Frith v Murnane

[2023] NSWLEC 1667

Land and Environment Court

New South Wales

Medium Neutral Citation:

Frith v Murnane [2023] NSWLEC 1667

Hearing dates:

24 October 2023

Date of orders:

24 October 2023

Decision date:

24 October 2023

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1) The application is granted to the extent of the following orders.

(2) The respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3), with all appropriate insurances, to carry out the following works within 60 days of the date of these orders:

(a) prune the tree to remove all deadwood greater than 40 mm in diameter;

(b) prune the tree to remove two branches over the applicants’ property and to reduce one other branch (see photos in Annexure A);

(c) prune other branches as the arborist sees fit, removing no more than 20% of total live crown mass.

(3) The works in (2) are to be done in accordance with AS4373-2007 ‘Pruning of amenity trees’ and the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.

(4) The respondents are to give the applicants 2 days’ notice of the works in order (2).

(5) The applicants are to allow all access required for completion of the works in order (2) during reasonable hours of the day.

(6) The exhibits are retained.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2 application – neighbouring tree – risk of damage or injury – whether tree removal is required – orders for pruning

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, ss 6, 7, 10, 12

Texts Cited:

Australian Standard, AS4373-2007 ‘Pruning of amenity trees’

Safe Work Australia, Guide to managing risks of tree trimming and removal work (2016)

Category:

Principal judgment

Parties:

Abby Sheree Frith (First Applicant)
Brendon Leslie Lewis (Second Applicant)
Corey Murnane (First Respondent)
Velvet Murnane (Second Respondent)

Representation:

Counsel
A Frith (Self-represented) (First Applicant)
B Lewis (Self-represented) (Second Applicant)
J Ryan (Solicitor) (Respondents)

Solicitors
Stringybark Legal (Respondents)

File Number(s):

2023/219412

Publication restriction:

Nil

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Background

1. COMMISSIONER: Abby Frith and Brendon Lewis (the applicants) have applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) seeking orders to remove or prune a tree on the neighbouring Abermain property of Corey and Velvet Murnane (the respondents). The hearing took place onsite, allowing the Court to inspect the trees and surrounding environment.

Framework for this decision

2. Under s 10 of the Trees Act, several jurisdictional hurdles must be passed:

10 Matters of which Court must be satisfied before making an order

(1) The Court must not make an order under this Part unless it is satisfied:

(a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, and

(b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 8.

(2) The Court must not make an order under this Part unless it is satisfied that the tree concerned:

(a) has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or

(b) is likely to cause injury to any person.

Evidence and submissions

3. The applicants obtained a report from Stephen Williams, a qualified arborist of Hunter Horticultural Services. Mr Williams described the tree as an 18-metre mature Grey Box (Eucalyptus moluccana) in good health with fair structure. He identified deadwood and live branches up to 80 mm in diameter to be the tree parts most likely to fail, with a moderate risk of resulting in severe injury or damage. Mr Williams recommended pruning of the crown, especially branches overhanging the applicants’ property.

4. The applicants submitted that branches, both dead and live branches, have fallen from the tree onto their property in an area where their children play and where play equipment is installed. Their land was developed recently and their dwelling is relatively new. They submitted that the tree’s branches did not extend above their property when they first moved in. The applicants said that, despite Mr Williams’ recommendations, they were worried about the tree and wanted to be sure that it would not fall onto their property. Only tree removal would guarantee this, the applicants argued.

5. As an alternative to tree removal, they would want all branches overhanging their property pruned back to the tree’s stem.

6. The applicants submitted that they asked the respondents to remove the tree. They then applied for mediation, which was refused. They are not allowed to prune overhanging branches without consent from Cessnock City Council (Council), which in turn requires the tree owners’ consent. Left with no alternative, the applicants applied to the Court.

7. The respondents submitted that this native tree is healthy and provides habitat, shade and other benefits. It was here when the applicants’ dwelling was built and when the applicants installed play equipment nearby. The tree is approximately 5 metres from the common boundary.

8. The respondents declined to participate in mediation because they saw no possible resolution when the only outcome that would satisfy the applicants was removing the tree.

9. After receiving a copy of Mr Williams’ report, the respondents said they would carry out the recommended pruning. They gave a copy of the report to an arborist who provided them with a written quote. The respondents applied to Council for consent to carry out the pruning works, and received consent. On this basis, they sought the applicants’ agreement to discontinue these proceedings. The applicants did not agree to discontinuing, and the hearing has proceeded.

Findings

10. I am satisfied that the applicants made a reasonable effort to reach agreement.

11. I find Mr Williams’ report to be accurate and his recommendations are reasonable for managing the risk of branches falling and causing damage or injury. Failure of the tree’s stems or roots appears unlikely.

12. I am satisfied that branches falling from the tree are likely in the near future to cause damage to the applicants’ property, such as their play equipment, or are likely to injure someone in their garden.

13. I have considered the matters at s 12 of the Trees Act and find that orders for pruning are appropriate. The tree was here well before the applicants’ property was developed. It is a native tree that provides environmental value and ecosystem services. It is approximately 5 metres from the common boundary. There is no evidence that it has caused damage in the past.

14. The applicants’ expectations that the tree be removed, or that all overhanging branches be removed, are disproportionate to the level of risk posed by the tree. The respondents have acted reasonably, by undertaking to carry out the recommended pruning and obtaining Council consent. As per s 6(3) of the Trees Act, Council consent is not required to carry out the following orders.

Orders

15. The Court orders:

1. The application is granted to the extent of the following orders.

2. The respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3), with all appropriate insurances, to carry out the following works within 60 days of the date of these orders:

1. prune the tree to remove all deadwood greater than 40 mm in diameter;

2. prune the tree to remove two branches over the applicants’ property and to reduce one other branch (see photos in Annexure A);

3. prune other branches as the arborist sees fit, removing no more than 20% of total live crown mass.

3. The works in (2) are to be done in accordance with AS4373-2007 ‘Pruning of amenity trees’ and the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.

4. The respondents are to give the applicants 2 days’ notice of the works in order (2).

5. The applicants are to allow all access required for completion of the works in order (2) during reasonable hours of the day.

6. The exhibits are retained.

……………………………….

D Galwey

Acting Commissioner of the Court

Annexure A (1367595, pdf)

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Decision last updated: 07 November 2023