Jamieson v Tho and Hoang

[2019] NSWLEC 1092

Land and Environment Court

New South Wales

Medium Neutral Citation:	Jamieson v Tho and Hoang [2019] NSWLEC 1092
Hearing dates:	28 February 2019
Date of orders:	28 February 2019
Decision date:	28 February 2019
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The orders of the Court are: (1)   Within 60 days of the date of these orders, the respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances to carry out the following works to the gum tree near their rear boundary: (a)   remove deadwood greater than 25 mm diameter above the laneway and the applicants’ property; (b)   prune the lowest branches over the applicants’ property, reducing back to suitable lateral branches, removing no more than 10% total live crown mass; and (c)   inspect the entire tree crown and remove any other limbs identified as hazardous. (2)   All pruning works ordered above must be carried out in accordance with AS4373:2007 Pruning of amenity trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry. (3)   The respondents are to give the applicants 7 days’ notice of all works ordered above. (4)   The applicants are to allow all access required to complete the works ordered above during reasonable hours of the day.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – risk of injury or damage – pruning
Legislation Cited:	Trees (Disputes Between Neighbours Act) 2006 (NSW)
Cases Cited:	Yang v Scerri [2007] NSWLEC 592
Texts Cited:	AS4373:2007 Pruning of amenity trees WorkCover NSW Code of Practice for the Amenity Tree Industry
Category:	Principal judgment
Parties:	Damien Jamieson (First Applicant) Felicia Jamieson (Second Applicant) Jennifer Sze Tho (First Respondent) Minh Hoang (Second Respondent)
Representation:	F Jamieson, litigant in person (Applicants) J Tho and M Hoang, litigants in person (Respondents)
File Number(s):	2018/343123
Publication restriction:	No

Judgment

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

Background

1. A heavy branch fell last year from a large gum tree growing on the Lane Cove property belonging to Ms Tho and Mr Hoang (‘the respondents’). The branch fell into the laneway behind their property. Their neighbours, Damien and Felicia Jamieson (‘the applicants’), were concerned that other branches above their daughters’ bedroom might fall. They obtained a quote from an arborist for pruning the tree and a permit from Lane Cove Council to carry out “…selective pruning and weight-reduction of 3rd order branches over neighbouring properties…”. The respondents’ permission was required if the arborist wanted to access their property but was not granted. Wanting to do more than prune only overhanging branches, the applicants did not engage the arborist, instead applying to the Court, pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’), seeking orders for the respondents to “…remove dangerous heavy branches…” and to remove from the applicants’ property a concrete slab they say was left there when the respondents were building 21 years ago.

Relevant framework of the Trees Act

2. The Court’s jurisdiction with the Trees Act is constrained by s 10(2), which states:

10 Matters of which Court must be satisfied before making an order

(1) …

(2) The Court must not make an order under this Part unless it is satisfied that the tree concerned:

(a) has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or

(b) is likely to cause injury to any person.

3. The applicants do not allege that the tree has caused any damage. They fear it is likely to cause damage to their property in the near future or is likely to cause injury.

4. The Trees Act enables the Court to make a range of orders with specific aims, as set out at s 9:

9 Jurisdiction to make orders

(1) The Court may make such orders as it thinks fit to remedy, restrain or prevent damage to property, or to prevent injury to any person, as a consequence of the tree the subject of the application concerned.

(2) …

5. As I explained to Mrs Jamieson at the onsite hearing, s 9 of the Trees Act does not enable the Court to make orders for the removal of concrete that is unrelated to the tree or any damage or injury the tree might cause.

6. Finally, before making any orders I must consider the matters set out at s 12 of the Trees Act.

The tree

7. Neither party has obtained an assessment of the tree from an arborist. The applicants’ quote for tree pruning mentions the presence of fungus in branches. With my own arboricultural expertise and experience, I assessed the tree visually from the ground during the onsite hearing.

8. The Sydney Blue Gum (Eucalyptus saligna) (‘the tree’) grows close to the respondents’ rear boundary. It is over 20 metres tall with a stem diameter of more than one metre near ground level. Its crown is healthy, densely foliated and without major defects visible from the ground.

9. Mrs Jamieson expressed concern about a discoloured area on a large branch that grows toward and over her property. Darker bark on that branch surrounds an area where another branch rests on it.

Orders can be made for the tree

10. Large deadwood is present in the tree’s crown. The branch that fell last year was alive, apparently with signs of fungus in its wood where it broke away from the tree. A large stub remains in the tree indicating from where the branch fell. The presence of a fungus in that branch does not indicate other branches are similarly affected. An inspection by a climbing arborist would reveal whether other large branches have wounds or decay.

11. Some branches lower in the crown are becoming overextended, increasing their risk of failure. I accept the applicants’ submissions that these limbs, along with dead branches mentioned above, are likely to cause damage to the applicants’ property or injury in the near future, a period I regard as 12 months as discussed in Yang v Scerri [2007] NSWLEC 592. It follows that I can make orders for this tree.

Debris

12. Mrs Jamieson complained of the amount of debris the tree drops, saying that another neighbour cleans up leaves and twigs from the laneway. As there is no suggestion that this debris has caused damage, or is likely to cause damage or injury, this issue is not relevant to my decision.

Matters to consider

13. I have considered the matters at s 12 of the Trees Act and consider the following relevant.

• The tree is located near the boundary and overhangs the applicants’ property.

• A permit is required to prune or remove the tree.

• The tree makes a significant contribution to landscaping of the applicants’ property and those surrounding them. It contributes significant shade, cooling and other environmental benefits; it is indigenous to the area and contributes to the local ecosystem; it has value to public amenity.

• Pruning to the extent required to minimise risk would not adversely affect the tree. Overextended branches should be reduced above the applicants’ property and dead branches should be removed over their property and the rear laneway. At the same time, the arborist carrying out these works should closely inspect other branches throughout the entire crown for defects and remove any hazardous branches.

14. As there is no reason to order otherwise, the respondents will be responsible for engaging an arborist and paying for the works.

Orders

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

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

1. remove deadwood greater than 25 mm diameter above the laneway and the applicants’ property;

2. prune the lowest branches over the applicants’ property, reducing back to suitable lateral branches, removing no more than 10% total live crown mass; and

3. inspect the entire tree crown and remove any other limbs identified as hazardous.

2. All pruning works ordered above must be carried out in accordance with AS4373:2007 Pruning of amenity trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry.

3. The respondents are to give the applicants 7 days’ notice of all works ordered above.

4. The applicants are to allow all access required to complete the works ordered above during reasonable hours of the day.

……………………………….

D Galwey

Acting Commissioner of the Court

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