Connolly v Imbruglia - [2009] NSWLEC 1047

Land and Environment Court

of New South Wales

CITATION: Connolly v Imbruglia and Ors [2009] NSWLEC 1047

PARTIES:
APPLICANT
Nicole and Edward Connolly
RESPONDENT
Stephanie Imbruglia, Jemimah Lawrence and Samual Stefano

FILE NUMBER(S): 21097 of 2008

CORAM: Thyer AC

KEY ISSUES: TREES (NEIGHBOURS) :- Deadwood removal and ariel inspection of both trees, and repair of fence

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING: 28/01/2009

EX TEMPORE JUDGMENT DATE: 28 January 2009

LEGAL REPRESENTATIVES:
APPLICANT
Nicole and Edward Connolly, litigants in person
RESPONDENT
Stephanie Imbruglia, Jemimah Lawrence and Samual Stefano, litigants in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Thyer AC

28 January 2009

21097 of 2008

Nicole and Edward Connolly v Stephanie Imbruglia, Jemimah Lawrence and Samual Stefano

JUDGMENT

1 ACTING COMMISSIONER: Two large Eucalyptus trees, both about 18 m tall, are growing in the backyard of 165 Willandra Road, Cromer, (the property) which is owned by Ms Imbruglia, Ms Lawrence and Mr Stefano. Both trees are growing adjacent the rear boundary fence and overhang the adjoining property to the east. The trunk of the northern tree, a Tallow-wood (Eucalyptus microcorys) has damaged the paling fence on the common boundary. The southern tree, a rough-bark Eucalypt (Eucalyptus sp.) has dropped two live branches in the last two months and various dead wood previously.

2 Mr and Mrs Connolly are the owners 7 Milpera Place, Cromer, the adjoining property to the east. They have lived there for 18 months. They make their application under the Trees (Disputes Between Neighbours) Act 2006 to rectify and prevent property damage and for compensation for damage to the boundary fence. They seek orders that the trees be removed because they consider them to be enormous and dangerous, and that the fence be replaced, all at the cost of the owners of the trees. The two live branches fell from the southern tree since the application was made, increasing the fears of Mr and Mrs Connolly that the trees are dangerous.

3 Ms Lawrence represented the owners of the trees at the hearing. She claims that the trees are normal healthy trees, no more of a menace than other trees in the area. She has lived in the property for almost 20 years and had no problem with prior neighbours regarding the trees. She says that the live branch that fell into the Connollys’ property in December 2008 was during days of strong wind and rain. Ms Lawrence states that she has had the trees inspected by three arborists and has had one of those carry out some pruning work. She is willing to carry out further recommended pruning at her cost, but thinks that the fence should be repaired at shared cost with Mr and Mrs Connolly.

4 Mrs Lawrence provided an arborist’s report dated 20 November 2008 by Mr Kyle Hill, and Mr Hill attended the hearing.

5 Warringah Council was represented at the hearing by Jason Goldstein, Trees Assessment Officer, and Antonio De Abreu, Assistant Trees Assessment Officer.

6 When assessing an application under the Act, the Court must be satisfied that one or more of the four tests in s 10(2) (a) and (b) of the Act are met by each tree before making an order regarding that tree. These tests are:

7 Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of:

8 Further, before determining an application, the Court is to consider the matters in s 12 of the Act.

Background

9 The trees were growing on the property when Ms Lawrence purchased the property about 20 years ago. She says that small dead branches fall in windy weather, and a few larger dead branches up to 2 m long have fallen over the years.

10 In 2001 Warringah Council issued a permit to prune 15 % of both trees. That pruning was carried out.

11 Mr and Mrs Connolly purchased their property 18 months ago in about July 2007. They say the property was very overgrown and unkempt. They have removed much vegetation from the backyard, and have recently removed a large area of paving, laid grass over most of the backyard, and installed a garden bed at their back fence under the trees. They have been watering the yard to establish the grass and garden.

12 In October 2007 Mr and Mrs Connolly had the southern tree pruned. Two large live branches of about 200 to 250 mm diameter were pruned, one from the north-eastern trunk, and one from the south-eastern trunk. That pruning removed a substantial amount of the tree that overhung their property. I understand that Ms Lawrence had a branch pruned from her side of the tree at that time also.

13 Mr Hill inspected the trees in November 2008 and prepared a written report dated 20 November 2008. He described the southern, rough bark tree as mature age, with good health and good vigour, and long useful life expectancy. He also noted:

Tree is multi trunk (co-dominant stems)
Previous large diameter pruning
No large diameter previous branch failures
Small to medium diameter dead wood
Branch tip dieback
Total volume is not interpreted as being significant symptom of stress
There is a cavity in one of the trunks, occupied by small parrots.

14 Mr Hill described the northern, Tallow-wood tree as mature age, with good health and good vigour. He also noted:

No significant diameter previous branch failures
One potentially weak branch/stem junction
Foliage colour and density is good
Useful life expectancy is long
Previous large diameter pruning is noted.

15 Mr Hill made the following recommendations regarding the trees in that report:

Have tree inspected on a two year cycle by an AQF level 5 arborist
Remove (immediately) deadwood greater than 50 mm diameter
Aerially inspect cavity, and stem junction (E. microcorys), also look for any unidentified defects.

16 In early December 2008 a live branch about 100 mm diameter broke on the north-eastern trunk of the southern tree, at a location about 4 m above the pruning cut from two months earlier. The Connollys saw the branch hanging in the tree and say that it reached down to the fence. The branch is shown in photographs included in the application. I observed in the photographs that the branch was about 10 m long, heavily end weighted, without foliage or small branches along the majority of its length. It was broken about 1 m out from its junction with the trunk, and remained attached by torn and twisted wood and bark. At the hearing Mr Hill stated that he does not consider this branch failure to be typical of ‘summer branch drop’. It is my assessment that this branch probably broke due to wind stress, and broke when it did because of the period of wet, windy weather, and exposure after removal of the nearby branch.

17 On 24 January 2009 at about 2 pm, a live branch about 80 mm diameter fell from the south-western trunk of the southern tree into Ms Lawrence’s property. That being only four days before the hearing, the branch was still in the backyard where it fell. The branch is about 6 m long, and the break does not have a long tear or jagged wood fibres. Mr Hill considers this branch failure to be typical of ‘summer branch drop’.

18 When asked, Mr Goldstein and Mr De Abreu of Warringah Council explained that they apply a common management approach to branch failure in trees, that being that if a tree has three unexplainable failures of significant sized branches, they consider the tree dangerous. I understand their opinion and that of Mr Hill to be that the wind torn branch failure in December 2008 is explainable and not an indication of danger, but the recent ‘summer branch drop’ failure is the first unexplainable failure. On that basis, if the tree were under their management, they would retain it at present.

19 The southern tree is not in contact with the fence, and The Connollys do not claim that it has damaged the fence.

20 The lower trunk of the northern, Tallow-wood tree is in contact with the fence, and the fence is bowed out adjacent the tree. Pressure from the tree has opened gaps between palings and posts where the rail joints have come apart. The actual damage may be recent, but I observed that some effort had been made in the past, either when the fence was built or at some later time, to construct the fence around the tree and over the base of the tree trunk.

Findings

21 I find that falling dead wood from both trees is likely to cause injury and therefore both trees meet the test in s 10(2)(b) of the Act, and I will order removal of dead wood from the trees.

22 I find that the pruning carried out in October 2008, and the landscaping changes and water regime changes in the Connollys’ backyard may be significant factors in the recent failure of two branches.

23 I do not find that the southern tree presents a level of danger that would generally recommend its removal. Further, I recognise that Warringah Council has a tree management approach that would not permit removal of the tree at this time. For these reasons I will not order removal of the tree, but will order that the tree be aerially inspected when the dead wood is removed.

24 I do not find that the northern, tallow-wood tree is dangerous simply because of its size. However as Mr Hill noted one potentially weak branch/stem junction in the crown, I will order that the tree be aerially inspected when the dead wood is removed.

25 I find that the northern, tallow-wood tree has damaged the timber paling dividing fence. I find that the tree is the only cause of damage, and on that basis I will order that the owners of the tree repair the fence at their cost. I will specify the repair to be in a manner that allows for some growth of the tree without further damage to the fence. I find that gaps between palings away from this tree, that the Connollys consider to be damage, is normal shrinkage and movement of palings.

Considerations

26 Under s 12 (d) of the Act, I note that the trees are Australian native species and are likely to contribute to the local ecosystem. I also note that Mr Hill observed small parrots occupying a cavity in the southern tree.

27 Under s 12 (e) of the Act, I note that the trees contribute to the scenic value of the property, and the surrounding local area.

28 Under s 12 (f) of the Act, I note that the trees provides intrinsic value through oxygen production, carbon sequestration, cooling summer shade, and deflection and dispersal of strong winds.

29 Under s 12 (g) of the Act, I note that the roots of the trees are likely to stabilise the soil where the ground level changes between the Connollys’ and Ms Lawrence’s property.

Orders

30 The application is upheld in part, and the Court makes the following Orders that apply to 165 Willandra Road, Cromer:

AS 4373-2007 Pruning of Amenity Trees

___________________

Peter Thyer

Acting Commissioner of the Court

CITATION:	Connolly v Imbruglia and Ors [2009] NSWLEC 1047
PARTIES:	APPLICANT Nicole and Edward Connolly RESPONDENT Stephanie Imbruglia, Jemimah Lawrence and Samual Stefano
FILE NUMBER(S):	21097 of 2008
CORAM:	Thyer AC
KEY ISSUES:	TREES (NEIGHBOURS) :- Deadwood removal and ariel inspection of both trees, and repair of fence
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
DATES OF HEARING:	28/01/2009
EX TEMPORE JUDGMENT DATE:	28 January 2009
LEGAL REPRESENTATIVES:	APPLICANT Nicole and Edward Connolly, litigants in person RESPONDENT Stephanie Imbruglia, Jemimah Lawrence and Samual Stefano, litigants in person