Johnson v Morrow

[2008] NSWLEC 1343

Land and Environment Court

of New South Wales

CITATION:

Johnson v Morrow [2008] NSWLEC 1343

PARTIES:

APPLICANT
Raymond Johnson

RESPONDENT
Damien Morrow

FILE NUMBER(S):

20517 of 2008

CORAM:

Thyer AC

KEY ISSUES:

Trees (Neighbours) :- Removal of tree, risk of injury to persons, damage to property.

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

11/08/2008

EX TEMPORE JUDGMENT DATE:

11 August 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr R. Johnson, litigant in person

RESPONDENT
Mr T. Stapleton (Agent - property manager from Baird Real Estate)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Thyer AC

11 August 2008

20517 of 2008 Raymond Johnson v Damien Morrow

JUDGMENT

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

1 ACTING COMMISSIONER: Mr Johnson, owner of 12 Stephen Street, Cessnock has applied to the Court for orders that a Gum tree (Eucalyptus sp.) be removed. The tree is situated on 10 Stephen Street, Cessnock which is the adjoining property to the south owned by Mr Morrow. The tree is growing near the common boundary about one quarter the distance along Mr Johnson’s side boundary from the eastern end of his property.

2 Mr Johnson has lived at his property for 41 years. He and his wife have bird aviaries in the backyard and like to spend time in the backyard. They have a carport near the tree. The tree is now large and overhangs the carport and halfway across their yard. They are concerned that the tree is in poor health, has dropped a large live branch and many dead branches, and there are dead branches still in the canopy that could cause damage or injury if they fell. They seek orders that the tree be removed.

3 Mr Morrow is an absent landlord. His property is tenanted and managed by Baird Real Estate, Cessnock. Mr Morrow was represented at the hearing by Mr Timothy Stapleton, the employee of Baird Real Estate who manages the property. Mr Stapleton spoke with Mr Morrow and received his directions during the hearing.

4 When assessing an application under the Trees (Disputes Between Neighbours) Act 2006 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 the 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?

5 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?

The tree

6 I observed that the tree is a Gum tree (Eucalyptus sp.) with height and spread of about 18m. It appears to have good vigour and a full and well balanced canopy. The trunk is elongated in section near the base having thickness of 1 m north – south and 2 m east - west at breast height. The tree has four large trunks arising at 1 – 2 m above the ground. The second trunk from the east has a large scar about 0.25 m wide extending from 1m height to 3m height. The third trunk is squeezed between the second and fourth trunks with extensive included bark. This third trunk appears to be the most rapidly growing, possibly due to the scar on the second trunk, but its increasing upper size is not matched by increasing girth at its origin. I consider that the third trunk presents a serious structural problem and likelihood of failure. There appears to be a saw cut on the western side of the tree near ground level that indicates to me that a trunk of about 0.3 m diameter has been removed. There is a recess on the southern side of the base of the tree but this could not be investigated as there were two large guard dogs on Mr Morrow’s property and access had not been arranged with the tenant. There is also serious bark inclusion at about 6 m height on the second trunk where it divides into three secondary trunks. There are also numerous areas of bark damage up to about 6 m height. I observed at least 10 dead branches in the canopy with diameter greater than 60 mm and lengths of about 2 m.

7 Mr Johnson has advised that the tree dropped a live branch of 100 – 150 mm diameter and 6 m length about eight years ago, and about 40 dead branches of about 60 mm diameter and 2 – 3 m length over the last eight to nine years.

Damage

8 I observed that the colorbond style metal boundary fence has been damaged and pushed out of alignment beside the tree. I accept Mr Johnson’s advice that the fence was installed in 2000, and the agreement of both parties that the damage is caused by the tree. The fence is owned by both parties and is thus partly the property of Mr Johnson. On this basis I find that damage to the fence meets the first and second tests in s 10(2) (a) of the Act.

9 Although one live branch and many dead branches have fallen in the last nine years, none of those are reported to have caused any damage to Mr Johnson’s property. Mr Johnson is fortunate to have a large backyard and has made some effort to remove items of property that may be damaged from under the tree. On that basis I do not find it likely that falling branches will cause damage in the near future, being a period of at most one year from now. Therefore I do not find the fact that dead branches may fall sufficient to meet the third test in s 10(2) (a) of the Act in this particular case.

10 I have described serious structural problems associated with the third trunk of the tree, and that failure of that trunk or the trunks either side is likely to cause damage. However, I am not satisfied that such failure is likely in the near future so it does not meet the third test in s 10(2) (a) of the Act.

Likelihood of injury

11 I have described the likelihood of falling dead branches and likely failure of the third trunk and possibly those either side of it. For injury, the test in s 10(2) (b) of the Act is not restricted to the near future, it only need be likely, and may be injury to any person not only a person on Mr Johnson’s property. As failure of dead wood and a large portion of the tree is likely, and accepting the Johnson’s use of their backyard and his tenants or other’s use of Mr Morrow’s backyard, I find that injury is likely and the test in s 10(2) (b) of the Act is met.

Considerations

12 Before determining the application I am required to consider matters in s 12 of the Act.

13 Under s 12 (d) of the Act, I find that the tree is likely to contribute to the local ecosystem and biodiversity by providing food and shelter for various fauna.

14 Under s 12 (e) of the Act, I find that the tree is a significant landscape element in Mr Morrow’s yard and Mr Johnson’s yard, providing an attractive visual feature beneficial summer shade. Also, the tree is visible from surrounding properties and streets and contributes to the lightly wooded rural scenic values of the local area.

15 Under s 12 (f) of the Act, I find that the tree provides intrinsic value through local climate amelioration, oxygen production and carbon sequestration.

Conclusion

16 Although I find that the tree has beneficial features, it has serious structural problems that will worsen as it grows and are likely to cause injury when it fails. Therefore I find that the tree should be removed to avoid the likelihood of injury.

Orders

17 The Orders of the Court are:

A. The application is upheld;
B. 1) Mr Morrow shall remove the Gum tree by 31 October 2008, at his cost. The removal shall be done by an arborist with AQF Level 3 qualifications and suitable insurances;
2) All tree debris from the work shall be removed from Mr Johnson’s property at Mr Morrow’s cost, through 10 Stephen Street;
3) Mr Johnson shall permit access to his property for the purpose of the above tree removal and cleaning up provided that access is on reasonable notice and at reasonable times on normal working days between 7.00 am – 6.00 pm Monday to Friday and 7.00 am – 1.00 pm Saturday, and Mr Johnson is able to supervise that access;
4) No trucks are to enter Mr Johnson’s property as part of the removal or clean up of the Gum tree;
5) Mr Morrow shall repair the fence on the alignment at his cost by 31 October 2008;
6) Mr Morrow shall plant a suitable replacement tree on his property and nurture it to maturity. The tree must be healthy nursery stock of at least 25 litre pot size at planting. The tree must be capable of growing to at least 10 m height and spread, be planted in a location that is unlikely to cause damage, injury or annoyance to neighbours, and be planted more than 2 m from boundaries.

___________________

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