Gough v O'Sullivan

[2009] NSWLEC 1341

Land and Environment Court

of New South Wales

CITATION:	Gough v O’Sullivan [2009] NSWLEC 1341 This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:	APPLICANT Beverley Gough RESPONDENT Maureen O’Sullivan
FILE NUMBER(S):	20468 of 2009
CORAM:	Fakes C
KEY ISSUES:	TREES (NEIGHBOURS) :-
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
CASES CITED:	Gough v O’Sullivan [2009] NSWLEC 1027 Yang v Scerri [2007] NSWLEC 592
DATES OF HEARING:	8 October 2009
EX TEMPORE JUDGMENT DATE:	8 October 2009
LEGAL REPRESENTATIVES:	APPLICANT In person RESPONDENT In person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C

8 October 2009

20468 of 2009 Beverley Gough v Maureen O’Sullivan

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 made by Mrs Beverley Gough of 8/64A-66 Cambridge Street Penshurst against the owner of two trees growing in the rear garden of 4/62-64 Cambridge Street. The owner of that property is Ms Maureen O’ Sullivan.

2 This is the second application under this Act made by Mrs Gough with respect to these trees. The first application was heard by AC Thyer on 15 January 2009 [Gough v O’Sullivan [2009] NSWLEC 1027]. AC Thyer made a number of orders relating to the trees, specifically that the respondent was to obtain a report from an AQF level 5 arborist as to the health, safety and structural stability of the trees and for the removal of all dead wood down to a diameter of 20 mm. A copy of the tree report was to be given to the applicant.

3 The orders were followed by the respondent with the pruning being carried out in early April 2009.

4 In this application, Mrs Gough is seeking the removal of the trees as she contends that they still pose a risk of injury to her despite the trees having been pruned. Her contention is based on the fact that several branches have fallen from the tree in windy conditions. She also has concerns over the safety of the tree based on comments made in the arborist’s report.

5 The trees are two mature Eucalyptus microcorys (Tallowwood). They are healthy and their form and canopy density are normal for this species. The trees were inspected from the ground from both properties. Binoculars were used to view the upper portions of the canopy and to get a closer view of branch attachments.

6 The inspection showed evidence of recent and past pruning cuts. All cuts appear to comply with AS4373 Pruning of Amenity Trees. Mrs Gough stated that several large branches that were overhanging her property were removed about 7 years ago by the strata managers of 62-64 Cambridge Street. There is evidence of good wound closure.

7 The visual inspection confirmed AC Thyer’s observations that the branch attachments in both trees appeared sound and that no weak attachments were seen.

8 A portion of the upper canopy of the tree closest to the applicant’s property still overhangs her roof. The attachment of those branches appeared sound. There are two small elements of dead wood at the end of that portion of canopy but their failure is unlikely to cause damage or injury. (They appeared to be less than 20 mm in diameter.)

9 Mrs Gough showed us several small branches that had fallen from the trees in strong winds. These were live branches at the time of failure. The observed branchlets were between 5 and 15 mm in diameter and between 500 and 1200 mm in length. A photograph provided by the applicant in the application showed a slightly larger live branch that fallen into the corner of her property in windy conditions on 21 May 2009. This was after the most recent pruning.

10 There was a small hanging branchlet caught in the tree above the fence between the two properties. Should this fall from the tree it is unlikely to cause damage or injury.

11 The trafficable area of the applicant’s property most at risk from branch drop is a narrow paved passage between the two properties and the rear of the applicant’s house. The hot water service is the only item in this area. This passage is occasionally occupied by the applicant. The wider and most commonly occupied space is perpendicular to the narrow passage (the applicant and the respondent both occupy corner sites). Whilst there was some evidence of small branchlets in this area, the house itself affords a degree of protection from these small elements.

12 It was reported in the previous application that the tree closest to the applicant’s property had been drilled and tested for termites in November 2007 and none were found.

13 As ordered by AC Thyer, Ms O’Sullivan engaged an arborist to inspect and report on the health, safety and structural stability of the trees. The trees were inspected on 24 March 2009 by Scott Gatenby of Apex Tree and Garden Experts.

14 Mr Gatenby noted that there were no outward signs consistent with structural damage that may be associated with past termite activity but never-the-less recommended testing the tree with a Tomograph (a device that may detect internal decay/ cavities without drilling). This test was quoted at $770 for one test and $330 for each additional test on the same tree. It was suggested that several tests might be required.

15 It was this degree uncertainty as to the internal condition of the tree that raised concerns with the applicant.

16 As there were no Court orders as to what the respondent should do with the arborist’s report, the suggested further testing has not been carried out. After reading the arborist’s report and inspecting the trees, it is my opinion that this testing is optional and the likelihood of whole tree failure is remote.

17 The main concerns of the applicant relate to the falling of branches and the resultant risk of injury.

18 Under section 10(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 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.

19 The Court must also consider a number of matters under section 12 of the Act. The relevant clauses in this case are:

(a) The tree is wholly located on the respondent’s property.
(d) The trees, being eucalypts, will make a contribution to the local ecosystem and to biodiversity.
(e) The trees contribute to the scenic value of the land on which they are growing and were a major factor in Ms O’Sullivan’s decision to purchase her property.

(f) The trees can be seen within the immediate area and therefore have value for public amenity.

(i)(ii) The respondent has taken steps to minimise the risk of injury posed by the trees.

(j) The trees were well-established when the applicant purchased her property 9 years ago.

20 After viewing the trees and reviewing both applications, I conclude that the small branches that have failed since the trees were pruned have done so in very windy conditions. The failure of such small branches in such conditions is not abnormal. The main target area is a narrow infrequently used area of the applicant’s property. The applicant is less likely to be outside in this area in very windy weather and therefore the risk or likelihood of injury is low. The respondent has taken actions to minimise the risk of harm and has Court orders to continue to do so. The section of tree overhanging the applicant’s property appears structurally sound.

21 Based on these conclusions I am satisfied that none of the elements in section 10(2) of the Act are adequately satisfied.

22 The Orders of the Court are that the application to remove the trees is dismissed.

___________________

J Fakes
Commissioner of the Court

13/10/2009 - Correct spelling - Paragraph(s) Cover sheet