Kengike v Bale
[2017] NSWLEC 1353
•04 July 2017
Land and Environment Court
New South Wales
Medium Neutral Citation: Kengike & anor v Bale [2017] NSWLEC 1353 Hearing dates: 4 July 2017 Date of orders: 04 July 2017 Decision date: 04 July 2017 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is dismissed.
Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); debris; damage or injury not likely in the near future; application dismissed. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: Leufisa Kengike (First Applicant)
Gemma Rose (Second Applicant)
Gavin Bale (Respondent)Representation: Leufisa Kengike & Gemma Rose, Litigants in Person (Applicants)
Gavin Bale, Litigant in Person (Respondent)
File Number(s): 74954 of 2017
Judgment
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
Background
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Gavin Bale (‘the respondent’) owns a residential Erskine Park property on which stands a tall Eucalyptus scoparia (‘the tree’), commonly known as a Wallangarra White Gum. The tree is near the common boundary he shares with Leufisa Kengike and Gemma Rose (‘the applicants’), who have applied to the Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’) seeking orders for the respondent to remove the tree. Before I can make any orders I must be satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicants’ property, or is likely to cause injury to any person (s 10(2) of the Trees Act).
The applicants’ position
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Mr Kengike and Ms Rose expressed their concerns, summed up as follows.
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The tree is large and close to their dwelling. It is a species that sheds limbs. Leaves, twigs, small branches and other debris constantly fall onto their garden and roof, requiring unreasonable amounts of time to clean up. Two larger branches have fallen into their garden within the last two years.
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The tree shades their solar panels and shades their house in winter.
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Tree roots grow beneath their dwelling and may cause damage.
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An arborist has pointed out a wound on the stem and explained that this is an area of ‘tree rot’.
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Most importantly they are concerned that limbs may fall and cause injury. This affects their enjoyment of their property, as their children might otherwise spend more time in the garden.
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They applied to Penrith City Council some years ago for permission to remove this tree as well as another two trees on the respondent’s property. Council approved removal of the other two trees and pruning of this tree. The applicants say that the respondent waited until part of a tree fell on their dwelling before carrying out the works. In their view, this shows a lack of proactive maintenance on the respondent’s part.
The respondent’s position
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The respondent does not think the tree is dangerous, but would remove it if it was found to be so. He points out that Council’s Tree Management Officer permitted deadwood removal only, presumably because they could not identify any other problems. During a more recent inspection Council’s Tree Management Officer identified the presence of some deadwood but commented that this was only sparse.
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An arborist pruned the tree less than 12 months ago, removing deadwood and a low limb growing toward the applicants’ dwelling.
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Mr Bale says the tree provides many benefits: it contributes to public amenity, gives them shade in summer, gives some screening from wind and smoke, and provides birds with habitat. He points out that it would take many years for a new tree to develop a canopy of this size to replace these benefits.
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Mr Bale says that more than 70% of the tree’s canopy is over his own property, and no major limbs extend above the applicants’ dwelling.
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Mr Bale was unaware that two limbs have fallen into the applicants’ garden.
Findings
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The tree is around 20 metres tall. It is within a couple of metres of the applicants’ dwelling.
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I accept both parties’ statements regarding the tree, its history and their attitudes towards it.
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Bringing my own arboricultural expertise to the matter, I note that the tree appears to be healthy. Apart from the stem wound at a height of approximately 5 metres, there are no defects apparent from a ground-based visual assessment of the tree. The wound at 5 metres extends around less than a third of the stem’s girth and does not show visible signs of extensive decay. There is nothing to suggest the stem is likely to fail in the foreseeable future. Two limbs attached to the stem adjacent to this wound are relatively small and unlikely to cause damage or injury.
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The tree sheds debris, as expected, but there is no claim that this has caused damage or injury. Fallen limbs have not caused injury. No evidence was adduced that tree roots are likely to cause damage. Regarding the risk of damage or injury from limbs falling in the near future, the Court has consistently considered, since Yang v Scerri [2007] NSWLEC 592, that a period of 12 months reasonably represents ‘the near future’. Although I accept that the applicants are genuinely concerned that limbs might fall and injure someone, based on my observations I am not satisfied that this is likely in the near future. The Court’s jurisdiction is therefore not enlivened and I cannot make any orders.
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Despite this finding, I note that the tree is a large and growing dynamic organism. The responsibility of having the tree regularly inspected and maintained by suitably qualified professionals lies with its owner. This would be assisted by the applicants notifying him promptly of any major limb failures.
Orders
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The orders of the Court are:
The application is dismissed.
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D Galwey
Acting Commissioner of the Court
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Decision last updated: 04 July 2017
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