Gough v O'Sullivan

[2009] NSWLEC 1027

Land and Environment Court

of New South Wales

CITATION:

Gough v O’Sullivan [2009] NSWLEC 1027

PARTIES:

APPLICANT
Beverly Gough

RESPONDENT
Maureen O’Sullivan

FILE NUMBER(S):

21085 of 2008

CORAM:

Thyer AC

KEY ISSUES:

TREES (NEIGHBOURS) :- Removal of two trees, risk of injury to persons and damage to property

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

15/01/2009

EX TEMPORE JUDGMENT DATE:

15 January 2009

LEGAL REPRESENTATIVES:

APPLICANT
Ms B. Gough, litigant in person

RESPONDENT
Ms M. O’Sullivan, litigant in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Thyer AC

15 January 2009

21085 of 2008

Beverly Gough v Maureen O’Sullivan

JUDGMENT

The extemporaneous decision was given on 15 January 2009. This written judgment includes the findings given on-site, relevant observations and background information.

1 ACTING COMMISSIONER: Two large Tallowwood trees (Eucalyptus microcorys) are growing in the yard of unit 4/62-64 Cambridge Street, Penshurst. The property is owned by Miss O'Sullivan. The trees are in the north-eastern corner of her yard, which is in the north-eastern corner of the strata complex at 62-64 Cambridge Street.

2 Mrs Gough is the owner of unit 8/64A-66 Cambridge Street, Penshurst, the adjoining property to the north. She has made an application under the Trees (Disputes Between Neighbours) Act 2006 on the basis of damage and likelihood of injury, and seeks orders for removal of the two trees.

3 I observed that the trunk of the northern tree is about 0.5 m from the common boundary. The southern tree is about 2.5 m from the common boundary. Both trees are about 0.6 m diameter and about 20 m in height. The trees appear to have good form and vigour, and to be firm in the ground. I did not see any indications of weak branch junctions. Neither party provided an arborist’s report.

4 There is some history to these trees. I am told they used to stand in a large backyard well clear of all houses. That property was developed with single storey strata dwellings about 20 years ago. Miss O'Sullivan bought the property which contains the trees in 2005. The property to the north was similarly developed about nine years ago, with Mrs Gough’s unit built partly under the canopy of the trees. A more recent, similar development has occurred on the eastern side of the trees. Hurstville City Council allowed the trees to remain as each new development was constructed close to the trees.

5 In February 2001, Hurstville City Council granted permission for Mrs Gough to prune the trees in the following terms:

The two Eucalyptus microcorys appear in a healthy and stable condition and do not appear to be posing a danger or problem which would warrant their removal. Both trees are significant canopy trees and contribute greatly to the aesthetics of the general area. It was noted that both trees do contain a certain amount of minor deadwood as well as several more lower lateral branches over 8/ 64A Cambridge. Permission is granted to prune back these offending branches.

6 In September 2003 Hurstville City Council granted permission for the previous owner of Miss O’Sullivan’s property to remove one of the trees, and to lop lower branches, thin the canopy and remove deadwood from one other of the trees.

7 When assessing an application under the Act, 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:

Has the tree caused damage to the applicant's property ?
Is the tree now causing damage to the applicant's property ?
Is the tree likely in the near future to cause damage to the applicant's property ?
Is the tree likely to cause injury to any person?

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

Is the damage or risk sufficiently serious to warrant the Court intervening?
If so, what should the Court order?
Who should pay to carry out those orders?

Damage

9 Mrs Gough showed us where there had been two broken tiles on the northern side of her roof, that being the side of the roof furthest from the trees. The tiles have been replaced, and she is not sure that the tiles were broken by branches of the trees. I find that there is not sufficient evidence for me to have a comfortable level of satisfaction that the tiles were broken by the tree.

10 Mrs Gough also showed us a low brick wall on the boundary between the two properties that she claims has been damaged by the tree. I observed that the wall appears to be a boundary wall, and may be owned by the body corporate. The trunk of the northern tree is located about 0.5 m from the wall. I observed a vertical crack in the wall adjacent the tree, and another vertical crack located about 2 m east of the tree. In each case, the cracks appear to be a constant width from top to bottom of the wall. Also, the top of the wall does not seem to be lifted at the cracks or on either side of the cracks. Mrs Gough advised that pavers had sunk in her courtyard between the house and the tree and she had those pavers lifted and re-laid. I have noticed over many years that damage by tree roots to paving usually results in lifting rather than sinkage. Based on my observations of the wall and information provided by Mrs Gough, I find that the wall has not been damaged by the tree. As damage to the wall does not meet any of the tests in s 10(2)(a) of the Act, the question of ownership of the wall does not need to be answered.

11 I observed that both trees have some dead wood in their canopy, and accept Mrs Gough’s claim that small dead branches and many twigs fall from the trees. However, as damage has not been caused in the past, and the dead wood is comparatively small in size, I do not find that falling dead wood is likely to cause damage in the near future.

12 As I do not find that the trees have caused, are causing or are likely to cause damage to Mrs Gough's property in the near future, neither of the trees meet any of the tests in s 10 (2)(a) of the Act.

Likelihood of injury

13 In relation to risk of injury, Mrs Gough claims that a number of dead branches have fallen from the trees onto her property over the years. She says that these branches have been up to about 20 mm in diameter and 1.2 m in length. I find that branches of that size dropping from the height of these trees is likely to cause injury if they struck a person. I observed that the outdoor space of Mrs Gough's unit is restricted to a narrow courtyard on the southern side and a passageway on the eastern side, both either under or very close to the canopy of the trees. Mrs Gough said that she spends some time cleaning up tree debris in those outdoor areas, and would like to spend recreational time there. On the basis that she has no other private outdoor space, and will spend time in the courtyard under the trees, I find it likely that injury will occur, thus the trees meet the test in s 10(2)(b) of the Act.

14 Mrs Gough claims that the trees have been infested by termites. Miss O’Sullivan agrees that termites were found, but that the trees have been treated and a letter dated 5 December 2008 states that no termite activity was found at the time of testing which appears in the letter as 21 November 2007. Miss O’Sullivan claims there is a typing error as the trees were inspected for the purposes of that letter on 21 November 2008. I accept Miss O’Sullivan’s explanation, but I also appreciate Mrs Gough’s concern that the tree may be structurally unsound as a result of the termite activity.

Considerations

15 Under s 12 (e) of the Act, I note as Hurstville City Council did in 2001, that the trees have significant canopies and contribute to the scenic value of the property, and the surrounding local area.

16 Under s 12 (f) of the Act, I note that the trees provides intrinsic value through oxygen production, carbon sequestration, cooling summer shade, and deflection and dispersal of strong winds.

Conclusion

17 Mrs Gough’s application is upheld in part, and orders will be made for inspection of the trees and preparation of a report by a qualified arborist, and pruning of dead wood from the trees.

Orders

18 The application is upheld in part, and the Court makes the following Orders that apply to 4/62-64 Cambridge Street, Penshurst:

a. The two Tallowwood trees shall be inspected by an arborist with AQF level 5 qualifications who shall prepare a report on the health, safety and structural stability of the two trees. The report shall be completed by 30 April 2009 and have the date of completion printed on the cover. A copy of the report shall be provided to Mrs Gough within 30 days after completion of the report;
b. All dead wood with a diameter greater than 20 mm shall be pruned from both Tallowwood trees by 30 April 2009 and at periods of no more than five years from then until 2020. The pruning of deadwood shall be carried out by an arborist with AQF level 3 qualifications and suitable insurances, and done in accordance with the Australian Standard AS 4373-2007 Pruning of Amenity Trees ;
c. The work in a. and b. above shall be at the cost of the owner of the Tallowwood trees;
d. Mrs Gough shall allow access to her property for the pruning work and cleanup, but not as a route for removal of any branches, or for standing of a crane.
e. The work shall be carried out at reasonable times, Mrs Gough shall be given at least one week notice of the proposed work, and Mrs Gough may supervise the work over her property.

___________________

Peter Thyer
Acting Commissioner of the Court

The formal orders are not included as part of this judgment but a copy may be obtained from the Court’s registry upon payment of a fee. Details are available on the Court’s web site at