Gillies v Locking

[2010] NSWLEC 1171

Land and Environment Court

of New South Wales

CITATION:

Gillies v Locking [2010] NSWLEC 1171

PARTIES:

APPLICANT
Ms A Gillies

RESPONDENT
Mr C Locking

FILE NUMBER(S):

20261 of 2010

CORAM:

Fakes C

KEY ISSUES:

TREES (NEIGHBOURS) :- Damage to property
Injury to persons
Tree removal ordered

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

06/07/2010

 
DATE OF JUDGMENT: 

6 July 2010

EX TEMPORE JUDGMENT DATE:

6 July 2010

LEGAL REPRESENTATIVES:

APPLICANT
Ms A Gillies [litigant in person]

RESPONDENT
Mr C Locking [litigant in person]

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C

7 July 2010

20261 of 2010 Gillies v Locking

JUDGMENT

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

1 COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Turnbull Street The Junction against the owner of a Eucalyptus ficifolia (Red Flowering Gum) growing in the rear garden of an adjoining property.

2 The applicant is seeking the removal of the tree as she contends that the tree may have caused damage to her property and could cause injury to any person.

3 The applicant is also claiming $585 in compensation. This sum includes the filing fee, an arborist’s report and miscellaneous costs associated with the application. Commissioners do not have the jurisdiction to award costs. Therefore this element of the application is dismissed.

4 Under s 10(2) of the Act, the Court must not make an order unless it is satisfied that a tree subject to the application has caused, is causing or could, in the near future, cause damage to the applicant’s property or could cause injury to any person.

5 The damage the applicant thinks may be caused by the tree is the lifting of an area of about 1 m² of paving some 5 m or so from the base of the tree. The pavers were present when the applicant purchased her property in April 2008.

6 The applicant stated that the pavers have been re-set twice. When asked if roots had been removed from beneath the pavers she stated that no roots had been found.

7 In my view, the pavers appear to have subsided and there are other uneven areas of paving, however the paving is functional.

8 On the applicant’s own admission there is no evidence to link the minor displacement of the paving with the tree.

9 I was shown a colourbond fence that had a minor vertical displacement near the tree however the applicant confirmed that there is no damage to the fence.

10 Therefore the tests under s 10(2) with respect to damage are not satisfied and the Court may not make an order with respect to this aspect of the application.

11 The tree is a mature specimen that was well established when the respondent purchased his property about 8 years ago.

12 Less than 20% of the canopy of the tree is alive and the majority of what is alive consists of small epicormic shoots. There is extensive dieback and significant quantities of dead wood throughout the tree.

13 Dead branches overhang the applicant’s property by 3-4 m. The area overhung is largely paved and adjacent to the rear of the applicant’s house.

14 The respondent’s property is currently tenanted and dead wood partly overhangs a barbeque area and other parts of the garden.

15 To date, the applicant reports that only sections of dead wood of about 1 m in length have fallen into her property. Similar-sized dead branches were found beneath the tree on the respondent’s property.

16 The applicant obtained an arborist’s report from Hunter Horticultural Services on 14 December 2008. That report concluded that the tree “is an identified risk”. The arborist did not state what it was a risk of but recommended that the tree be removed as soon as possible.

17 There was a degree of uncertainty in the report as to what tree the arborist was referring however it is assumed that it is the tree subject to this application.

18 The respondent contends that the arborist’s report stated that whilst the tree is in the ‘dying’ category it has no structural defects and has a ‘useful life expectancy’ (ULE) category of 4A with the subsequent recommendation of ‘remove within 5 years’. He stated that this is the time frame he is working towards.

19 The respondent also stated that he is planning to re-develop the site and plans to remove this and another dead tree at that time. However, this will not be for at least 12 months.

20 It is clear from the site inspection that the tree is in advanced decline and past the point of recovering a normal healthy canopy. The dead branches on the tree will continue to deteriorate and parts will inevitably break off.

21 The canopy overhangs areas on both properties likely to be frequently used by people and therefore there is a risk that falling dead wood could cause injury to any person. Therefore as one of the tests under s 10(2) is satisfied, the jurisdiction is enlivened and the Court may make an order.

22 Section 9 of the Act enables the Court to exercise a degree of discretion in the making of orders. The respondent considers that removal of dead wood would be sufficient to remedy the situation at this stage.

23 I have considered this option as the Court has frequently ordered the removal of dead wood down to 30 mm in diameter.

24 However, I consider the making of such an order in these circumstances to be impractical and probably more expensive to implement given the extensive dieback and the nature of the remaining regrowth.

25 Therefore, for the foregoing reasons, 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 to remove the tree to ground level.
3. The work is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.
4. The work is to be completed within 90 days of the date of these orders.
5. If required, the applicant is to provide all reasonable access for the works to be carried out in a safe and efficient manner.
6. The respondent is to provide at least 2 working days notice to the applicant and to his tenants of the commencement of the works.

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