Fraus v Xu
[2018] NSWLEC 1176
•05 April 2018
Land and Environment Court
New South Wales
Medium Neutral Citation: Fraus v Xu [2018] NSWLEC 1176 Hearing dates: 5 April 2018 Date of orders: 05 April 2018 Decision date: 05 April 2018 Jurisdiction: Class 2 Before: Douglas AC Decision: The appeal is upheld in part. See orders at paragraph [23]
Catchwords: TREES [DISPUTES BETWEEN NEIGHBOURS] : risk of failure; damage; injury. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: Ms Ruiran Fraus (Applicant)
Mr Shangjie Xu (Respondent)Representation: Litigant in person (Applicant)
Litigant in person (Respondent)
File Number(s): 2018/12548 Publication restriction: No
Judgment
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
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COMMISSIONER: This is an application, pursuant to s 7 of the Trees (Disputes between Neighbours) Act 2007 by Ms Fraus of 116 Campbell Drive, Wahroonga concerning three trees, a Cypress tree (Cupressus sp) and two Gum trees (Eucalyptus piperita) located on the next door property at 118 Campbell Drive, Wahroonga. The properties share a common driveway entrance covering an area of approximately thirty square metres. Beyond this common area, Ms Fraus’ driveway curves to the north-north east and terminates in a concrete pad to the west of their house entrance, while Mr Xu’s driveway extends east-south east up a fairly steep slope for perhaps thirty metres. Mr Xu’s house sits at the end of this driveway above a set of stairs higher up the slope.
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The east-west boundary between the properties terminates on the eastern side of this common driveway entrance and the Cypress tree is located approximately one metre south-south east of this property corner. Gum tree 1, is located approximately five metres east of the common driveway area in a raised garden bed, on the southern side of Mr Xu’s driveway. Gum tree 2 is located in the same raised garden bed, also on the southern side of Mr Xu’s driveway, approximately three metres further east than the first.
The applicant’s case
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Ms Fraus seeks an order that the Cypress tree be removed and that the dead branches on the Gum trees be pruned. Her application relates to what she considers to be the risk of failure of the Cypress tree by uprooting, and it falling on her house and/or car and/or injuring her children, who play in this area. She is also seeking an order for branches, which she has identified as dead and which are touching power lines, to be pruned on the basis that they represent a grave fire danger.
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With respect to the Gum trees, her application relates to the risk of failure of dead branches which overhang Mr Xu’s driveway but which she claims are sufficiently close to her property to injure her children playing nearby on the common driveway area.
The respondent’s case
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This proposed order is resisted by the owner of the tree, Mr Xu, who believes the requested removal of the Cypress is part of an attempt by Ms Fraus to increase and widen the access route to the front of her property from the section of the bottom of the driveway which is common property.
Jurisdictional requirements
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With respect to s 7, an owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land.
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The Court is obliged to consider a number of matters pursuant to s 10 of the Act.
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I am satisfied, first, that there has been an attempt by the applicant to reach agreement with the owner of the land on which the trees are situated, notwithstanding that their views differ, that their relationship is acrimonious, and that this attempt has been unsuccessful.
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Second, the major test that is posed, by s 10(2) of the Act, is that the Court has to be satisfied that the tree concerned has caused, is causing or is likely, in the near future, to cause damage to the applicant’s property or is likely to cause injury to any person.
Findings
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I have carefully inspected the tree and have read and considered all of the material that has been provided to me.
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I have concluded that, on the general question of safety of the tree, no cause has been made out pursuant to section 10(2) that would warrant an order for removal of the tree in its entirety.
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The Cypress tree is clearly alive and appears healthy, although it is growing in less than ideal light intensity, and thus has reduced foliage density.
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Unless there is clear evidence that indicates otherwise, a tree growing in a protected location would not normally be prone to uprooting.
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With respect to seeing such evidence, no cracking of the surrounding soil surface, or heaving of the base of the trunk / primary root plate is apparent. There is ample wind protection provided by surrounding dense, high canopy cover, and the resultant reduced foliage density constitutes a minimised sail, thus likely further reducing the impact of even strong wind. Therefore, there is no obvious risk of failure of the Cypress tree by uprooting in a range of normal climatic conditions.
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I have also considered each of the elements of that part of the major trunk system of the Cypress tree, which is overhanging or may fall in the direction of Ms Fraus’ property.
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The Cypress tree has a single trunk to approximately 2.5 metres from ground level at which point it divides into two major leaders/branches and about six minor leaders/branches. All of these leaders are fairly vertical, notwithstanding that the tree is growing with a lean of about 15 degrees towards the north.
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Most of the leaders/branches are alive and healthy, appear to have normal attachment to the main trunk and do not appear to have caused, to be causing or are likely, in the near future, to cause damage to the applicant’s property or to be likely to cause injury to any person. There are two small leaders/branches, however, that are not likely to damage property, but which satisfy the test 10(2) with respect to risk of injury in the near future, where in the near future may be considered as a “rule of thumb” to be 12 months. Yang v Scerri[2007] NSWLEC 592
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These two leaders/branches are located on the most southern side of the trunk and thus can be clearly identified. One is dead, is approximately 4 metres long, about 100mm diameter at its base and divides into 2 secondary branches. It protrudes in a north westerly direction over the intersection of the shared driveway and Ms Fraus’ car parking area. The second leader/branch is alive, thicker than the first, about 7 metres tall and is distinguished by an indented wound and cavity about 3.5 metres above ground level, which is the basis of my findings. It is approximately 140mm in diameter at its base. Both these leaders/branches should be removed.
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While Campbell Drive, Wahroonga is located in a bushy area with associated risk of fire, the Cypress tree does not represent a “grave bushfire danger” referred to in point 1 of Ms Fraus’ proposed orders on page 3 of her Tree Dispute Application. Similarly, the branches touching the insulated electricity wires referred to in point 2 of her proposed orders on page 4 of her application are not dead and are merely small twigs, and do not present the “grave fire danger” that she suggests. Removal of the branches is reasonable to clear them from the electricity wire, however only very minor pruning is required, and as section 10(2) has not been engaged, no orders for pruning this branch are appropriate.
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With respect to Gum tree 1, three dead branches satisfy the test posed by s 10(2) with respect to risk of injury in the near future, notwithstanding that the branches only just extend over the shared driveway entrance and that the risk is fairly low. The identification of these branches is again obvious. They are the lowest on the tree, two are approximately 5 metres long and about 40mm at the branch collar, while the third is about 3 metres long and only around 20mm at the collar, but it is closer to the shared driveway area.
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Gum tree 2 is sufficiently distant from the applicant’s property that there is no canopy overhang and no orders related to it are appropriate.
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During the proceedings, Mr Xu advised all parties present that his family were planning on moving elsewhere. Should they sell the property and move prior to the following orders being carried out, the orders will be binding on the title of 118 Campbell Drive, Wahroonga.
Orders
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The application is upheld in part and the Orders of the Court are:
Prune the two leaders located on the southern side of the Cypress tree, one being dead and the second live but with an obvious indented wound, to the point of attachment with the main trunk approximately 2.5 metres above ground level.
Prune the three lowest dead branches on Gum tree 1 which grow towards and slightly overhang the driveway area shared by the two properties. Two are approximately 5 metres long and about 40mm at the branch collar, while the third is about 3 metres long and only around 20mm at the collar.
This work is to be carried out by an AQF level 3 arborist, be completed to the requirements of AS4373-2007 Pruning of amenity trees, the Workcover NSW Code of practice for the amenity tree industry (1996) and the Safework Australia Guide to managing risks of tree trimming and removal work (2016)
This work is to be completed within 30 days.
Mr Xu is to pay for the pruning works and removal of refuse.
Should Mr Xu sell 118 Campbell Drive, Wahroonga prior to the pruning being completed, the orders shall attach to the property title.
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Acting Commissioner Douglas
Decision last updated: 12 April 2018
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