Crannis v Flood

[2007] NSWLEC 503

Land and Environment Court

of New South Wales

CITATION:	Crannis v Flood [2007] NSWLEC 503
PARTIES:	APPLICANT Frederick Crannis RESPONDENT Terry Flood
FILE NUMBER(S):	20564 of 2007
CORAM:	Moore C
KEY ISSUES:	Trees (Neighbours) - Neighbour Application :-
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
DATES OF HEARING:	10 August 2007
EX TEMPORE JUDGMENT DATE:	10 August 2007
LEGAL REPRESENTATIVES:	APPLICANT In person RESPONDENT In person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

10 August 2007

07/20564 Frederick Crannis v Terry Flood

JUDGMENT

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

1. COMMISSIONER: This is an application made pursuant to s 7 of the Trees (Disputes Between Neighbours) Act2006 (the Act).

2. The application is made by Mr Crannis, a resident of 10 Caroline Street, Orange concerning a tree on a neighbouring property, 14 Rose Street, owned by Mr Flood.

3. The tree is a Himalayan Cedar (Cedrus deodara) (the tree) which is approximately 18 m tall. It has equally tall co-dominant leaders which join approximately 2.5 m above the ground.

4. The tree has, in the past, lost a significant branch towards Mr Crannis’s property. The junction of that now removed branch and the trunk of the tree exhibits significant signs of included bark between that branch and the adjacent leader at the point of failure. This appears to have caused the failure.

5. There is no sign of included bark in the junction between the two leaders. The other significant branch which overhangs the fence and part of Mr Crannis’s property also has no signs of included bark.

6. This branch and all other significant branches exhibit strong attachment to the tree.

7. I examined the junction of the two leaders by climbing a ladder and inspecting the junction to see whether there is any decay or sign of fungal problem in that junction. I also looked more closely for symptoms of included dark and reaction wood at this junction. There are no signs of any of these defects.

8. As a consequence of that, there is no basis upon which I could be satisfied, as required by s 10(2)(a) of the Act, that it is likely, in the near future, that the tree will cause damage to Mr Crannis’s property.

9. Mr Flood has agreed to discuss with Mr Crannis the removal two branches which, in a longer-term tree management sense, it might be prudent to remove. Mr Flood will need to make arrangements for access to Mr Crannis’s property to do so. However, such removal is a matter for them to consider between them rather than requiring the Court’s involvement.

10. As to the branch which fell partially into Mr Crannis's property and partially on Mr Flood's property, I am not satisfied that there is any damage arising from that limb failure which would warrant intervention with the tree. Only one paling of the fence was damaged on that occasion.

11. In light of my findings about the present state of the tree, the inevitable result is that none of the tests pursuant to s 10(2) of the Act are satisfied. The application is therefore dismissed.

Commissioner of the Court