Fok v Leverett

[2016] NSWLEC 1499

Land and Environment Court

New South Wales

Medium Neutral Citation:	Fok v Leverett & anor [2016] NSWLEC 1499
Hearing dates:	24 October 2016
Date of orders:	24 October 2016
Decision date:	24 October 2016
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is upheld. See orders at (14).
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS); damage; orders for pruning one tree.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Category:	Principal judgment
Parties:	Bill Fok (Applicant) Nigel Leverett (First Respondent) Erin Leverett (Second Respondent)
Representation:	Maria Fok, agent (Applicant) Nigel and Erin Leverett (Respondents)
File Number(s):	199586 of 2016

Judgment

Background

1. Mr Fok (‘the applicant’) has applied to the Court pursuant to the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’) seeking orders for two neighbouring trees to be removed.

2. Mr Fok says the trees pose a risk of damage to his property and a risk of injury to people on the property. He is concerned about branches falling and about the height of the trees. He is concerned that one tree is on a slight lean toward his property.

3. Mr and Mrs Leverett (‘the respondents’) own the neighbouring property on which the trees grow. They do not wish to remove the trees. They say the trees provide shade, amenity and habitat, and that they reduce winds. They say they get arborists to inspect and prune the trees and to advise them of the trees’ condition. They say they would remove the trees if they were convinced that was needed.

4. Neither party obtained expert evidence. Bringing my own arboricultural expertise and experience I inspected the trees during the onsite hearing. Such a ground-based inspection naturally provides a more limited assessment of the trees than a full aerial inspection.

The trees

5. Both trees grow in the Leveretts’ back yard, well away from dwellings. Canopies do not overhang dwellings, only garden areas and one end of Mr Fok’s swimming pool. Branches extend only a short way across the common boundary and above Mr Fok’s property.

Tree 1

6. The Lemon-scented Gum (Corymbia citriodora), Tree 1 in the application, is farthest from Mr Fok’s dwelling. It is over 20 metres tall and is in good condition. Its crown form is typical for the species. There is only minor deadwood present in the crown. Some broken branch stubs indicate previous failure of limbs up to ~150 mm in diameter. No major structural defects are apparent in the tree.

Tree 2

7. The Liquidambar (Liquidambar styraciflua), Tree 2 in the application, is almost 20 metres tall and is in good condition with typical crown form for the species. Its stem divides into two, approximately a metre above ground level, but there are no external signs of weakness at this bifurcation.

Can the Court make orders for these trees?

Tree 1

8. In June 2016, during the severe storms that swept across Sydney causing extensive damage, Mr Fok says a branch from the gum tree fell onto his roof, breaking tiles and allowing water to affect the ceiling. Mr Fok had to deal with this at the time because the SES was unavailable.

9. There is no other likely cause of this damage. Mr Fok has retained broken tiles and the tree branch. I accept that the gum tree (Tree 1) has caused damage to Mr Fok’s property, thus enlivening the Court’s jurisdiction with regard to this tree. Orders can be made to prevent this tree causing damage or injury.

Tree 2

10. Despite the applicant’s concerns, there is no evidence that the Liquidambar has caused damage to his property, or is likely to cause damage or injury in the near future. His daughter explained that Liquidambar suckers or seedlings sometimes appear in the garden, but this does not equate to damage.

11. The applicant says that extreme weather events are now the norm. Such a general statement does not provide the evidence required to satisfy the Court that the trees are likely to cause damage.

12. Tree 2 does not satisfy the jurisdictional tests at s 10(2) of the Trees Act, so no orders can be made in relation to this tree.

What orders are required for Tree 1?

13. Based on my observations, there is no reason to remove Tree 1. Some of its branches overhang one end of the applicant’s swimming pool. They are long slender limbs that, for this species, are sometimes prone to failure. Should they fall, they could cause injury. Pruning to reduce overhang would minimise the risk of injury. These limbs do not extend far across the boundary, so pruning once every five years should suffice.

Orders

14. Considering the foregoing, the application is upheld and the Court orders that:

1. Within three months of the date of these orders, the respondents are to engage at their cost a suitably qualified arborist (minimum AQF level 3) with appropriate insurances to prune the gum tree (Tree 1) as follows:

1. remove all deadwood greater than 20 mm in diameter in the southern half of the crown;

2. remove any hazardous limbs in the southern half of the crown;

3. reduce limbs overhanging the applicant’s property by pruning to lateral branches, but removing no more than 5% of live crown mass.

2. The works in (1) are to be done in accordance with AS4373 Pruning of amenity trees and the WorkCover NSW Code of practice for the amenity tree industry.

3. Every five years, within 30 days either side of the anniversary of the date of these orders, the respondents are to engage at their cost a suitably qualified arborist (minimum AQF level 3) with appropriate insurances to carry out the pruning specified above in (1).

4. For each pruning event ordered above in (1) and (3), the respondents are to give the applicant at least 7 days’ notice of the works.

5. The applicant is to allow any access necessary for the works ordered above in (1) and (3) to be done during reasonable hours of the day.

____________________________

D Galwey

Acting Commissioner of the Court

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Decision last updated: 31 October 2016