Mackay v Grasso

[2008] NSWLEC 1224

Land and Environment Court

of New South Wales

CITATION:

Mackay v Grasso [2008] NSWLEC 1224

PARTIES:

APPLICANT
Philip Mackay

RESPONDENT
Vince Grasso

FILE NUMBER(S):

20184 of 2008

CORAM:

Thyer AC

KEY ISSUES:

Trees (Neighbours) :- Removal of tree, risk of injury

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

22/05/2008

EX TEMPORE JUDGMENT DATE:

22 May 2008

LEGAL REPRESENTATIVES:

APPLICANT
Philip Mackay

RESPONDENT
N/A

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Thyer AC

22 May 2008

20184 of 2008 Philip Mackay v Vince Grasso

JUDGMENT

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

1 ACTING COMMISSIONER: The large rough-barked Angophora tree in the backyard of Mr Grasso’s property overhangs both the street and Mr Mackay’s property by about 5 m. A neighbour recalls the tree being about fence height 30 years ago. It is now about 18 m tall. The tree flowers prolifically and drops many small seed capsules. Mr Mackay is concerned that these capsules are slippery and dangerous for pedestrians on his property and the public footpath. The public footpath has been lifted by roots of the tree and replaced by the local Council recently. It has been replaced at least once previously according to Mr Mackay’s neighbour. The tree also drops small branches, twigs and leaves.

2 Mr Mackay bought his property on the southern side of the tree in 1997 and carried out major renovations in 2003. The renovations include a new carport and work at the front of the house under the tree. His family now does not use the front room under the tree as a bedroom for fear of falling branches.

3 Mr Mackay is also concerned that the tree may fall towards the street bringing down the power lines.

4 Mr Mackay seeks orders that the tree be removed due to its risk of injury to people. Mr Grasso, the owner of the tree was not present at the hearing.

5 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?

6 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

7 The tree appears to be a rough-barked Apple (Angophora floribunda) about 18 m tall with a spread of about 15 m and trunk diameter of 0.9 m at breast height. It is growing in the south-eastern corner of the backyard of 1 Queen Street, Croydon Park, about 2 m from the common boundary with Mr Mackay’s property at 1 Tavistock Street, Croydon Park and about 2 m from the boundary with Tavistock Street.

8 No expert evidence was provided in relation to the tree. Mr Mackay advised that no large branches have fallen from the tree, but twigs up to finger thickness fall frequently.

9 My observation was that the tree appeared to be a healthy tree, approaching maturity with a full, well balanced crown. The trunk had a slight lean to the north, away from Mr Mackay’s property. The tree had a central main trunk with some heavy, well tapered branches. I did not observe any included bark in the branch junctions, or any other indications of damage or weakness in the trunk or branches. I did not see any dead wood with diameter larger than about 30 mm. A root of about 0.25 m diameter had been cut outside the boundary beside the public footpath. I observed the ground around the base of the tree and did not see any surface roots or evidence of socketing.

Is the tree likely to cause injury ?

10 Mr Mackay’s application is for removal of the tree to avoid risk of injury to people. He has reported his fear that large branches may fall on his house but also advised that no large branches have fallen. He has not provided any expert evidence that a large branch is likely to fall, and I have not observed any weakness in the tree that would indicate branch failure is likely.

11 Mr Mackay is also concerned that small branches and twigs dropping from high in the tree could cause injury, and that the small seed capsules are a slip hazard on pavement. I accept his concern but consider that the tree does not present an unusual risk and is unlikely to cause injury in that manner. I find it reasonable that normal housekeeping of his property would include sweeping of seed capsules from paved areas, and that pedestrians should take care when tree debris is visible on a public footpath.

12 Mr Mackay expressed concern that someone might have breathing difficulties caused by the large amount of flower debris that falls from the tree for about a month in summer, but was not aware of anyone so affected.

13 Lastly, Mr Mackay is concerned that the whole tree may fall over the road bringing down the electricity lines. As the tree shows no sign of weakness in the trunk or evidence of looseness in the ground, that possibility does not seem likely.

Conclusion

14 There is no evidence that the tree is likely to cause injury to people. Therefore the tree does not meet the test in s 10(2) (b) of the Act and in that regard is not within the jurisdiction of the court. As risk of injury was the only basis on which Mr Mackay brought the application to the Court, I intend to dismiss the application.

Orders

15 The orders of the Court are that the application is dismissed.

___________________

Peter Thyer
Acting Commissioner of the Court