Giffin v Scott - [2008] NSWLEC 1511

Land and Environment Court

of New South Wales

CITATION: Giffin v Scott [2008] NSWLEC 1511

PARTIES:
APPLICANT
William Giffin
RESPONDENT
Carole Scott

FILE NUMBER(S): 20960 of

CORAM: Thyer AC

KEY ISSUES: Trees (Neighbours) :- Applicant ordered to obtain tree inspection and report of their cost. Applicant ordered not to contact respondent in relation to general matter concerning the tree for at least five years.

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING: 10/12/2008

EX TEMPORE JUDGMENT DATE: 10 December 2008

LEGAL REPRESENTATIVES:
APPLICANT
Mr W Giffin, litigant in person
RESPONDENT
Ms C Scott, litigant in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Thyer AC

10 Decemeber 2008

20960 of 2008 William Giffin v Carole Scott

The extemporaneous decision was given on 10 December 2008. This written judgment has been edited and includes relevant observations and background information.

JUDGMENT

1 ACTING COMMISSIONER: This application concerns one Grey Gum tree situated on Mrs Scott's property at 96 Morshead drive, Connells Point. The tree is located about 5 m to the south of the common boundary with Mr Giffin’s adjoining property at 94 Morshead Drive, Connells Point. Mr Giffin has resided at his property for 36 years, and Mrs Scott has resided at her property for 34 years. The Grey Gum and another Grey Gum closer to Mrs Scott's home were on her land and of a mature size when she bought the property. The tree is likely to be a remnant native tree.

2 There has been ongoing dispute concerning the Grey Gum for many years, with Mr Giffin wishing to be satisfied that the tree will not cause damage or injury. He does not claim that the tree has caused damage, but is concerned that falling dead wood or live wood may cause damage or injury. He now seeks orders that the tree be removed.

3 When assessing an application under the Trees (Disputes Between Neighbours) Act 2006 the Court must be satisfied that one or more of the four tests in s 10(2) (a) and (b) of the Act are met by each tree before making an order regarding that tree. These tests are:

4 Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of:

The tree

5 The tree is a Grey Gum (Eucalyptus punctata) about 18 m tall with a trunk diameter of about 0.6 m.

6 Mr Giffin has arranged two inspections of the tree by arborists and their reports are included in his application. The report dated June 2005 by Tree and Landscape Consultants states that if the tree was to remain, crown clearing to remove dead, diseased or potentially dangerous limbs should be undertaken to alleviate potential risk. The Above All Tree Services report dated January 2008 recommends that due to limitations on access to inspect the tree, the author is obliged to err on the side of safety and recommend removal of the tree. However, he notes that given access to the tree he could refine his observations, conclusions and recommendations.

7 We benefited from the presence at the hearing of Mr Dalgleish, Tree Management Officer for Kogarah Council. His observation was that the tree was generally in fair condition with about 5 - 10% dead wood in the canopy, some epicormic growth, and indications of decline. He observed that the change of soil level around the base of the tree is likely to be the reason for decline, but that the tree was sustainable for 5 - 15 years at least, and may improve.

8 I observed that the tree is generally in fair condition, and that the trunk and visible branches appear to be free of disease and insect attack. There are co-dominant main trunks from about 6 m above ground but these have an open junction without included bark. The tree has a slight lean to the north, with the majority of the canopy towards Mr Giffin’s property, probably due to the adjacent large Grey Gum growing to its south. There is a 0.3 m high dry rock wall surrounding the trunks of the two trees, constructed on the advice of a horticulturist more than 30 years ago, to remove the builders fill and return the original soil levels around the base of the trees. I agree with Mr Dalgleish and the Tree and Landscape Consultants report that the build up of soil more than 30 years ago is likely to have created stress for the tree and may be the major reason for decline in the past.

9 I observed at least six dead branches in the canopy of the tree, with diameters up to about 60 mm. Some of these dead branches overhang Mr Giffin’s property and may fall into his property. The live canopy overhangs Mr Giffin’s property by about 3 m.

10 Mr Giffin claims that a branch from the tree fell on to his driveway about 12 - 18 months ago, that branch being about 90 - 100 mm diameter and 4 m long. Mrs Scott disagrees and says that the branch was from the nearby Jacaranda tree. I am unable to draw any conclusion from these claims, but note that the branch did not cause any damage.

Findings

11 I find that dead wood is likely to fall, and due to its size may cause damage in the near future or injury. On that basis the tree meets the third test in s 10(2)(a) of the Act and the test in s 10(2)(b) of the Act. On this basis I intend to order removal of the dead wood.

12 Under s 12 (j) of the Act, I note from the documents and at the hearing that this is a long-standing dispute, and that Mr Giffin has been persistent in his demands. It is my assessment that part of Mrs Scott’s reluctance to carry out works on the tree is that she does not think any work would satisfy Mr Giffin. For this reason I intend to make orders that limit Mr Giffin’s future complaints to Mrs Scott.

13 The application is upheld in part, and orders will be made as follows:

AS 4373-2007 Pruning of Amenity Trees

___________________

Peter Thyer

Acting Commissioner of the Court

CITATION:	Giffin v Scott [2008] NSWLEC 1511
PARTIES:	APPLICANT William Giffin RESPONDENT Carole Scott
FILE NUMBER(S):	20960 of
CORAM:	Thyer AC
KEY ISSUES:	Trees (Neighbours) :- Applicant ordered to obtain tree inspection and report of their cost. Applicant ordered not to contact respondent in relation to general matter concerning the tree for at least five years.
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
DATES OF HEARING:	10/12/2008
EX TEMPORE JUDGMENT DATE:	10 December 2008
LEGAL REPRESENTATIVES:	APPLICANT Mr W Giffin, litigant in person RESPONDENT Ms C Scott, litigant in person