McFadden v Marshall

[2008] NSWLEC 1135

Land and Environment Court

of New South Wales

CITATION:

McFadden v Marshall [2008] NSWLEC 1135

PARTIES:

APPLICANT
Keith McFadden

RESPONDENT
Judy Marshall

FILE NUMBER(S):

20038 of 2008

CORAM:

Fakes AC

KEY ISSUES:

Trees (Neighbours) :- Pruning of two trees, risk of damage to property or injury to persons

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

CASES CITED:

Black v Johnson [2007] NSWLEC 513
Yang v Scerri [2007] NSWLEC 592

DATES OF HEARING:

27/03/2008

EX TEMPORE JUDGMENT DATE:

27 March 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr K. McFadden, litigant in person

RESPONDENT
Ms J. Marshall, litigant in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes AC

27 March 2008

20038 of 2008 Keith McFadden v Judy Marshall

JUDGMENT

1 This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 made by Mr Keith McFadden of 108 Shepherds Drive, Cherrybrook concerning 2 trees on a property owned by Ms Judy Marshall of 7 Kanangra Drive Cherrybrook.

2 Present at the on site hearing were Mr Rekhraj of 106 Shepherds Drive and Mr Walter of 5 Kanangra Drive Cherrybrook, properties that adjoin the respondent’s property. These neighbours also have an interest in the tree and support the application made by Mr McFadden. The trees were viewed from the properties of all of those present, however, under s7 of the Act, the application is made by one property owner against another on adjacent land and thus this judgement applies only to the applicant and the respondent.

3 The applicant is seeking the pruning of the two trees to minimise the risk of damage to his property or injury to persons. The pruning works are described in an arborist’s report commissioned by Mr McFadden.

4 The trees are 2 mature trees located in the western corner of the respondent’s property and are highly likely to be remnants of the original forest. The smaller of the two is an Angophora costata (Smooth-barked Apple) located approximately 2 metres from the boundary fence with the applicant. The tree has healthy foliage and a normal amount of deadwood. There is evidence of borer damage in some sections of the canopy, in particular, in 2 sections of the major branch that overhangs a pergola in the southern corner of the applicant’s garden. The tree bifurcates into eastern and western leaders. The tree has no central leader as it is suppressed by the larger of the two trees. No structural defects such as decay or included bark were noted.

5 The larger tree is listed as a Eucalyptus botryoides (Southern Mahogany) in the arborist’s report and as Angophora floribunda in an approval to remove the tree granted by Hornsby Shire Council. It is unlikely to be a E. botryoides as it is outside its normal range and growing environment and it was not an Angophora but a species of Eucalypt. It is likely to be one of the ‘stringybarks’ but not fruits were found for a formal identification. This judgement shall refer to it as the large tree. This tree had a diameter at breast height of over 1 m and a height in excess of 25 m. This tree is located approximately 3 m from the boundary with the applicant and 4-5 metres from the boundary with 5 Kanangra Drive. It bifurcates at approximately 10 m. The more upright south-western leader has a cavity on the south-western side approximately 2 m above the bifurcation; the cavity appears to be used by wildlife. The eastern leader has what appears to be old damage on the upper section of this leader. Viewed from the ground, with binoculars, there appears to be some decay or degradation of the wood. There is a normal amount of deadwood on this tree. The tree has a full crown of healthy foliage.

6 The applicant is seeking the removal of what the arborist describes as the “large upper westward heading section of a branch” of the larger tree as well as some reduction pruning of minor overhanging branches. The photograph of this part, submitted by the applicant, shows that this is in fact the eastern section of the tree. He also recommends the cleaning and treating of the borer damage in the Angophora and reduction pruning of overhanging branches. Mr McFadden suggested to Ms Marshall that removal of the trees may be a cheaper long term option.

7 The applicant contends that branches from the trees have caused damage to his property including a pool cover that is now unusable and have punctured the shade cloth on the vine-covered pergola. Two small holes were noted. He stated that these have been mostly dead branches but at least one live branch fell into the pool.

8 The respondent submitted an application to Hornsby Council to remove the trees. Permission was granted for the larger tree but refused for the Angophora costata.

9 Despite applying for permission to remove the trees, the respondent does not want them gone as they were one of the reasons she moved into the area. She is prepared to have the trees pruned. The respondent also raised the fact that the trees were there when she and the applicant moved into the area approximately 24 years ago and that the presence of the trees should have been considered when the neighbours installed their pools, sheds and other structures. She also stated that the trees are used by nesting birds.

10 Under s 10(2) of the Act, the Court must not make an order unless it is satisfied that the trees have caused, are causing, or could, in the near future, cause damage to property or injury to persons.

11 The Court also has to consider matters under s12. The relevant clauses are:

• (d) The trees make a contribution to the local ecosystem and to biodiversity. There was evidence of possums and the cavities are likely to be used by birds and other fauna. The trees are highly likely to be forest remnants.
• (e) The trees make a contribution to the natural landscape and to the scenic value of the land on which they are located;
• (f) due to the height of the larger tree, it is visible within the immediate area and therefore has some value to public amenity and is part of the character of the suburb;
• (h) anything other than the tree that may contribute to the damage. The shade cloth on the pergola was estimated by the applicant to be about 15 years old and it has a vine growing over it. Therefore some degradation is likely.

12 In Black v Johnson [2007] NSWLEC513, the issue of ‘the tree was there first’ is discussed. There may have been less damage and risk of injury if the pergola had not been located directly under the trees although the opportunity to install a pool or otherwise develop the land is limited by the size of the block.

13 The Court is satisfied that given the height of the tree, dead wood falling from the larger of the two trees could cause damage to property or injury to persons in the near future. Similarly, damage or injury could result from two compromised branches on the Angophora. In Yang v Scerri [2007] NSWLEC592, ‘in the near future’ is deemed to be a period of 12 months. Based on the evidence there appears to be less risk of failure of the larger sections in this time frame. Should the eastern part fail, that is, the section of concern to the applicant, it is most likely to fail into the respondent’s property.

14 Therefore the application is granted and the orders of the Court are as follows.

1. The western leader of the Angophora costata is to be removed at the point indicated on the attached photograph. The removal of the entire section is considered to be the most practical option given that 2 significant branches on this section need to be removed as they are structurally compromised by borer damage at their base. Only one significant branch would remain and this would probably produce epicormic shoots that would require on-going management. The tree will have an unusual form but will still provide the respondent with a degree of screening and amenity. The removal of this section will eliminate any risk of damage to the pergola or people using that space from that tree.
2. Deadwood 30 mm and larger in diameter is to be removed from the larger tree within 3m of the boundary fence between the applicant and the respondent.
3. These works are to be carried out within 90 days of the date of these orders. The works are to be carried out by an AQF level 3 arborist with the appropriate insurances and in accordance with AS4373:2007 and the latest version of the WorkCover Code of Practice for the Amenity Tree Industry.
4. The arborist is to carry out an aerial inspection of the tree, and report any concerns to the respondent. Any additional works will be at the discretion of the respondent.
5. The tree is to be deadwooded as described in clause 2 of these orders every 2 years.
6. The works are to be paid for by the respondent.
7. The applicant is to provide access for these works if required. Adequate notice must be given to the applicant by the respondent or their arborist.

___________________

J Fakes
Acting Commissioner of the Court

The final cut must be made at the point indicated on the photograph.