McNally v Kalache - [2007] NSWLEC 692

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION: McNally v Kalache [2007] NSWLEC 692

PARTIES:
APPLICANT
Mr and Mrs McNally

RESPONDENT
Ms J. Kalache

FILE NUMBER(S): 20764 of 2007

CATCHWORDS: Trees (Neighbours) :- Removal and pruning of a Eucalyptus moluccana

LEGISLATION CITED:
Trees (Disputes Between Neighbours) Act 2006

CASES CITED:
Barker v Kyriakides [2007] NSWLEC 292

CORAM: Thyer AC

DATES OF HEARING: 15/10/2007

EX TEMPORE DATE: 15 October 2007

LEGAL REPRESENTATIVES

APPLICANT
Mr and Mrs McNally, litigant in person

RESPONDENT
Ms J. Kalache

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Thyer AC
15 October 2007
20764 of 2007 Mr and Mrs McNally v Ms J Kalache
JUDGMENT
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
The consequence of the Court’s decision in this application is the making of formal orders pursuant to s 9 of the Trees (Disputes Between Neighbours) Act 2006. These orders are not reproduced as part of this decision but a copy the Court’s Orders may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders are available on the Court’s web site at type="1">
COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 concerning one tree located on a property at 10 Kilmorey Street, Busby (the property). The property is owned by Ms Joanne Kalache.
The tree is a Grey Box (Eucalyptus moluccana).
The application has been made by Mr and Mrs McNally, owners of 8 Kilmorey Street, Busby, the adjoining property to the north of the tree.
The application seeks orders from the Court that the tree be removed.
The relevant provision of s 10(2)(a)&(b) of the Act require that the Court be satisfied that one or more of four conditions are met, with respect to each tree subject of an application, before the Court has jurisdiction to consider the application concerning 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?
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?
I have examined the Grey Box tree and have reached the following conclusions with respect to it:
It is a mature tree having height of approximately 15 m, canopy spread of approximately 15 m and diameter of approximately 0.7 m at 1.2 m above ground;
The tree appears to be in good condition with no decay or serious weakness observed in the trunk or major branches;
There are some small dead branches throughout the canopy of the tree;
A portion of the canopy overhangs the property of 8 Kilmorey Street, and some of that overhang is over the house roof and the pergola of 8 Kilmorey Street;
The tree is to the south of 8 Kilmorey Street and the canopy of the tree is well above the roof so the tree would cause little or no winter shading of 8 Kilmorey Street.
I have been advised by Mr and Mrs McNally that the tree has dropped a few live branches having diameter of up to 50 mm and length of 2 to 3 m in the last three years. I am also advised that the branches have only fallen in windy weather particularly southerlies and storms that last a few days.
The McNallys are also concerned about the amount of leaves, twigs and small branches that collect in the house gutters and have to be cleared from the backyard.
Mr and Mrs McNally have advised me that the tree was present when they moved to the house 42 years ago.
The tree is likely to be a remnant native tree of the area, and must be considered to contribute to the local ecosystem.
The tree also makes a considerable contribution to the landscape and the scenic amenity of the suburb. It is not the largest tree in the area but it is part of a general tree canopy throughout the suburb.
I am therefore satisfied that the tree makes a worthwhile contribution to public amenity.
In relation to fallen leaves, twigs and small branches, consistent with the Court's decision in Barker v Kyriakides, it is not appropriate to order the removal of the tree or significant interference with the tree on the basis of its dropping of leaves, twigs and the like on the applicant’s property.
As discussed in Barker v Kyriakides, for people who live in treed urban environments there is some necessary degree of assumption of housekeeping required both by the owner of the tree and those on adjacent properties in order to appreciate and retain the benefits of having such a treed urban environment.
It is expected therefore that the owner of the tree will carry out reasonable tree management, and the applicant will carry out reasonable home and yard maintenance.
I am satisfied that the occasional dropping in storm conditions of live branches with diameter of up to 50 mm does not presents a likely risk of injury to a person or of damage to the McNally’s property in the near future.
On the basis of the above information and recognising the public amenity provided by the tree, I do not find it appropriate to order the removal of the tree, nor any major intervention with the tree.
However, I find that the dead wood in the canopy of the tree presents a sufficient risk of damage to satisfy the third test in s 10(2)(a) of the Act. Therefore the tree should be managed to prevent this risk. I am therefore satisfied that the following intervention should be made to the tree:
1.The Grey Box tree shall be pruned to remove dead wood with a diameter larger than 40 mm from that part of the canopy that overhangs 8 Kilmorey Street.
2.That pruning shall be done by an experienced arborist (AQF Level 3 qualification or equivalent) and shall be carried out within 6 months of the date of the Orders of the Court and at intervals of not more than 5 years thereafter.
3.The owners of the tree shall pay the cost of the pruning work.
4.The arborist shall be given access to carry out the work on the applicant’s property. That access is to be on reasonable notice at a reasonable time, and the applicants are entitled to supervise that access.
The written determination of the Court, and orders setting out the above tree works will be sent to the parties.
___________________
P. Thyer
Acting Commissioner of the Court
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