Lee v Martin

[2010] NSWLEC 1146

Land and Environment Court

of New South Wales

CITATION:	Lee v Martin [2010] NSWLEC 1146
PARTIES:	APPLICANT R Lee RESPONDENTS G & J Martin
FILE NUMBER(S):	20183 of 2010
CORAM:	Moore SC - Galwey AC
KEY ISSUES:	TREES (NEIGHBOURS) :-
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
DATES OF HEARING:	11 June 2010
EX TEMPORE JUDGMENT DATE:	11 June 2010
LEGAL REPRESENTATIVES:	APPLICANT In person RESPONDENTS In person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE SC
GALWEY AC

11 June 2010

20183 of 2010 R Lee v G & J Martin

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

JUDGMENT

1 SENIOR COMMISSIONER: This is an application made pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) concerning a eucalypt located in the rear yard of 5 Montague Street, Illawong. It is, in our opinion, likely that the tree is a Wallangarra White Gum. The tree is some 15 m in height and has a canopy spread of approximately the same distance. There are four major limbs coming from a generally common point of attachment to the major trunk at a point about 3 to 3.5 m above the ground.

2 The application is made by one of the owners of the neighbouring property to the north-west whose swimming pool is located some 2.5 to 3 m away from the trunk of the tree. The applicant has shown us a branch that has fallen in their property recently.

3 The application is based on two foundations under s 10(2) of the Act. The first is that the likelihood of the falling branches (such as that shown to us this morning that is some 60 mm or so in diameter at its point of failure) is a risk of injury to persons using their swimming pool. The second basis upon which they make their application is that there has been damage to their property. In their original application papers they raised the question of damage to a creepy crawly pool cleaner and damage to a grass tree. We have seen, this morning, the damage grass tree on their property.

4 We are satisfied, as a consequence, that there has been damage to their property and thus the Court's jurisdiction is enlivened on that basis. Even if we were not so satisfied, the proximity of the tree, the size of the branches that have fallen and the location in the pool satisfies us that there would also be a risk of injury to persons using their pool. As a consequence the jurisdiction of the Court is also enlivened for 10(2)(b) of the Act.

5 We have carefully examined the tree and considered what options might be available to both remove the risk of injury and remove the possibility of future damage to the applicant’s property.

6 In this regard, we are satisfied that there have been discussions - although they have proved to be futile - over a period of time between the parties concerning the tree. The competing positions that are put to us are:

• on behalf of the applicant that the entirety of the tree should be removed; and
• on behalf of the owners of the tree, that there should be a regime of dead-wooding including the removal of the dead central leader (that is a central leader of the tree that is manifestly dead and has a number of fungi upon it).

7 We have considered what would be the consequences if we were to undertake or require the tree owners to undertake a number of steps concerning the tree. We are of the opinion that, if the central leader were to be removed and the deadwood were to be removed, there is a significant likelihood that the decay that is evidenced by the dead central leader will extend significantly below the junction of that leader with the remainder of the branches coming off as the other three major trunks. As a consequence, we are also satisfied that it would be necessary, in addition to the removal of that dead central leader, to require the removal of the elements of the tree that are, at the present time, alive but would be of a significant risk of failure if the central leader were to be removed and where those elements of the tree overhang neighbouring properties (not only the property of the applicant but the others as there would also be occasioned a risk of injury to persons on those other properties).

8 We are therefore of the view that at least those steps are necessary.

9 We have then contemplated what would be the resulting state of the tree if all elements overhanging neighbouring properties and the dead central leader were to be removed. We are of the view that the likelihood of decay of the major trunk element is such that such elements of the tree as would remain would be at a significant risk of failure and a likely risk of injury to persons on the tree owners' property. As a consequence, although the tree owners have requested that that element of the tree be permitted to remain if the dead-wooding were to occur, we are satisfied that it would not be appropriate to allow that to happen as there would be a remaining high risk of injury to persons. That means that our conclusion is that it is necessary for the entirety of the tree to be removed.

10 As a consequence the orders of the Court are as follows:

1. The respondents are to remove the eucalypt that is located on the boundary of their property adjacent to the applicant's property - being a tree that has four major trunk elements (the central one of which is dead);
2. The tree is to be removed at 600 mm above the ground;
3. The remainder of the trunk, after removal, is to be poisoned;
4. The removal is to be undertaken by an Arborist with AQF Level III qualifications with appropriate WorkCover insurances; and
5. To the extent that it is necessary for there to be access to the applicant's property, if required for the purposes of such removal, the applicant is to afford such access on at least 48 hours notice of such access being required; and
6. The removal of the tree provided for in (1) is to be undertaken within 60 days of the date of these orders.

Senior Commissioner Acting Commissioner of the Court