Micallef v Diep
[2019] NSWLEC 1475
•05 September 2019
Land and Environment Court
New South Wales
Medium Neutral Citation: Micallef v Diep [2019] NSWLEC 1475 Hearing dates: 5 September 2019 Date of orders: 05 September 2019 Decision date: 05 September 2019 Jurisdiction: Class 2 Before: Douglas AC Decision: The application is dismissed.
Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – apprehension of damage to property, and injury Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: Jeffrey Micallef (First Applicant)
Denise Micallef (Second Applicant)
Danny Hao Luong Diep (First Respondent)
Boi Binh Diep (Second Respondent)Representation: J Micallef, litigant in person (First Applicant)
D Micallef, litigant in person (Second Applicant)
D Diep, litigant in person (First Respondent)
B Diep, litigant in person (Second Respondent)
File Number(s): 2019/182293 Publication restriction: No
Judgment
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
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COMMISSIONER: This is an application, pursuant to s 7 of Part 2 of the Trees (Disputes between Neighbours) Act 2006 (the Act) by Mr and Mrs Micallef of Carlingford relating to a Cupressus macrocarpa (Cypress) (the tree) located in the rear yard of the adjacent neighbouring property.
Background
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The western side of Mr and Mrs Micallef’s rear yard meets the rear of the respondents’ property at the common boundary, and the tree is growing close to the boundary. The applicants reported and provided photographic evidence of one fairly large ascending branch which broke from the tree into their yard around 9 months ago, and noted that other smaller lateral branches had also fallen into their property.
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Parramatta City Council (Council) supplied the Court with copies of records relating to the tree, in correspondence dated 1 July 2019. These detail Council’s prompt response to a request by Mrs Micallef to assess whether the tree was dangerous. The report from the Tree Management Officer (TMO) notes inspection of the tree on 1 May 2019 from the street frontage, that the tree contains a healthy crown, and that it had been extensively pruned in the past. The TMO requested that a letter outlining options for civil dispute resolution be provided to Mrs Micallef, and that the file be subsequently closed.
The applicants’ case
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The applicants believe the tree is dangerous with respect to both damage to property, and risk of injury.
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In their application, they propose orders for:
Pruning of dangerous tree;
Avoiding damage to property due to falling branches; and
Prevention of injury to persons due to falling branches.
The respondent’s case
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The respondents, Mr and Mrs Diep, appreciate the tree’s contribution to their landscape amenity, and the environmental services the tree provides. They are not opposed to pruning the tree, should it be confirmed as a likely risk to persons and or property, but do not accept that this has been established, and thus resist intervention in the interim.
The on-site hearing
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The hearing, with both parties present, commenced in the respondents’ rear yard with an inspection of the tree, and discussion about past branch breakages.
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The tree is about 11 metres tall and about 650mm diameter at breast height (DBH), it is located near the middle of the common fence-line, about 11 metres from the rear of the Micallef’s house. It exhibits a form typical of this species, being dominant vertical trunks supporting relatively small lateral secondary branches. Based on the foliage appearance and density, the tree looks healthy.
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The Cypress is located adjacent to a similar size Jacaranda tree in the applicants’ property, also growing close to the common boundary but nearer to their house. Part of the cypress canopy is intermingling and appears to be cradled into the canopy of this Jacaranda.
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To the NNW is another mature Jacaranda in the respondents’ property, and to the SW is a tall, broad Liquidambar tree in a third neighbour’s rear yard. Both these trees would provide wind protection to the Cypress.
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The Cypress displays various old wounds where mainly vertical stems have broken. Based on the location and characteristics of the residual torn stems, it appears that most of these branches would have shed towards the respondents’ property, and this was confirmed at the site inspection. Mr Micallef indicated the branch tear from the large branch that had damaged the boundary fence Mr and Mrs Diep share with their south side neighbour, and wounds on the trunk indicating other branches that had fallen into his yard.
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In his application, he submitted that this history of branch breakage renders the tree dangerous for him to mow or garden nearby, and that children cannot play in the backyard due to the risk of branches falling.
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There is, however, no evidence to suggest that these branches, or any other part of the tree, have caused, or are causing damage to the applicants’ property, and Mr Micallef confirmed this orally.
Jurisdictional requirements
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With respect to s 7, an owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land.
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The Micallef’s have satisfied s 8(1) of the Act, to give Mr and Mrs Diep at least 21 days’ notice of the lodging of the application and the terms of any orders sought.
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Next, the Court is obliged to consider a number of matters pursuant to s 10 of the Act.
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As required by s 10(1), I am satisfied that the applicants have made a reasonable effort to reach agreement with the owners of the land on which the tree is situated. Mr Micallef noted discussions held with Mr Diep about his concerns, and the applicants provided evidence showing unsuccessful attempts to organise mediation through Community Justice Centres.
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With respect to his rejection of mediation, Mr Diep contended that the requirement to gain Council permission for removing or pruning the tree, and the current absence of it, resulted in sufficient uncertainty to compromise the mediation process, and any resulting agreement.
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The next major test that is posed, by s 10(2) of the Act, is that the Court must be 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.
Property damage
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No evidence was submitted to show that the tree has caused, or is causing damage to the applicant’s property, and Mr Micallef confirmed this.
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As to damage in the near future, guidance is drawn from a decision published in Yang v Scerri [2007] NSWLEC 592 (Yang), where, as a rule of thumb, the ‘near future’ is deemed to be a period of 12 months from the date of the determination.
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The tree shows signs of having been heavily lopped perhaps 10-15 years ago about 2.5 metres above ground level. It is likely that relatively weakly attached regrowth resulting from this poor pruning practice has been the primary reason that the tree has exhibited a higher than normal propensity for branch tearing and shedding.
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It does appear however that the majority of vertical trunks and smaller stems negatively affected by this pruning have already broken away, or have been pruned. Many short residual broken dead lopped trunks remain near the middle of the tree, but they are not a hazard.
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Based on their external appearance, the remaining larger vertical trunks look sound and strong. They show no obvious signs of cracks or faults nor do junctions and attachments between branches appear anything other than sound.
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Even considering a worst case scenario, one trunk is slightly leaning towards the respondents’ lawn and one slightly towards the back of the applicants’ yard. Failure of either branch would be very unlikely to cause damage, other than perhaps bending a fence. A third trunk which leans into the applicants’ Jacaranda, if by chance it did break, would almost certainly be caught and cradled by the Jacaranda and thus also not cause damage. A small lateral stem is also growing into the applicants’ Jacaranda, but it is unlikely to break nor to cause damage.
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From the evidence adduced, I am therefore not satisfied that the tree is likely, in the near future, to cause damage to the applicants’ property
Risk of Injury
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Mr and Mrs Micallef’s request for heavy pruning is also based on the perceived risk of injury from branches falling, endangering Mr Micallef when mowing or gardening nearby, and preventing grandchildren playing on the adjacent lawn.
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Using the guidance decision published in Yang with respect to injury, the Court considers the risk posed by a tree based on the characteristics of the tree/s, any history of previous failures and the circumstances of the site apparent at the time of the hearing.
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No tree risk assessment or other evidence was provided to support this claim of risk of injury, other than the applicant’s fear and apprehension arising from the sound of the tree creaking in the wind.
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Analysing the situation through the prism of Yang, though the tree exhibits a history of branch failures, the residual structure appears sound, and there are no obvious characteristics of this tree that cause particular concern. The site is protected from wind exposure by surrounding trees, and as previously described, the Micallef’s mature Jacaranda, provides protection on the tree’s northern side, such that no branches are likely to fall towards the applicants dwelling. Mr and Mrs Micallef highlight the tree’s disconcerting creaking in the wind, but occupation of outdoor areas is normally low during windy periods.
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Therefore, notwithstanding the history of breakage or the reported creaking, consistent with my prior explanation with respect to damage in the near future, I am also not satisfied that the tree poses a likely risk of injury. Any risk would be no greater than low, which is considered an acceptable risk. This issue is therefore resolved.
Conclusion
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I have examined the mature Cupressus macrocarpa tree and have reached the following conclusions with respect to it:
I am not satisfied that the tree concerned has caused, is causing or is likely, in the near future, to cause damage to the applicant’s property.
The level of risk from branch drop from the tree onto the applicants’ property is considered low and acceptable.
No evidence has been provided which justifies intervention with the tree.
Though I therefore have no jurisdiction to make orders, I advised Mr Diep that pruning of the residual dead broken trunks from the centre of the tree is likely to reduce the creaking noises.
Orders
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Accordingly, the application is dismissed.
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J Douglas
Acting Commissioner of the Court
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Decision last updated: 02 October 2019
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