Mehta v Pursell

[2019] NSWLEC 1649

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Mehta v Pursell [2019] NSWLEC 1649
Hearing dates:	6 December 2019; 16 December 2019
Date of orders:	16 December 2019
Decision date:	16 December 2019
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders: (1)   Within 90 days of the date of these orders, the respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances to remove all three stems of T1 (T1–T3 in the application) and T4 to no more than 50 cm above ground level. (2)   The works ordered above must be carried out in accordance with the 2016 Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’. (3)   The respondent is to give the applicant 2 days’ notice of the works ordered above. (4)   The applicant is to allow any access required to complete the works ordered above during reasonable hours of the day.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – whether the application was served correctly – PART 2 application – risk of damage or injury in the near future – orders for tree removal – PART 2A application – obstruction of sunlight – whether the trees are planted so as to from a hedge
Legislation Cited:	Trees (Disputes Between Neighbours Act) 2006 (NSW)
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Yang v Scerri [2007] NSWLEC 592
Texts Cited:	2016 Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’
Category:	Principal judgment
Parties:	Sugam Mehta (Applicant) Peter Gordon Grenville Pursell (Respondent)
Representation:	Counsel: S Mehta (Litigant in person) (Applicant) P Falzon (Solicitor) (Respondent)   Solicitors Falzon Legal (Respondent)
File Number(s):	2019/229447
Publication restriction:	No

Judgment

The application

1. Sugam Mehta (‘the applicant’) applied to the Court pursuant to both s 7 (Part 2) and s 14B (Part 2A) of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’) seeking orders relating to several trees on the neighbouring property belonging to Peter Pursell (‘the respondent’). Mr Mehta wants six trees on Mr Pursell’s property removed because they pose a risk to his property and family (Part 2 application) and because they obstruct sunlight to his dwelling (Part 2A application).

The hearings

2. Mr Pursell did not attend the onsite hearing on 6 December 2019. Some days before the hearing he contacted the Court, wanting the hearing vacated because he had not been served the application properly. Mr Mehta had already filed an affidavit of service, so the hearing proceeded. Had Mr Pursell attended the hearing, he might have made submissions regarding proper service of the documents.

3. After the onsite hearing, Mr Pursell was given a further opportunity to make submissions. A further hearing occurred on 16 December 2019 via teleconference, with Mr Falzon representing Mr Pursell, and Mr Mehta again self-represented.

The trees

4. The onsite hearing allowed observations of the trees and surroundings.

5. Mr Mehta’s application shows six trees. His trees T1–T3 are actually one tree with three stems. It is referred to as T1 here. As a result, there are four trees in total. They are:

• T1 – a Cypress approximately 10 metres tall, multi-stemmed, three stems remaining after other stems have already failed

• T4 – a Wattle approximately 12 metres tall, in poor condition, with large dead branches

• T5 – a Cypress approximately 10 metres tall, multi-stemmed, in fair condition

• T6 – a Jacaranda approximately 10 metres tall, in fair condition.

6. The four trees grow in Mr Pursell’s garden, close to the common boundary.

Part 2 application and findings

7. Mr Mehta submitted that these six trees are likely to shed branches into his property and cause damage or injury. He said a stem of T1 leans across the boundary, and the lean has increased. He thinks the stem has cracked. He said that dead branches fall from T4 into his property. Leaves and twigs fall from all the trees into his property.

8. The Cypress T1 has three remaining stems with poor basal structure. Looking over the fence (I did not have access to Mr Pursell’s property) I observed that two other stems have already failed, but they were on the north side of the tree and fell into Mr Pursell’s garden. Two of the remaining stems, and especially the one leaning significantly over the common boundary, would fall into Mr Mehta’s property. Due to the poor structure at the base of the tree, where the stems join with narrow forks and there is little support on their tension sides, failure of these stems is likely in the near future, a period I regard as approximately 12 months from now, as per the principle in Yang v Scerri [2007] NSWLEC 592. Stem failure would most likely cause damage to the boundary fence, and possibly to part of Mr Mehta’s dwelling. The Court’s jurisdiction is enlivened with regard to this tree. Pruning cannot sufficiently reduce the probability of stem failure, so the tree should be removed.

9. The Wattle T4’s condition is declining. Large deadwood is now present in the crown. Smaller dead branches have fallen into Mr Mehta’s garden. Large limbs are likely to fail in the near future, and are likely to damage the fence or cause injury. Considering the tree’s declining condition, pruning is not appropriate. The tree should be removed.

10. Trees T5 and T6 are both in fair condition without any major structural defects evident during my inspection. I find they are unlikely to cause damage to Mr Mehta’s property in the near future, or injury to any person. Although these trees might contribute to the smaller debris that Mr Mehta finds in his garden, this is unlikely to cause damage or injury. The Court’s jurisdiction is not enlivened for trees T5 and T6. Furthermore, any risk of damage or injury that might eventuate could be avoided through routine maintenance. The principle established in Barker v Kyriakides [2007] NSWLEC 292 regarding routine property maintenance applies equally here.

11. Mr Falzon explained that Mr Pursell has limited financial resources and submitted that, if I make orders for tree removal, he would prefer a six-month timeframe to carry out those orders. Tree failure does not appear imminent, so a longer timeframe than the usual 30 days is acceptable, but I find that six months is too long as further branch failures are likely within that period. Mr Mehta submitted that he would find three months acceptable, so that will be the timeframe for tree removal.

Part 2A application and findings

12. The four trees described above do not appear as a hedge. There are planted at irregular intervals. There are gaps between some of their crowns. They are three different species of different growth habits. There is nothing to suggest that they were planted to form a hedge. The jurisdiction under Part 2A is limited by s 14A(1)(a) (with my emphasis in bold):

14A Application of Part

(1) This Part applies only to groups of 2 or more trees that:

(a) are planted (whether in the ground or otherwise) so as to form a hedge, and

(b) rise to a height of at least 2.5 metres (above existing ground level).

13. I find that the six trees are not planted so as to form a hedge, so Part 2A does not apply to them and I cannot make orders under this Part.

14. Nevertheless, Mr Mehta might find some relief from any sunlight obstruction, as the orders made above for his Part 2 application will remove the most significant shading to his property.

Orders

15. As a result of the foregoing, the Court orders:

1. Within 90 days of the date of these orders, the respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances to remove all three stems of T1 (T1–T3 in the application) and T4 to no more than 50 cm above ground level.

2. The works ordered above must be carried out in accordance with the 2016 Safe Work Australia Guide to managing risks of tree trimming and removal work.

3. The respondent is to give the applicant 2 days’ notice of the works ordered above.

4. The applicant is to allow any access required to complete the works ordered above during reasonable hours of the day.

……………………………….

D Galwey

Acting Commissioner of the Court

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Amendments

09 January 2020 - Pursuant to UCPR r 36.17, by the Court’s own motion, amend the Court’s orders made on 16 December 2019 by replacing all original references to “the applicant” with “the respondent” and vice versa in Orders (1), (3) and (4).

Decision last updated: 09 January 2020