McGee v Sykes

[2010] NSWLEC 1216

Land and Environment Court

of New South Wales

CITATION:

McGee v Sykes [2010] NSWLEC 1216

PARTIES:

APPLICANTS
Mr R. McGee
Mrs H McGee

RESPONDENTS
Mrs C Sykes
Mr K Sykes

FILE NUMBER(S):

20328 of 2010

CORAM:

Fakes C

KEY ISSUES:

TREES (NEIGHBOURS) :- Damage to property
Injury to persons
Removal refused

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

5/8/2010

 
DATE OF JUDGMENT: 

5 August 2010

EX TEMPORE JUDGMENT DATE:

5 August 2010

LEGAL REPRESENTATIVES:

APPLICANTS
R and H McGee {litigants in person}

RESPONDENTS
C Sykes {litigant in person}

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C

5 August 2010

20328 of 2010 McGee v Sykes

JUDGMENT

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

1 COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Lemon Tree Passage against the owners of trees growing on an adjoining property.

2 The applicants are seeking the removal of the tree as they contend that the tree has caused damage to their property and could continue to do so. They are also concerned that the tree could cause injury to any person.

3 The tree subject to this application is a mature Eucalyptus pilularis (Blackbutt).

4 Under s 10(2) of the Act, the Court must not make an order unless it is satisfied that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property or is likely to cause injury to any person. Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of whether the damage or likely risk of injury is sufficiently serious to warrant the intervention of the Court.

5 The tree is a healthy mature specimen growing at the rear of the respondents’ property. About 5% of the canopy overhangs the applicants’ property and less than 5% of the overall canopy is dead wood. The size, species and proximity to an adjacent bushland reserve indicate that it is likely to be a remnant of the original plant community.

6 The respondents purchased their property in 2000. The applicants purchased their property some three and a half years ago. It would appear from the evidence that, as a result of concerns and complaints from the applicants, the respondents applied to Port Stephens Council (the council) to have the tree removed. This was refused.

7 The applicants contend that some two years ago, dead branches falling from the tree cracked tiles on their roof. They are also concerned that branches overhanging their property could cause future damage or injury.

8 It was stated that the applicants brought the damage to the attention of the respondents but did not show them any evidence of the damage. No evidence of the damage was seen at the on-site hearing as the tiles have been replaced.

9 In March 2010, the applicants engaged Mr Chapman of Brad Chapman Professional Tree Services to remove branches overhanging their roof. The respondents gave permission for this to be carried out.

10 The evidence of this work was noted at the hearing and only a relatively small percentage of the canopy overhangs the applicants’ property. The bulk of the canopy overhangs a portion of the respondents’ property that is not frequently used.

11 According to the applicants, Mr Chapman did not complete the work as he was concerned about the integrity of a decayed fork in the tree and considered it would be unsafe to continue working in the tree.

12 Exhibit A of the applicants’ evidence contains a letter written by Mr Chapman and signed on 24 March 2010. The letter is addressed “To whom it may concern” and is reproduced (exactly as it was written excluding personal details) below.

I was instructed by Mr XXXX to remove some large limbs over his roof on a very large Blackbutt in the adjoining property XXXX. I removed some lower limbs and then proceeded to climb up into the crown to remove some of the higher limbs when I noticed to areas of concern, the tree has a crotch approximately half way up where it separates into 2 very large crown 1 is leaning over Mr XXXX house at around 65 deg in this crotch there is a large amount of decay, further up this section there is a wound with decay and swelling these are both potential failure points, I decided that the tree was unsafe and stopped work immediately I then informed XXXXX that the tree was unsafe as the large crown is leaning over there house a very high risk and needed to be removed as soon as possible.

13 It was stated at the hearing that Mr Chapman advised the applicants that the tree could fail tomorrow or in years to come but they should not sleep on the side of the house closest to the tree. It is on the basis of Mr Chapman’s opinion that the applicants rely in making the application to remove the tree.

14 The applicants stated that Mr Chapman took photographs of the sections he was concerned about however these were not tendered in evidence. Mr Chapman was not present at the hearing to discuss his opinions.

15 Mr Chapman’s letter does not provide any detail as to the extent of the decayed section, the dimensions of the cavity or any estimate of the thickness of the remaining tissue. He makes no recommendations for further quantitative assessment to determine the likelihood of failure despite these procedures being commonly undertaken by arborists.

16 I inspected the tree from the ground and from elevated decks on both properties and from the street. Binoculars were used to view the upper parts of the canopy.

17 I was able to see the crotch referred to by Mr Chapman. It appears that there is a cavity at the base of a bifurcated portion of the canopy, a portion of which overhangs part of the applicants’ property. There were no unusual signs of superfluous growth or of any fruiting bodies. The other defects indicated in Mr Chapman’s letter were not obvious from the ground. There was only one failure noted and that appeared to be of a low branch on the reserve side of the tree and away from the applicants’ property. The nature of the remaining portion suggests that this was a storm-related failure.

18 Returning to s 10(2). The assertion is that tiles were broken by falling dead wood. Despite the lack of evidence of those cracked tiles, there is no reason to doubt the applicants’ statement that this occurred. Therefore as one of the tests under s 10(2) is satisfied, the jurisdiction is enlivened and the Court may make any order it thinks fit to remedy, restrain or prevent damage.

19 However, based on the recent removal of most of the overhanging part of the canopy, the likelihood of future damage appears to be remote as does the risk of injury to any person. The fact that a small percentage of the canopy remains over the applicants’ property in itself is no reason to order any intervention with the tree when the likelihood of that part failing is very low. Mr Chapman’s assertions about the failure potential of the cavity are unsubstantiated opinion.

20 As a result of the forgoing, the Orders of the Court are:

1. The application to remove the tree is dismissed.

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