Hosainy v Rashid

[2015] NSWLEC 1223

Land and Environment Court

New South Wales

Medium Neutral Citation:	Hosainy v Rashid [2015] NSWLEC 1223
Hearing dates:	5 June 2015
Date of orders:	05 June 2015
Decision date:	05 June 2015
Jurisdiction:	Class 2
Before:	Durland AC
Decision:	The application is upheld
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS); damage, injury, compensation, tree pruning ordered.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Smith and Hannaford v Zhang & Zhou [2011] NSWLEC 29
Category:	Principal judgment
Parties:	Basera Hosainy (Applicant) Fawaz Rashid (Respondent)
Representation:	Counsel: Basera Hosainy, litigant in person (Applicant) Fawaz Rashid, litigant in person (Respondent) Solicitors: -
File Number(s):	20198 of 2015

Judgment

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

1. This is an application pursuant to section 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) concerning a tree located on a property at St Ives. The tree is identified on the application as Tree 1.

2. Ms Hosainy (the applicant) owns and lives in a residential property in the well vegetated suburb of St Ives. The property is located on a steep gradient with steps up from the street frontage to the house and then several steps from the rear of the house to the pool terrace and then more steps up to the rear of the site.

3. In relation to Tree 1, the applicant is seeking orders for the prevention of damage, prevention of injury to a person, payment of costs associated with the carrying out of any order and compensation for damage to property or injury to a person. The site where the tree is growing is owned by Mr and Mrs Rashid (the respondent) and adjoins the rear of the applicant’s property.

4. Tree 1 is located close to the rear boundary of the respondent’s property and a portion of the canopy overhangs the rear of the applicant’s property.

5. The provisions of section 10(2) of the Trees Act require that I be satisfied that one or more of four tests are met with respect to each tree subject to the application, before I have jurisdiction to consider the application.

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 a person?

6. Only if one or more of the tests is satisfied can I move on to consider what orders, if any, I should make in respect to each of the trees.

The Tree

7. T1 is a mature Eucalyptus species (Mahogany) located at the rear of the respondent’s property close to the common boundary fence with the applicant’s property.

8. The respondent stated that the tree has been in existence for the 35 years in which he has owned and lived at the property.

9. The applicant contends that in December 2014 a large limb and several smaller limbs fell from the tree without warning on a calm and sunny day. The respondent does not dispute this.

10. Both parties have submitted images showing the area under the canopy of the tree shortly after the branch failures.

11. The majority of the failed branches appear to have fallen within the respondent’s property however the images also show branches on the applicant’s side of the fence.

12. The fallen limbs have since been removed from both properties however there is a dead and detached branch still hanging within the portion of the canopy that overhangs the applicant’s rear yard. There is also deadwood and some torn branch stubs within the canopy.

13. As a result of the incident in December 2014 the respondent obtained quotations for the pruning of the tree in January 2015 and in March 2015 submitted an application to Ku-ring-gai Council to obtain permission to have some pruning undertaken. At the time of the hearing the respondent had not yet received a determination relating to the application however a Council Officer had attended the site and inspected the tree.

Damage

14. The applicant contends that when the branches fell from the tree in December 2014 a length of timber was dislodged from the top of the railing that surrounds the deck located at the rear of the site. There were no quotes or paid invoices submitted or presented to the Court for any job to reattach the railing nor had the railing capping been repaired.

15. I was not able to be certain from the images supplied or from anything sighted that the branch failure was the cause of the railing timber to become dislodged.

16. There is no suggestion that the tree is currently causing damage to the applicant’s property.

17. As a result of the foregoing, I am not satisfied that section 10 (2) (a) of the Act has been met in relation to the tree having caused or currently causing damage to the applicant’s property and so in this regard no orders can be made. It therefore follows that this decision also relates to the request by the applicant for compensation.

18. The applicant is concerned that the remaining branches that overhang her property may fall and cause future damage to her property. There is a large timber deck located under the canopy of the tree.

19. As previously noted at (12) there is some deadwood within the portion of the canopy that overhangs the applicant’s property and there is also a detached hanging branch with dead foliage that overhangs the applicant’s deck.

20. The shedding of deadwood and unattached branches is predicable. I consider it likely that this material will fall from the canopy within the near future and it is a theoretical possibility that that the largest of the dead limbs could cause minor damage to the property in such an event.

21. The Court requires that there is more than a theoretical possibility of future damage. In Smith and Hannaford v Zhang & Zhou [2011] NSWLEC 29, at [62] Craig J stated that “something more than a theoretical possibility is required in order to engage the power under the Trees Act”.

22. Given (21) I am not satisfied that that the requirements under 10 (2) (a) of the Act have been met in relation to future damage that may be caused by Tree 1 and therefore no orders can be made in this regard.

Injury

23. The applicant is concerned that injury is likely to occur to persons (particularly to her children who she contends regularly play on the deck under the canopy of the tree) should limbs fall from the overhanging canopy. It was noted that the area under the canopy of the tree comprises a large portion of the useable open space available in the rear yard.

24. The respondent pointed out that the tree was already mature when the deck was constructed. This is noted however it is considered, given the configuration of the rear yard of the applicant’s property, that it is likely the area would be used (especially by children) even without the deck.

25. As previously noted at (12) there is some deadwood within the portion of the canopy that overhangs the applicant’s property and there is also a detached hanging branch with dead foliage that overhangs the applicant’s deck. As previously stated, the shedding of deadwood is predictable and in addition there are several torn branch stubs that will eventually die back to the branch collar and are likely to fall from the tree.

26. I consider it likely that should the unattached branch or any larger sections of deadwood fall they would cause injury if they were to make contact with a person.

27. I am satisfied that the requirements under 10 (2) of the Act have been met in relation to future injury that may be caused by Tree 1 and therefore orders can be made in this regard.

28. The applicant suggested that all of the limbs that overhang her property should be removed. It is considered that the removal of all limbs that overhang the applicant’s property are not warranted and that the appropriate order to mitigate the risk of injury is for the pruning of limbs that are likely to fail in the near future.

Debris

29. The applicant expressed concern that there is an excessive amount of debris that falls from the tree onto the deck. The applicant mentioned that she regularly had to clean up the leaves, twigs and fruits on the deck in order for her children to be able to use the space.

30. I am not satisfied that the debris and leaf litter has caused, is causing or is likely in the near future cause damage to the applicant’s property or injury to persons however if I am wrong in that I would not make orders for the intervention with the tree on the basis of debris. I am guided by the Tree Dispute Principle in Barker v Kyriakides [2007] NSWLEC 292 that says: 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 their gutters and the surrounds of their houses on a regular basis.

Orders

31. As a result of the foregoing, the orders of the Court are as follows:

1. The application is upheld.

2. The application to remove Tree 1 is dismissed.

3. Within 35 days of the date of this order, the respondent is to engage and pay for, an AQF Level 3 Arborist with appropriate insurances to prune Tree 1. All deadwood with a diameter of greater than 20mm at the point of attachment (branch collar) is to be removed from the area of the canopy that overhangs the applicant’s property and to a distance of 2 meters within the respondent’s property. All disconnected (hanging) branches are to be removed from the canopy. All torn branch stubs within the portion of the canopy that overhangs the applicant’s property are to be pruned back to the branch collar. Any branches that are overhanging the applicant’s property and are assessed (by way of an aerial inspection) as being structurally unsound are to be removed.

4. All work shall be carried out in accordance with AS 4373 ‘Pruning of Amenity Trees’ and the WorkCover NSW Code of Practice for the Amenity Tree Industry.

5. The contractor engaged by the respondent is to remove all debris and pruned branches from the works as specified in (3) from applicant’s property.

6. If required, the applicants are to provide reasonable access for the purpose of quoting and or for carrying out the works in order (3). Work is to be carried out during reasonable hours of the day.

7. The respondents are to give the applicants written notice of the works in order (3) a minimum of one week prior to the works being undertaken.

8. For the life of the tree, every two years within two weeks either side of the anniversary of the date of these orders, the respondent is to engage an Arborist to undertake works as specified in (3).

L Durland

Acting Commissioner of the Court

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Decision last updated: 24 June 2015