McHugh v Schmiedte

[2010] NSWLEC 1163

Land and Environment Court

of New South Wales

CITATION:

McHugh & anor v Schmiedte [2010] NSWLEC 1163

PARTIES:

APPLICANTS
Mr P McHugh
Ms F Clouston

RESPONDENTS
Mr W Schmiedte
Mrs V Schmiedte

FILE NUMBER(S):

20277 of 2010

CORAM:

Fakes C

KEY ISSUES:

TREES (NEIGHBOURS) :- Damage to property
Injury to persons
Pruning ordered

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

28/06/2010

 
DATE OF JUDGMENT: 

28 June 2010

EX TEMPORE JUDGMENT DATE:

28 June 2010

LEGAL REPRESENTATIVES:

APPLICANTS
P McHugh [litigant in person]
F Clouston [litigant in person]

RESPONDENTS
W & V Schmiedte [litigants in person]

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C

28 June 2010

20277 of 2010 McHugh & anor v Schmiedte

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 owners of a property in Ramsay Road Pennant Hills against the owners of 5 trees growing at the rear of a property in Maple Street Pennant Hills.

2 Ms Catriona Mackenzie a consulting arborist engaged by the respondents attended the on-site hearing.

3 The applicants are seeking the pruning of overhanging branches, the removal of dead wood and the annual inspection of the trees. Alternatively, they seek the removal of the trees. The respondents do not want the trees removed.

4 The applicants contend that live and dead branches have fallen from the trees over the 9 years they have resided in their property. Of most concern is a failure of a substantial live branch from one of the trees in March 2010. They contend that these fallen branches have caused damage to their property and could continue to do so. They are also concerned about the risk of injury posed by the trees.

5 The trees are 5 mature and healthy Eucalyptus saligna (Sydney Blue Gum) growing along the rear or north-western boundary of the respondents’ property. The trees were well established when the respondents purchased their property about 16 years ago.

6 Each of the trees subject to this application must be considered individually, and an assessment made in accordance with s 10(2) of the Act. This section states that the Court must not make an order unless it is satisfied that any of the trees 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. The trees are numbered from south-west to north-east.

7 Tree 1 is closest to the applicants’ dwelling. The tree has a bifurcated trunk with some included bark however the attachment appears sound. This observation agrees with a written report prepared for the respondents in March 2008 by Meredith Gibbs a consulting arborist and with Ms Mackenzie’s oral evidence given on site.

8 The tree appears to have had a history of pruning, especially crown lifting. The respondents confirmed that they have engaged an arborist to carry out works on the trees on a reasonably regular basis since 1998.

9 The applicants are concerned that parts of this tree overhang their property and will continue to grow. They stated that in March 2008 and March 2010, live branches fell from this tree. The remains of the 2010 failure were retained for the on-site hearing. Photographs tendered by the applicants show the fallen branch on a paved area adjacent to the former garage. The branch damaged a pergola and outdoor furniture. The point at which the branch broke remains on the tree. This failure is not inconsistent with the phenomenon known as “summer branch drop” or “sudden limb failure”.

10 The tree is healthy with no other obvious defects apart from the minor bark inclusion previously mentioned. There is a normal percentage of dead wood throughout the canopy. The respondents stated that the trees were dead-wooded some 3 years ago. Some dead wood was not removed as the tree contractor had concerns over the ability of his climbers to safely remove the dead wood in the upper parts of the canopy.

11 On viewing the tree and looking at the photographic and actual evidence, it is clear that a limb falling from this tree did cause damage to the applicants’ property. There is dead wood in the canopy of a size that could cause damage or injury to any person when it falls. Therefore as several of the tests under s 10(2) are satisfied, the jurisdiction is enlivened and the Court may make an order.

12 However, a number of matters must be considered under s 12 of the Act. The relevant clauses apply to all of the trees subject to this application.

(a) The trees are wholly located on the respondents’ property.
(d) The trees are a locally indigenous species and therefore they will contribute to the local ecosystem and to biodiversity.
(e) The trees contribute to the scenic value of the land on which they are situated and are valued by the respondents.
(f) The trees are easily seen from nearby streets, their canopies contribute to the landscape character of the area and thus they have value to public amenity.
(h&i)(ii) Steps taken by either party. The respondents have had the trees inspected and worked on over a 12-year period. When the applicants rebuilt their house in 2005 they moved it as far as permissible from the canopy of tree 1.

13 With respect to Tree 1, the applicants stated that in 9 years, apart from falling dead wood and small elements of live branches, two substantial live branches have failed onto their property. There are no signs that indicate that this is likely to reoccur. Whilst there are still some branches overhanging the applicants’ property, the removal of these as a precaution would not seem to me to be justified on the basis of 2 failures. However, the failure of dead wood is predictable and therefore an order will be made for the removal of dead wood from this tree.

14 Trees 2, 3 and 4 are healthy trees with no obvious structural defects and with a small percentage of dead wood. There have been no reported incidents of the failure of live branches from any of these trees. The canopies of these trees partly overhang the former carport and garage.

15 It is possible that a dead branch shown on the roof of the garage (photograph 6 in exhibit A) came from tree 3. As all of these trees contain some dead wood and for the reasons given for tree 1, the failure of dead wood is predictable and damage may occur. Therefore an order will be made for the removal of dead wood from these trees.

16 Tree 5 is at the north-western end of the respondents’ property. Very little of this tree overhangs the applicants’ property. There appear to be two wounds from live branch failures. One is reported to have failed into an adjoining property in Lockwood Close in 2002.

17 However, as for tree 1, there is no evidence to recommend the removal of overhanging branches over any adjoining property as a precaution against possible branch failure. As for the other trees, this tree does contain dead wood that could fail and cause injury to any person and for that reason an order will be made for the removal of dead wood from tree 5.

18 In conclusion and as a result of the forgoing, the Orders of the Court are:

1. The application to prune the trees is upheld in part.
2. The application to remove the trees is dismissed.
3. The respondents are to engage and pay for an AQF level 3 arborist to remove all dead wood > 30 mm in diameter from all 5 trees. Any stubs from past branch failures are to be removed.
4. All work is to be carried out in accordance with AS4373:2007 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry.
5. At the time of the removal of dead wood, the arborist is to undertake an aerial inspection of the trees. Should the arborist identify any additional pruning requirements, these are to be the subject of an application under the Hornsby Council Tree Preservation Order for those additional works to be carried out.
6. Should it be required, the applicants are to provide all reasonable access for the works to be undertaken in a safe and efficient manner.
7. The respondents are to give the applicants at least 2 working days notice of the commencement of the works.
8. The work is to be completed within 40 days of the date of these orders.
9. Orders 3-7 are to be carried out every two years within 14 days either side of the anniversary of the first dead-wooding.

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