Ellis v Moon

[2008] NSWLEC 1144

Land and Environment Court

of New South Wales

CITATION:

Ellis v Moon [2008] NSWLEC 1144

PARTIES:

APPLICANT
Eric & Elaine Ellis

RESPONDENT
G Moon

FILE NUMBER(S):

21318 of 2007

CORAM:

Thyer AC

KEY ISSUES:

Trees (Neighbours) :- Pruning of a tree, possible damage to property

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

01/04/2008

EX TEMPORE JUDGMENT DATE:

1 April 2008

LEGAL REPRESENTATIVES:

APPLICANT
Eric & Elaine Ellis, litigant in person

RESPONDENT
G Moon, litigant in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Thyer AC

1 April 2008

21318 of 2007

Eric & Elaine Ellis v G Moon

JUDGMENT

The decision was given at the hearing on 1 April 2008.
This written judgment reflects the background information and the findings.

1 ACTING COMMISSIONER: If you hit a six from the little cottage in Cootamundra where Don Bradman was born, the ball might easily hit the branches of the nearby Plane tree and drop onto the garage below. That garage belongs to Mr and Mrs Ellis, and the Plane tree grows in Mr Moon’s backyard.

2 Mr and Mrs Ellis keep their shrubs pruned to the boundaries so they do not intrude on their neighbours. They do not want Mr Moon’s Plane tree pruned back to the boundary but they are concerned about the 5 m overhang of their garage, carport and garden shed, the rapid growth of the tree, and the possible damage if a branch broke.

3 The Plane tree grows at Mr Moon’s family home. His father had pollarded the tree at about 3 m height in the past. It had regrown to its present size of about 14 m high and 14 m spread when Mr Moon moved back into the house 18 years ago. Mr Moon had the tree pollarded more than 10 years ago but has let it grow since then.

4 Mr and Mrs Ellis have requested pruning, and have had some discussions with Mr Moon about the tree in the three years that they have lived next door. Mr Moon had a few branches pruned off their side a year or two ago, but recent discussions have not resulted in the further pruning that they want. They are aware that they could prune branches over their property, but have chosen not to do so.

5 When assessing an application under the Trees (Disputes Between Neighbours) Act 2006 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 before making an order regarding the tree.

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 any person?

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

Is the damage or risk sufficiently serious to warrant the Court intervening?
If so, what should the Court order?
Who should pay to carry out those orders?

The Issues

7 The issues in this case are:

• Has the tree caused, or is it now causing damage ?
• Is the tree likely to cause damage in the near future ?
• Is the tree likely to cause injury ?

Has the tree caused, or is it now causing damage ?

8 One twig of about 1 cm diameter and its leaves are rubbing on the metal roof of the Ellis’ garage. The rubbing has polished the metal but not caused any damage requiring repair.

Is the tree likely to cause damage in the near future ?

9 There are some small branches of about 2 cm diameter close to the garage, carport and shed. These may touch the structures in windy conditions but are unlikely to cause damage. There are no branches larger than 3 cm diameter within 1.8 m of the structures.

10 Pollarding of trees is often discouraged because the resulting branch growth may be weakly attached, and there is increased risk of disease and decay. However, many trees are pollarded in country areas of NSW, and in colder climates around the world to allow maximum winter sunlight, and to produce smaller, rounded tree canopies in summer.

11 Mr Moon’s tree has grown for at least 10 years since it was last pollarded. Many of the branches are larger than 10 cm diameter, and no branches have broken out since it was pollarded. No disease or decay was seen in the area of branch attachment to the trunk, and although some branches are co-dominant, no included bark was observed.

12 No evidence was provided or observed that the tree is likely to drop branches or cause damage in the near future.

Is the tree likely to cause injury ?

13 As there is no evidence that the tree is likely to cause damage in the near future, and as Mr Moon agreed at the hearing to have an arborist do some work on the tree, I find it unlikely that the tree will cause any injury.

Conclusion

14 I find that the tree has not caused damage, and is unlikely to cause either damage in the near future or injury if Mr Moon has an arborist attend to the tree from time to time. Therefore none of the four tests in s 10(2) (a) and (b) of the Act are met, and I am obliged to dismiss the application. However, I am pleased to note that during the hearing the parties reached an agreement for pruning of the tree, so I dismiss the application noting the following agreement.

Agreement of the parties
1) That the Plane tree will be pruned at least 1.8 m clear of the garage, carport and garden shed which are located in the backyard of Mr and Mrs Ellis’ home, and the prunings removed from their property;
2) The pruning shall be done by an arborist having AQF Level 3 qualifications or reasonably equivalent skills and knowledge, and suitable insurances, selected by Mr Moon;
3) The pruning work shall be done in accordance with AS 4373 2007 Pruning of amenity trees ;
4) The pruning and associated work shall be at Mr Moon’s cost;
5) Mr Moon shall attempt to have the work done by 31 May 2008, but if it is not, then as soon as possible after that date;
6) Mr and Mrs Ellis shall provide access for the pruning work at a reasonable time and on reasonable notice, and may supervise the work;
7) Mr Moon shall advise the proposed date of the pruning to Mr and Mrs Ellis as soon as possible.

___________________

Peter Thyer
Acting Commissioner of the Court