du Plooy v Taylor
[2015] NSWLEC 1072
•13 March 2015
Land and Environment Court
New South Wales
Medium Neutral Citation: du Plooy v Taylor [2015] NSWLEC 1072 Hearing dates: 13 March 2015 Decision date: 13 March 2015 Jurisdiction: Class 2 Before: Durland AC Decision: The application is dismissed
Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage, injury, application dismissed. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW) (2009) Cases Cited: Yang v Scerri [2007] NSWLEC 592
Smith and Hannaford v Zhang & Zhou [2011] NSWLEC 29Category: Principal judgment Parties: C du Plooy (Applicant)
D Taylor (Respondent)Representation: C du Plooy, litigant in person (Applicant)
D Taylor, litigant in person (Respondent)
File Number(s): 21094 of 2014
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
Judgment
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This is an application pursuant to section 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) concerning two trees located on a property at Beaumont Hills. The trees are identified on the application form as Tree 1 and Tree 2.
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The applicant (Mr du Plooy) is seeking orders for the removal of two Ironbarks located on the adjoining property to the rear. The property where the trees are growing is owned by Mr Taylor (the respondent).
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The provisions of section 10(2)(a) of the Trees Act require that I be satisfied that one or more of four tests are met with respect to each tree subject to the application, before I have jurisdiction to consider the application.
These tests are:
Has the tree caused damage to the applicant’s property?
Is the tree now causing damage to the applicant’s property?
Is the tree likely in the near future to cause damage to the applicant’s property?
Is the tree likely to cause injury to a person?
Only if one or more of the tests is satisfied can I move on to consider what orders, if any, I should make in respect to each of the trees.
The Trees
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The trees are located on the respondent’s property within one metre of the common rear boundary fence.
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The canopies of both trees overhang the boundary into the applicant’s property.
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A minor amount of pruning of the overhanging section of the canopies has been undertaken by the applicant over the past 6 years during the time that he has resided at the property.
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By way of background, the applicant mentioned that until three months ago there was a third tree (of the same species) located further to the north on the rear boundary of the respondent’s property. This tree failed at the base in a severe wind storm and fell onto the rear of the respondent’s house.
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The applicant is now concerned that the remaining two trees will also fail at some time. The applicant discussed the fact that the family includes young children who utilise the area under the canopy on a regular basis.
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The respondent stated that the tree that had failed had been in very poor condition with bark missing from the trunk at the base of the tree and described what sounded like an extensive area of decay also at the base of the tree. The applicant did not contest the claim that the tree had been in poor health and condition.
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The applicant does not contend that the two remaining trees have caused or are causing damage to his property. The applicant is concerned that the trees will cause damage to his property or injure a person in the near future.
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Findings in relation to potential branch drop
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The applicant is concerned the trees will shed branches that will cause damage to his property or injury to a person.
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The applicant contends that a number of branches (both live and dead) have fallen from the trees into the rear yard of his property however there was no evidence provided to the Court in this regard.
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The applicant pointed out, and it is agreed, that there is evidence of one branch failure in the canopy of Tree 1. A ‘torn out’ section of the bark can be seen where the branch was attached.
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The applicant also pointed to a ‘bulge’ at a first order branch union in Tree 1 that had been drawn to their attention by an arborist who had attended the site at some time in the past.
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Despite having been made aware of a possible issue within the canopy of Tree 1 there has been no investigation by way of an aerial (climbing) inspection by a qualified arborist to document and provide a detailed assessment of the condition of the upper trunk and canopy of either of the trees. The Court’s standard directions for tree disputes (Direction 13) permit each party and any advising expert to access the other party’s property to undertake a prehearing inspection of relevant matters. In this case, the directions made by the Assistant Registrar on 19 January 2015 included Direction 13. As a consequence, although there is no inspection-based arboricultural evidence provided by the applicant, as discussed immediately above, the applicant did have the opportunity to obtain such evidence from an inspection had he chosen to do so.
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In other words, evidence has not been provided by the applicant that would support the notion that the trees are likely to drop branches that will cause damage to property or injury to a person within the near future.
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In a guidance decision published in Yang v Scerri [2007] NSWLEC 592, as a ‘rule of thumb’, the appropriate timeframe for the ‘near future’ is a period of 12 months. In regards to injury, the Court considers the risk posed by the tree and circumstances of the site at the time of the hearing.
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Findings in relation to potential whole tree failure
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The applicant is concerned that should one or both of the trees fail entirely there will be damage to his property or injury to a person.
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Despite the contention of the applicant that the trees are potentially dangerous and might fall there has been no attempt to substantiate the concerns by way of engaging an arborist to undertake an investigation of the bases of the trunks or roots.
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With the expertise that I bring to the Court I note that there was nothing sighted or evidenced that indicates that either T1 or T2 are likely to fall and cause damage to property or injury to a person in the near future. There was no decay evident or any signs that either of the trunks may be internally decayed, there was no mechanical damage to the lower trunks, there were no signs that the structural integrity of the lower portion of the trunk was compromised or any indication (cracking or heaving of the soil) that the the root plates had been moving.
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The Court requires that there is more than a theoretical possibility of future damage. In Smith and Hannaford v Zhang & Zhou [2011] NSWLEC 29, at [62] Craig J stated that “something more than a theoretical possibility is required in order to engage the power under the Trees Act”.
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There was no evidence provided nor any observations made to confirm the contention that the trees are likely to cause damage to property or injury to a person in the near future. The requirements under 10 (2) of the Act have not been met and therefore no orders can be made regard to the application.
Orders
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On the basis of the foregoing, the Orders of the Court are:
The application is dismissed.
L Durland
Acting Commissioner of the Court
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Decision last updated: 31 March 2015
du Plooy v Taylor [2015] NSWLEC 1072
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