amount of that invoice.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – risk of damage or injury – orders for pruning
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 (NSW)
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292
Texts Cited:	AS4373 Pruning of amenity trees WorkCover NSW Code of Practice for the Amenity Tree Industry
Category:	Principal judgment
Parties:	Melva May Cloake (Applicant) Barbara Nolan-Neylan (Respondent)
Representation:	K Cloake, agent (Applicant) B Nolan-Neylan, litigant in person (Respondent)
File Number(s):	2018/366097
Publication restriction:	No

Judgment

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

The application

1. Melva May Cloake (‘the applicant’) made an application to the Court, pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’), seeking orders for the removal of two neighbouring trees that overhang her Young property.

2. Ms Cloake fears the trees will fall onto her dwelling. She finds the amount of debris that falls onto her garden and roof excessive.

The trees

3. The two trees grow on the property of Barbara Nolan-Neylan (‘the respondent’), close to her common boundary with Ms Cloake’s property and overhanging Ms Cloake’s dwelling.

4. Ms Cloake obtained a report on the two trees from Wade Ryan, an arborist. Mr Ryan described the trees as healthy Eucalyptus mannifera (Red-spotted Gum or Brittle Gum). Apart from some localised decay in the southern tree, he found no structural defects and concluded the trees have a low level of risk for causing damage or injury. He was of the view that risk was not a reason to remove the trees. Mr Ryan acknowledged that debris falls from the trees and that Ms Cloake finds the resulting maintenance onerous.

5. Ms Cloake’s dwelling, one of three units constructed about 10 years ago, is only 2 metres from the northern tree. Mr Ryan noted that the dwelling could have been constructed further from the tree. Although tree roots may have been affected at the time, Mr Ryan found no signs of instability. He thought the risk of whole tree failure was unlikely.

6. Mr Ryan recommended some pruning of the outer canopy of the trees to reduce overhang.

Hearings and submissions

7. At the onsite hearing on 12 March Ms Nolan-Neylan was absent due to a misunderstanding around the hearing time. Mr Kevin Cloake, the applicant’s son, represented his mother. He explained Ms Cloake’s fear that the trees will fall onto and damage her dwelling. He described the onerous task of cleaning debris from the garden, roofing and guttering. He said branches that fall in the garden are a trip hazard.

8. A telephone mention on 14 March gave Ms Nolan-Neylan the opportunity to make submissions. She explained that she liked the trees when she bought her property and does not want to remove them. She has lived near larger gum trees without issues. Possums use the trees.

Findings

9. I find the information in Mr Ryan’s report to be generally accurate. The risk of total tree failure is low. A long limb on the southern tree extending over Ms Cloake’s dwelling has damage at its base (my photos below). Its attachment at the stem is narrow and may contain some ‘included bark’. Decay may spread into the stem from the wound in the fork. The risk of this limb failing is sufficient that action should be taken.

10. Other hazards that are likely to cause damage in the near future include overextended limbs, deadwood, and low branches with foliage hitting Ms Cloake’s dwelling roof. Pruning to remove these hazards will not adversely affect the trees.

11. Pruning can minimise the risk of branches falling onto Ms Cloake’s property, causing injury or damaging her dwelling. Tree removal is not required. Apart from minimising costs to Ms Nolan-Neylan, there are other reasons to avoid tree removal if possible. The trees contribute to public amenity. They provide habitat and contribute to the local ecosystem.

12. Ms Cloake may find the task of cleaning up debris from the trees onerous, but there is no evidence that debris has caused damage to her property. If twigs and small branches in her garden are a trip hazard, this could be avoided through routine maintenance and is not a reason to interfere with the trees. My finding here is consistent with the principle established by the Court in Barker v Kyriakides [2007] NSWLEC 292 at [20]:

“For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis.

The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree.”

Conclusions

13. The applicant has made reasonable effort to reach agreement with the owner of the trees. I am satisfied that branches are likely to fall from the trees in the near future and cause damage, most likely to the roof of Ms Cloake’s dwelling. According to s 10 of the Trees Act I can make orders. As explained above, tree removal is unnecessary so pruning will be ordered.

Orders

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

1. Within 60 days of the date of these orders, the respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances to carry out the following pruning works on the two trees:

1. On the southern tree remove the large limb with damage at its base, back to its branch collar at the stem (see photos at [9]);

2. Remove deadwood greater than 50 mm diameter throughout the crowns of both trees;

3. On the northern tree remove low branches with foliage touching the applicant’s roof;

4. Reduce branches overhanging the applicant’s property, removing no more than 10% of live foliage.

2. The works are to be done in accordance with the guidelines of AS4373 Pruning of amenity trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry.

3. The respondent is to give the applicant two days’ notice of the works.

4. The applicant is to allow access to her property necessary for carrying out the works during reasonable hours of the day.

5. If within 60 days of the date of these orders the works in order (1) are not done, the applicant has a further 60 days to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances to complete the pruning works described in order (1).

6. If order (5) is engaged, within 7 days of receiving a receipted invoice for the completed pruning works in (5), the respondent is to pay the applicant the amount of that invoice.

____________________________

D Galwey

Acting Commissioner of the Court

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Decision last updated: 15 March 2019