Hammond v Arcimowicz

[2015] NSWLEC 1490

Land and Environment Court

New South Wales

Medium Neutral Citation:	Hammond v Arcimowicz [2015] NSWLEC 1490
Hearing dates:	25 November 2015
Date of orders:	25 November 2015
Decision date:	25 November 2015
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is upheld. See orders at paragraph 13.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS); damage by falling branches; risk of damage and injury; orders for regular tree assessment.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Category:	Principal judgment
Parties:	Anthony Hammond (Applicant) Stanley Arcimowicz (Respondent)
Representation:	Anthony Hammond, litigant in person (Applicant) Stanley Arcimowicz, litigant in person (Respondent)
File Number(s):	20795 of 2015

Judgment

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

Background of the application

1. During the severe storms in April of this year large branches fell from a native tree in the front garden of Mr Arcimowicz’s Merewether property. One branch fell onto his own roof, the other onto his neighbour Mr Hammond’s property, damaging roofing, a shade sail and a car to the extent that it was written off.

2. The mature Angophora costata (commonly known as a Smooth-barked Apple or Sydney Blue Gum, but for the remainder of this judgment simply referred to as ‘the Tree’) stands adjacent to the common boundary, perhaps three metres from the respondent’s dwelling and five metres from the applicant’s. Many years ago, before Mr Arcimowicz purchased his property, a major branch was removed on the northern side of the Tree leaving a large wound low on the stem. Also as a result of earlier pruning, the Tree’s canopy is slightly biased to the south, over Mr Hammond’s property.

3. Mr Hammond (‘the applicant’) became concerned principally that the Tree may fail due to its stem structure being weakened by the large wound, but also due to the risk of further limb failures. He says that a representative of Newcastle Council has told him he cannot prune the Tree without his neighbour’s permission. He requested that his neighbours remove the Tree.

4. Mr Arcimowicz and Ms Bower live together at the property. Mr Arcimowicz owns the property and is ‘the respondent’ in this matter, however submissions were heard from them both during the hearing. They do not want to remove the Tree. They say it is part of the natural environment and that it provides habitat for tawny frogmouth owls, among its many other benefits.

5. Mr Hammond engaged Mr Ian McKenzie, consulting arborist, to assess the Tree. Mr McKenzie applied the International Society of Arboriculture (ISA) tree risk assessment methodology, otherwise known as TRAQ. He undertook a basic visual assessment (TRAQ Level 2 assessment) and determined that the level of risk due to limb failure was low, but that risk rating due to the stem’s condition was moderate. Mr McKenzie recommended that the stem be tested using impulse tomography or a resistance-measuring drill to assess its structural integrity. Mr Hammond then applied to the Land and Environment Court pursuant to Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’) seeking orders for the Tree to be tested for structural integrity, and removed if necessary.

Testing of the stem

6. Since Mr Hammond’s application, and prior to the hearing, Mr Arcimowicz engaged Mr Dennis Marsden to test the Tree using a resistance-measuring drill (IML Resi F300-S). Mr Marsden found that there was some decayed wood behind the large wound but that, in his opinion, the stem had sufficient sound wood overall at this height and that its structural integrity was not affected to the extent that stem failure would be likely. His final conclusion was that the “result does not per se give rise to an undue risk of stem breakage.”

The applicant wants the respondents to remove the Tree

7. Mr Hammond is concerned that a percentage of the stem is decayed, and that even if this is less than the critical percentage at the moment, it is likely to spread further and at some point become hazardous. He wants to avoid repeated testing in future and still seeks orders for the Tree’s removal.

Findings

Jurisdiction

8. It is clear that the respondent’s Tree has caused damage to the applicant’s property, which is on adjoining land. Key jurisdictional tests within the Act, especially s 10(2), are satisfied and the Court can make orders.

The Tree

9. The Tree is growing vigorously. My own experience is that this species tends to compartmentalise decay well, restricting its spread within the stem. As the Tree has good vigour, new wood that will be unaffected by any existing decay will be added to the stem as it grows. It is not necessarily so that the stem’s condition will weaken in future. In fact it may strengthen over time, if new growth outpaces any spread of decay. There is certainly no reason to interfere with the Tree at this point in time on the basis that its stem may weaken.

10. I observed that the two limb failures earlier this year left broken stubs with wounds on the limbs below, where bark and wood fibres tore as the limbs failed. The remaining limbs above these two stubs support extensive areas of the crown, at least partly over Mr Hammond’s property. They appear structurally sound at present, but this assessment is made only from the ground and their condition may change over time. It is possible that they may weaken and fail, and they may cause injury to people within either property. The risk is probably greatest to the applicant’s property as limbs are over the driveway where cars park.

11. I have considered the range of matters at s 12 of the Act and find that the Tree’s amenity and environmental benefits, to its owner as well as to the general public, outweigh any reason for its removal.

12. For this reason, orders will be made for the respondent to arrange biennial assessments (every two years) of the Tree by an arborist, and then to carry out any works recommended by the arborist. The parties are notified that, according to s 6(3) of the Act, the orders below have effect “despite any requirement that would otherwise apply for a consent or other authorisation in relation to the tree concerned to be obtained under the Environmental Planning and Assessment Act 1979 or the Heritage Act 1977.”

Orders

13. As a result of the foregoing, the orders of the Court are:

1. The respondent is to arrange and pay for biennial inspections of the Tree by a suitably qualified (minimum AQF Level 5) and experienced arborist, to assess risk posed to both the applicant’s and respondent’s properties, and to make any recommendations to remedy hazards and reduce risk posed by the Tree so that its residual risk is low. The arborist is to provide the respondent with a written report outlining findings and recommendations.

2. Inspections as ordered in (1) are to be done during November, beginning November 2016. The respondent is to provide a copy of the arborist’s report to the applicant within 30 days of the inspection.

3. Within 90 days of each inspection the respondent is to engage and pay for a suitably qualified (minimum AQF Level 3) and experienced arborist to carry out any works on the Tree recommended in the assessing arborist’s report. The works are to be done in accordance with AS4373 Pruning of amenity trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry.

4. On reasonable notice the applicant is to allow access for the works in (3) during reasonable hours of the day.

____________________________

D Galwey

Acting Commissioner of the Court

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Decision last updated: 27 November 2015