Guirgis v Rothery

[2021] NSWLEC 1304

Land and Environment Court

New South Wales

Medium Neutral Citation:

Guirgis v Rothery [2021] NSWLEC 1304

Hearing dates:

8 March 2021

Date of orders:

31 May 2021

Decision date:

31 May 2021

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders that:

(1) The application is granted to the extent of the following orders.

(2) Within 7 days of the date of these orders the respondents are to give the neighbour immediately to their north a copy of these orders.

(3) Within 60 days of the date of these orders the respondents are to engage and pay for a suitably qualified arborist (minimum AQF level 3), with all appropriate insurances, to carry out the following works:

(a) Remove deadwood >35 mm diameter from Tree 1 and from the parts of Tree 2’s crown above the applicant’s and respondents’ properties;

(b) Carry out an aerial inspection of Trees 1 and 2 and remove any hazardous limbs from Tree 1 and from the parts of Tree 2’s crown above the applicant’s and respondents’ properties;

(c) Remove any borers that can be located in the respondents’ side of Tree 2’s lower stem;

(d) Prepare a brief report outlining the completed works.

(4) The works ordered above must be done in accordance with AS 4373 ‘Pruning of amenity trees’ and the 2016 Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’.

(5) The respondents are to give the applicant 7 days’ notice of the works.

(6) The applicant is to allow all access necessary for the works to be completed.

(7) Within 7 days of completion of the works, the respondents are to give the applicant a copy of the report from order (3)(d) above.

(8) The exhibits are returned, except for Exhibits A and E.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Part 2 application – damage to property – damage not demonstrated – risk of injury – one tree on a boundary – orders for pruning and inspection

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 6(3), 7, 10, 12

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292

Fang v Li [2017] NSWLEC 1503

Texts Cited:

Australian Standard: AS2870 Residential Slabs & Footings

Australian Standard: AS4373 Pruning of Amenity Trees

Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work

Category:

Principal judgment

Parties:

Germin Guirgis (Applicant)
Andrew Rothery (First Respondent)
Simone Rothery (Second Respondent)

Representation:

D Ceccattini (Solicitor) (Applicant)
T Poisel (Respondents)

Solicitors
Adams & Partners Lawyers (Applicant)
Bick & Steele (Respondents)

File Number(s):

2020/306997

Publication restriction:

No

Judgment

Background to the application

1. Germin Guirgis (‘the applicant’) first applied to the Court seeking removal of four gum trees growing on the neighbouring Marayong property of Andrew and Simone Rothery (‘the respondents’). The application was amended as Ms Guirgis gathered more information about the neighbouring trees, one of which has several stems and appeared, from her property, as more than one tree.

2. Ms Guirgis’ application was made pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’).

3. Via their solicitors, the parties had negotiated an outcome but failed to reach agreement. They had obtained expert reports: Ms Guirgis had engineering reports from Sydney Building Consultants and Maroubra Consulting, and an arboricultural report from ‘Dr Treegood’; while the Rotherys had an arboricultural report from ‘Newleaf Arboriculture’.

4. On the morning of the onsite hearing, the parties continued these negotiations via their legal representatives: Ms Ceccattini for the applicant and Mr Poisel for the respondents. They arrived at consent orders, which they put to the Court. With some minor adjustments to allow for access and notifying another neighbour, these were orders the Court could, and would, make. A brief explanation is provided below.

The applicant made reasonable effort to reach agreement

5. The Court may only make orders if satisfied that the applicant has made a reasonable effort to reach agreement with the owners of the land on which the trees are situated (s 10(1)(a) of the Trees Act). Negotiations took place between the parties, leading to them drafting consent orders prior to the hearing. I am satisfied that Ms Guirgis’ efforts to reach agreement with the Rotherys were reasonable.

The Court cannot make orders on the issue of damage

6. Ms Guirgis alleged that the trees have damaged her property. She relied on the two engineering reports to support this claim. At s 10(2) of the Trees Act, the Court can only make orders if it is satisfied, for each tree, that it has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or is likely to cause injury to any person.

7. The Sydney Building Consultants’ report concluded that the trees had caused damage by their debris falling into and blocking Ms Guirgis’ gutters, leading to internal water damage. The report also found that the trees might cause injury, but this is outside the author’s field of expertise. The author also concluded that roots were highly probable to affect the structural integrity of Ms Guirgis’ dwelling, but no evidence of this was provided. The author did not undertake any investigations, beyond observing debris in roof gutters, and thought there were four large neighbouring trees, so the inspection was very limited.

8. Damage to Ms Guirgis’ dwelling was not demonstrated, but if I were satisfied that neighbouring trees’ leaves blocked her gutters, causing water damage, I would not make any orders on this element of her application. In Barker v Kyriakides [2007] NSWLEC 292 at [20], the Court established a principle that has since been consistently applied in tree disputes:

“For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis.

The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree.”

9. The report of Alan Wright, of Maroubra Consulting, found no significant damage to Ms Guirgis’ dwelling, but concluded that there is “…a real risk of future structural damage occurring to the rear dwelling due to the effects of the tree roots” (Exhibit C, page 3). This appears to be based solely on Appendix B of Australian Standard: ‘AS2870 Residential Slabs & Footings’, which at clause B2.3(c) suggests setbacks from buildings when planting trees. That clause is included in the report immediately preceding the conclusion quoted above. In Fang v Li [2017] NSWLEC 1503, at [51]–[57], I discussed the reliance of engineers on this and similar documents. Quoting such documents cannot take the place of site investigations, and does not demonstrate to the Court that the trees in this application are likely to cause damage to the applicant’s property in the near future. No orders can be made on this element of the application.

The trees are likely to cause injury

10. The two trees are in the Rotherys’ back garden. They overhang Ms Guirgis’ property, including her dwelling. These large mature gum trees have not been pruned for many years. Dead branches are present in their crowns. At its base, one of the trees (Tree 2) spreads across the Rotherys’ side boundary that they share with their neighbour to their north. That tree has some borer damage in its stem, but this does not appear to have affected the tree’s structural integrity.

11. The arboricultural assessment by Jacki Brown, of Newleaf Arboriculture, identified the two trees as Grey Box (Eucalyptus moluccana). Ms Brown recommended that both trees be retained, with regular inspections and pruning to remove dead branches more than 40 mm in diameter.

12. The report by William Home, of Dr Treegood, identified the trees as Forest Red Gums (E. tereticornis), which appeared to be more likely. Mr Home recommended regular inspections and pruning to remove deadwood from both trees, and cleaning out of the borer damage at the base of Tree 2. He also recommended installation of gutter guard on Ms Guirgis’ dwelling.

13. Having observed the trees at the onsite hearing, I am satisfied that branches that are likely to fall from both trees could cause injury. Having considered the matters at s 12 of the Trees Act, I concur that inspection and pruning of both trees is appropriate for reducing the risk of injury from branch failure. The parties proposed ongoing inspections and pruning at regular intervals. While such ongoing maintenance is appropriate for the trees’ owners, it is the absence here of any recent pruning that has led to the current risk of injury and the need for orders. The Rotherys are now aware of the issue, and have committed to undertaking regular maintenance, so this should not require orders from the Court. The parties also proposed an order for removing borers from Tree 2 if possible. This is appropriate for minimising further damage and has been included in the Court’s orders.

Notifying another neighbour

14. Tree 2 grows on the Rotherys’ northern boundary, its stem principally on the Rotherys’ land but spreading onto the neighbouring property to their north. Those neighbours may well be part-owners of the tree. Certainly, the tree’s crown overhangs that neighbouring property, as well as the Rotherys’ property and Ms Guirgis’ property. The neighbours should be notified of the orders. Even though pruning ordered below is restricted to parts of Tree 2’s crown over the applicant’s and respondents’ properties, the Rotherys’ northern neighbours have an interest in the tree and may wish to engage the arborist to carry out pruning above their own property at the same time, to minimise costs. The pruning ordered below does not require council consent due to s 6(3) of the Trees Act. Any pruning beyond what is ordered may require council consent.

Orders

15. Based on the foregoing reasons, the Court orders that:

1. The application is granted to the extent of the following orders.

2. Within 7 days of the date of these orders the respondents are to give the neighbour immediately to their north a copy of these orders.

3. Within 60 days of the date of these orders the respondents are to engage and pay for a suitably qualified arborist (minimum AQF level 3), with all appropriate insurances, to carry out the following works:

1. Remove deadwood >35 mm diameter from Tree 1 and from the parts of Tree 2’s crown above the applicant’s and respondents’ properties;

2. Carry out an aerial inspection of Trees 1 and 2 and remove any hazardous limbs from Tree 1 and from the parts of Tree 2’s crown above the applicant’s and respondents’ properties;

3. Remove any borers that can be located in the respondents’ side of Tree 2’s lower stem;

4. Prepare a brief report outlining the completed works.

4. The works ordered above must be done in accordance with AS 4373 ‘Pruning of amenity trees’ and the 2016 Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’.

5. The respondents are to give the applicant 7 days’ notice of the works.

6. The applicant is to allow all access necessary for the works to be completed.

7. Within 7 days of completion of the works, the respondents are to give the applicant a copy of the report from order (3)(d) above.

8. The exhibits are returned, except for Exhibits A and E.

……………………………….

D Galwey

Acting Commissioner of the Court

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Decision last updated: 31 May 2021