Gauci v Ioannou

[2009] NSWLEC 1419

Land and Environment Court

of New South Wales

CITATION:

Gauci v Ioannou [2009] NSWLEC 1419

PARTIES:

APPLICANT
Martin Gauci v

RESPONDENT
Cris and Androulla Ioannou

FILE NUMBER(S):

20724 of 2009

CORAM:

Fakes C

KEY ISSUES:

TREES (NEIGHBOURS) :- Removal of tree, damage to property and risk of injury to people.

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

CASES CITED:

Yang v Scerri [2007] NSWLEC 592

DATES OF HEARING:

10 December 2009

 
DATE OF JUDGMENT: 

18 December 2009

LEGAL REPRESENTATIVES:

APPLICANT
Martin Gauci v

RESPONDENT
Cris and Androulla Ioannou

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C

18 December 2009

20724 of 2009 Martin Gauci v Cris and Androulla Ioannou

JUDGMENT

1 COMMISSIONER: This is an applicant pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 made by Mr Martin Gauci of 108a Harvey Road Kings Park against the owners of a tree located at the rear of 46 Cobham Street Kings Park. The owners of that property are Mr and Mrs Ioannou. Mrs Claire Gauci attended the on-site hearing; Mrs Ioannou was unable to do so.

2 The applicant is seeking the removal of the tree as he contends that the tree poses a risk of injury to people. He contends that branches from the tree have caused damage to his property and will continue to do so.

3 The tree is a dead Eucalypt of approximately 20 m in height located in the rear north-western corner of the respondents’ property between a chook shed and the rear boundary fence. The applicant’s property is to the rear of the respondents’ property. The tree is also close to the boundary with the northern neighbours of both the applicant and the respondents and effectively overhangs four properties.

4 According to the applicant, the tree was healthy until it was stuck by lightning in a storm about two years ago. It has been dead for approximately 18 months.

5 The symptoms observed at the time of the on-site hearing are consistent with lightning strike. The trunk is cracked and large sheaths of bark are hanging off the tree. The trunk bifurcates at about 3 m above ground and there is included bark between the stems. Many of the branches are starting to degrade and decay to the point of failure. There are failed dead branches caught in dead but attached branches.

6 The applicant’s main outdoor living area is a small courtyard overhung by the tree. Mr Gauci provided photographic evidence of damage to a downpipe that connects the roof gutter to a water tank. Dead branches of a size that could cause injury are clearly evident.

7 The Gauci’s built their house at the rear of an existing property and have lived in the house for three years. Mrs Gauci acknowledged that they were accepting of building close to a large, but living, eucalypt. However, as the tree is now dead, the risk of injury or damage is now unacceptable.

8 Under s10 (2) of the Act, the Court must not make an order unless it is satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property or is a risk of injury to persons. In Yang v Scerri [2007] NSWLEC 592, a rule of thumb, which I consider is also appropriate here, puts the near future as being a period of 12 months from the date of the determination.

9 The Court must also consider a number of matters under s 12 of the Act. The relevant clauses here are that: the tree is wholly located on the respondents’ property and it may provide some value to local biodiversity. The applicant has offered to purchase the rear section of the respondents’ property and thus take responsibility for the tree but the respondents refused this offer.

10 It is clear from the evidence that the tree has caused damage to property and is likely to do so in the near future. The falling of dead wood from the tree also poses a risk of injury, not only to anyone on the applicant’s property but also to anyone on the respondents’ property and to the properties immediately to the north of the tree.

11 The respondent is unwilling to remove the tree as he states that he is unable to afford to do so given his difficult financial and personal circumstances. However, the consequences of not taking action now could be a greater level of liability should significant damage or injury arises.

12 I conclude that three of the tests under s 10(2) are satisfied and therefore the jurisdiction is enlivened and the Court may make an order.

13 The orders of the Court are:

1. The application to remove the tree is upheld.
2. The respondent is to engage and pay for an AQF level 3 arborist, with the appropriate insurances, to remove the tree to a point 3 m above the ground.
3. The work is to be completed within 3 months of the date of these orders.

___________________
J Fakes
Commissioner of the Court