Lilly and Rutherford v Worimi Aboriginal Community Co-Operative Ltd (In Administration)

[2018] NSWLEC 1611

Land and Environment Court

New South Wales

Medium Neutral Citation:	Lilly & Rutherford v Worimi Aboriginal Community Co-Operative Ltd (In Administration) [2018] NSWLEC 1611
Hearing dates:	20 November 2018
Date of orders:	20 November 2018
Decision date:	20 November 2018
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	See orders at [11].
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – Part 2A application – trees are not planted so as to form a hedge – Part 2 application – risk of injury
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 (NSW)
Texts Cited:	AS4373:2007 Pruning of amenity trees WorkCover NSW Code of Practice for the Amenity Tree Industry
Category:	Principal judgment
Parties:	Amanda Lilly (First Applicant) Richard Rutherford (Second Applicant) Worimi Aboriginal Community Co-Operative Ltd (In Administration) (Respondent)
Representation:	A Lilly and R Rutherford, litigants in person (Applicants) P Campion, agent (Respondent)
File Number(s):	2018/275046
Publication restriction:	No

Judgment

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

Background

1. Amanda Lilly and Richard Rutherford (‘the applicants’) have applied to the Court pursuant to both s 7 and s 14B of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’) seeking orders relating to three neighbouring trees.

2. Their application under Part 2 of the Trees Act concerns a large mature Blackbutt (Eucalyptus pilularis) on a neighbouring property owned by Worimi Aboriginal Community Co-Operative Ltd (In Administration) (‘the respondent’), near the common boundary shared by the two properties and near the front boundary of the respondent’s property. The applicants are concerned about injury and damage likely to be caused by limbs falling from the tree.

3. Their Part 2A application concerns the same Blackbutt and two Broad-leaved Paperbarks (Melaleuca quinquenervia) that they say obstruct sunlight to windows of their dwelling.

Part 2A – obstruction of sunlight

4. I will first deal with the Part 2A application, where s 14A(1) of the Trees Act restricts the part’s jurisdiction to groups of two or more trees that are planted so as to form a hedge. These are three mature, indigenous trees that grew here before any of the current residents lived at either property. They are most likely self-sown. I cannot be satisfied that they were planted, nor that they form a hedge. They do not fall within the jurisdiction of Part 2A of the Trees Act, so this element of the application will be dismissed.

Part 2 – risk of injury

5. For their Part 2 application, Ms Lilly and Mr Rutherford pointed out the deadwood present in the Blackbutt’s crown above their property, and long limbs extending above their property, over their front garden and toward their dwelling. They are concerned such limbs can fall anytime, and that they would cause serious injury should they strike anyone. Indeed, while we stood on the naturestrip two dead limbs fell from some height and landed near us. Either would have caused some injury had they hit anyone.

6. According to Mr Campion, for the respondents, the Blackbutt is a typical example of this indigenous species in the area, with many such trees nearby. The authority responsible for maintaining the powerlines has pruned the tree above the wires to the extent they require. They will prune it again in the near future. Mr Campion argued that such pruning could be carried out over the applicants’ property. He says removing the tree would be a disproportionate response to the level of risk.

7. Mr Mayers, from the NSW Department of Environment and Heritage, pointed out the importance of this species in the local vegetation community. He is of the view that this tree is typical of mature examples of the species in the area.

8. Ms Lilly and Mr Rutherford pointed to pruning that had been done over the respondent’s property, while parts of the tree over their own property have not been pruned. The respondents explained that this pruning was done to facilitate removal of an adjacent tree.

Findings

9. I accept that deadwood and other limbs are likely to fall from the Blackbutt in the near future, and this is likely to result in injury if someone is hit. Removing the tree is unnecessary as pruning can sufficiently mitigate the risk. The tree’s overall crown structure appears good, apart from some deadwood and some overextended limbs; the stem is without major defects; and the root buttress appears stable.

10. Deadwood and long, overextended limbs above the applicants’ property can be removed or selectively pruned. As the powerline authority maintains the canopy above the wires, I will not include orders for that part of the tree. However, one limb that is partly above the applicants’ property has a defect at its base and should be removed. It is also partly above the powerlines. The respondent has communicated with contractors responsible for maintaining powerline clearances and was told they would remove that limb. If this has not been done within six months, the respondent must engage an arborist to do the work.

Orders

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

1. Within 60 days of the date of these orders, the respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances to prune the Blackbutt near their front boundary to:

1. Remove deadwood greater than 25 mm diameter above private property;

2. Remove the two lowest limbs over the applicants’ property back to branch collars, and reduce other overextended limbs in the lower half of the canopy over the applicants’ property to suitable lateral branches (see attached photographs);

3. Remove any other hazardous limbs (other than the limb in order (2)) over the applicants’ property identified by the arborist during the pruning works.

2. If within six months of the date of these orders, the limb with a defect at its base (see attached photographs) has not been removed by the authority responsible for maintaining powerline clearance, the respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances to remove the limb to its branch collar within 9 months of the date of these orders.

3. 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.

4. The respondent is to give the applicants 7 days’ notice of all works ordered above.

5. 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

Photos for orders (522 KB, pdf)

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Decision last updated: 29 November 2018