Kovacic v Smith
[2016] NSWLEC 1103
•11 March 2016
Land and Environment Court
New South Wales
Medium Neutral Citation: Kovacic v Smith & anor [2016] NSWLEC 1103 Hearing dates: 11 March 2016 Date of orders: 11 March 2016 Decision date: 11 March 2016 Jurisdiction: Class 2 Before: Durland AC Decision: The application is upheld
Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); future damage, future injury, pruning ordered Legislation Cited: Trees (Disputes Between Neighbours Act) 2006 (NSW) (2009) Category: Principal judgment Parties: B Kovacic (Applicant)
C Smith and S Smith (Respondents)Representation: B Kovacic, litigant in person (Applicant)
C Smith and S Smith, litigants in person (Respondents)
File Number(s): 21093 of 2015
Judgment
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
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This is an application pursuant to section 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) concerning a tree located in the northern Sydney suburb of St Ives.
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The tree is identified in the application as Tree 1.
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The applicant (Mr Kovacic) owns the property directly to the rear of the property where the tree is located.
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Both the applicant and the respondents’ (Mr and Mrs Smith) properties are well vegetated with mature trees and shrubs.
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Tree 1 is located in the rear corner of the respondents’ property and a portion of the canopy overhangs the applicant’s property.
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In relation to Tree 1 the applicant is seeking orders for the removal of the tree or the pruning of all large diameter branches that overhang his property.
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The applicant contends that a fallen limb from the tree has caused damage to his property in the past and that the tree will cause damage in the future or injury to a person.
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Should the application be dismissed the respondents are seeking reimbursement for the costs of the arboricultural report they commissioned. Commissioners and Acting Commissioners do not have the power to order the payment of legal costs, cost of expert reports and other expenses. Claims for these costs must be made by a Notice of Motion which will be heard and determined by a Judge or Registrar.
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The provisions of section 10(2) of the 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?
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 the tree.
Tree 1
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Tree 1 is a mature Cedrus deodara (Himalayan Cedar) located close to the common rear boundary fence with the applicant’s property.
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The respondents stated that the tree was well established when they purchased their property 19 years ago and estimate the tree to be approximately 45 years old. The applicant agreed that the tree was well established when he purchased his property.
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A portion of the lower section of the canopy overhangs the applicant’s property by approximately 3-4 metres. The canopy is notably less dense on the applicant’s side.
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The applicant contends that in June 2015 a branch fell from the tree and came to rest on the pool fencing. Images of the limb resting on the pool fence have been submitted with the application.
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The applicant also contends that a branch fell from the tree in 2009 however no evidence was submitted in that regard.
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The respondents stated that there have been no branch failures on the side of the canopy within their property. No evidence of branch failures could be sighted.
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As a result of the branch failure in 2015 the respondents engaged an arborist to remove the remaining stub from the tree where the limb had broken off, remove the limb from the applicant’s property and also to prune off any other limbs that the arborist deemed as requiring removal.
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The limbs of the tree that were removed by the arborist in conjunction with the branches that have been pruned to the property boundary have left a gap in the canopy in the section that would have been overhanging the applicant’s pool.
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The respondents submitted a statement of evidence prepared by Andrew Scales from Naturally Trees. The report documents the health and structural integrity of the tree and includes a risk assessment. Mr Scales has assessed the trees as being in good to excellent health and structural condition with no visible defects.
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With the expertise that I bring to the Court I agree that there are no visible defects that would suggest (with the exception of 2 broken and partially detached branches) that the limbs overhanging the applicant’s property are structurally unsound.
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In relation to the risk assessment Mr Scales has rated the tree in the category that the risk of harm is ‘Broadly Acceptable’ and as a result has recommended that the tree does not require any formal pruning to improve the risk. Mr Scales also goes on to recommend that the partially failed overhanging branch be removed and that the stubs resulting from the branches pruned to the property boundary be removed. Mr Scales used the QTRA method to assess the risk posed by the tree.
Damage/Injury
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The applicant contends that when the limb fell from the tree in June 2015 the pool fence was damaged and subsequently the damaged panel was replaced. There were no quotes or paid invoices submitted with the application in relation to a replacement pool fence panel.
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One of the images included in the application shows a detached branch (approximately 100mm in diameter at the point where it had broken from the tree) resting on top of the pool fence. The applicant contends that as a result of the branch falling on the panel that the top and bottom railings had been bent out of alignment and had a bow in the centre.
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I was not able to be certain from the image submitted that the branch failure had caused damage to the pool fence panel. Even if I am wrong in that, on balance when considering the minor nature of the alleged damage, the considerable amenity value of the tree and that the pruning of healthy branches would have a detrimental impact on the tree, orders in this regard would not be appropriate.
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There is no suggestion that the tree is currently causing damage to the applicant’s property.
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The applicant is concerned that the remaining branches that overhang his property may in the future cause damage to the property or injury to a person.
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As previously noted there are two hanging and partially detached branches in the canopy. There is also a minor amount of deadwood.
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The shedding of deadwood and unattached or partially detached hanging branches in the canopy is predictable. I consider it likely that should the poorly attached or unattached branches or larger deadwood fall and make contact with a person it is likely that injury would occur.
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I am satisfied that the requirements under s10 (2) of the Act have been met in relation to future injury that may be caused by Tree 1 and therefore the jurisdiction of the Court is enlivened.
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The applicant suggested that all of the limbs that overhang his property should be removed.
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I consider it inappropriate to order the removal of large diameter healthy branches that are structurally sound. The impact on the tree would be detrimental from an arboricultural and aesthetic perspective and could increase the likelihood of branch failures in the future due to increased exposure.
Orders
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On the basis of the foregoing, the Orders of the Court are:
The application to remove the Cedrus deodara (Himalayan Cedar) is dismissed.
The application to prune all large diameter branches from the Cedrus deodara (Himalayan Cedar) that are overhanging the applicant’s property is dismissed.
Within 30 days of the date of this order the respondents are 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 metres within the respondents’ property. All detached or partially detached (hanging) branches are to be removed from the canopy. Any branches that are overhanging the applicant’s property and are assessed (by way of aerial inspection) as being structurally unsound are to be removed.
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.
The applicant is to provide reasonable access (if required) for the purpose of quoting and for the safe and efficient carrying out of the works in order (3). The applicant must provide the respondents with his contact details and work is to be carried out during reasonable hours of the day.
The respondents are to give the applicant written notice of the works in order (3) a minimum of one week prior to the works being undertaken.
Every 2 years, within 14 days of the anniversary of the date of these orders, the works as specified in (3) shall be undertaken.
L Durland
Acting Commissioner of the Court
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Decision last updated: 24 March 2016
Kovacic v Smith [2016] NSWLEC 1103
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