Fancourt v Welsh

[2007] NSWLEC 813

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:    Fancourt v Welsh [2007]  NSWLEC 813

PARTIES:
APPLICANT
Geoffrey Fancourt

RESPONDENT
P. G. Welsh

FILE NUMBER(S):    20819  of        2007

CATCHWORDS:       Trees (Neighbours) :- application for removal of  trees

LEGISLATION CITED:
Trees (Disputes Between Neighbours) Act 2006

CASES CITED:

CORAM:        Murrell CFakes AC

DATES OF HEARING:          30/11/2007

EX TEMPORE DATE:           30 November 2007

LEGAL REPRESENTATIVES

APPLICANT
Mr G. Fancourt, litigant in person

RESPONDENT
P. G. Welsh, litigant in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C
Fakes AC

30 November 2007

20819 of 2007     Fancourt, G. v Welsh, P.G

JUDGMENT

1. This is an application pursuant to s7 of The Trees (Disputes Between Neighbours) Act 2006. An application has been made by Mr Fancourt of 6 Fairway Drive Bowral concerning four (4) Pinus radiata (Radiata Pine) trees owned by Mr Welsh of 24 Centennial Road Bowral. The applicant seeks the removal of the four trees as he contends that the trees are a risk to life and property.

1. The owner of the trees wishes the trees to remain and contends that he has taken steps to abate any potential risk.

1. The trees are four Pinus radiata located approximately 2.8 m from the property boundary and 4 m from 2 sheds on the applicant’s property. Some branches do overhang these sheds. The trees are approximately 90 years old and are reaching the end of their useful life however under s12 of the Act a number of matters must be considered.

1. The trees do make some contribution to the overall amenity of the area, and as a group of trees, are part of the character of this part of Bowral. Also under s12 we note that the owner has taken steps to abate some of the problems by having the lower branches of these trees removed and many other trees removed entirely. However, some upper branches remain that overhang the applicant’s out-buildings.

1. The applicant is concerned that apart from potential damage to the sheds, Mr Fancourt is also concerned about possible injury to himself and anyone else who may be in the shed. As Mr Fancourt is retired, he spends a significant amount of time in the shed working on various hobbies. He informed the Court that pinecones do fall from the trees particularly when birds are in the trees, that the gutters get blocked and that the roots have caused some damage to his property. He is not seeking any action on the pinecones, leaves or roots. His main concern is that the branches or trees may fail in the wind. There is evidence that branches have failed. There is a branch from one of these trees, tree number four, that has failed but away from the property boundary. Mr Fancourt told the Court that approximately 2 years ago, a branch of another Pine tree fell onto one of his boundary fences. This tree is not subject to this application.

1. Under s 10.2 of the Act the Court must be satisfied that the trees have caused, are causing, or could, in the near future, cause damage to property or injury to persons. In this respect there is evidence of branch failure and the Court is satisfied that damage to property or injury to persons may occur however we feel that there is insufficient evidence to require the removal of the trees.

1. Nonetheless we consider it is appropriate to make orders that require further pruning and further maintenance of those trees. Specifically the orders will be that for tree 1, that being furthest away from the owner’s residence and which overhangs the garden shed, the 3 branches that remain over this shed shall be removed. We do not feel that anything at this stage should happen to tree 2 in that there is nothing that would, we think, in the near future cause injury or damage. In terms of tree 3, there are 3 major branches towards the applicant’s property that are to be removed. Tree 4 is furthest away from the applicant’s property and all that we will be ordering for that tree is the removal of a hanging branch.

1. These works are to be done within 60 days of the date of the orders and this work is to be conducted by someone appropriately qualified, that is to AQF Level 3 in Arboriculture and with appropriate insurances. At that time, any other deadwood greater than 50 mm in diameter within three metres of this boundary is to be removed. Similarly, any branches that the Arborist feels are likely to fail onto the applicant’s property within the next 12 months should also be removed. All pruning must be carried out in accordance with AS4373:2007 – Pruning of Amenity Trees. These costs are to be borne by the owner of the trees.

1. The pruning works required are described in detail as the weather conditions on the day of the hearing resulted in the photographs being unclear.

1. Accordingly the formal orders of the Court are:

   1.Pruning is to be carried out on three of the 4 trees the subject of this application.

   (a)On tree 1, that being the tree furthest from the owner’s residence and which overhangs the applicant’s garden shed, the 3 branches that remain over that shed are to be removed. Any remaining dead wood over 50 mm in diameter within 3 m of the boundary is to be removed. Any remaining branch, deemed by the arborist carrying out the work, that could fail onto the applicant’s property within the next 12 months shall also be removed.

   (b)          No works are to occur to tree 2.

   (c)On tree 3, the 3 largest limbs over-hanging the applicant’s workshop are to be removed. Any remaining dead wood over 50 mm in diameter within 3 m of the boundary is to be removed. Any remaining branch, deemed by the arborist carrying out the work, that could fail onto the applicant’s property within the next 12 months shall also be removed.

   (d)The hanging branch in tree 4 is to be removed. No other works are required on this tree.

   2.The above work is to be carried out by a person with an AQF level 3 qualification in Arboriculture and with appropriate insurances.

   3.The owner of the trees is to engage the arborist and pay for these works,

   4.This work is to be carried out within 60 days of the date of these orders.

   ___________________

   J Murrell
   Commissioner of the Court

   ___________________

   J Fakes
   Acting Commissioner of the Court

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