Mulheron v Adams
[2008] NSWLEC 1223
•22 May 2008
NEW SOUTH WALES LAND AND ENVIRONMENT COURT
CITATION:
Mulheron v Adams [2008] NSWLEC 1223
PARTIES:
APPLICANT
Dennis Mulheron
RESPONDENT
Frank Adams
FILE NUMBER(S):
20174 of 2008
CATCHWORDS:
Trees (Neighbours) :- Removal of tree, property damage, risk of injury.
LEGISLATION CITED:
Trees (Disputes Between Neighbours) Act 2006
CORAM:
Thyer AC
DATES OF HEARING:
22/05/2008
EX TEMPORE DATE:
22 May 2008
LEGAL REPRESENTATIVES
APPLICANT
Mr D. Mulheron, litigant in person
RESPONDENT
Ms E. Adams, agent
for Mr F. Adams, litigant in person
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESThyer AC
22 May 2008
20174 of 2008 Dennis Mulheron v Frank Adams
JUDGMENT
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
ACTING COMMISSIONER: There is a large Forest Red Gum in Mr Adams’ backyard. His sons recall having a tree house in it 50 years ago, and that it was a large tree then.
Mr Mulheron bought his home next to the tree about three years ago. He says the tree has not changed in that period. The tree has high branches that extend about 7 m over his property. He says that he expressed his concern to Mr Adams about two years ago that the tree was dangerous because of its size and location and asked that something be done about it. He did not point out any health or structural problems with the tree at that time or since. He sought mediation through the Community Justice Centre in January 2008 and was informed that Mr and Mrs Adams did not wish to mediate.
Mr Adams says that he and his wife were first told by Mr Mulheron in late 2007 that he had problems with the tree. They understood that Mr Mulheron wanted the tree cut down. They had the tree inspected by an arborist in March 2008, and the summary of the arborist’s report states that the tree has very little in the way of existing hazard.
Mr Adams wishes to retain the tree, and intends to do some pruning recommended by the arborist. Mr Adams was represented at the hearing by his two sons Geoffrey and Glenn Adams.
Mr Mulheron makes his application to prevent risk of injury and property damage. He seeks orders that the owner of the tree take responsibility for it and remove the threat to him and his house.
When assessing an application under the Trees (Disputes Between Neighbours) Act 2006 the Court must be satisfied that one or more of the four tests in s 10(2) (a) and (b) of the Act are met by each tree before making an order regarding 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?The tree and its location
The tree is located in the backyard of Mr Adams’ property at 50 Eastern Avenue Panania, about 2 m from the common boundary with Mr Mulheron’s property at 13 Narooma Close. Mr Mulheron’s house is 3 – 4 m on the western side of the tree.
The report of the arborist Mr Laverty describes the tree as a Forest Red Gum (Eucalyptus tereticornis) about 28 m tall with a canopy spread of about 14 m that is heavier on the eastern side away from Mr Mulheron’s property. The tree has twin trunks from about 1.4 m height. A major sub-trunk has been removed from the western side of the tree. There are no service lines near the tree and no excavation has occurred near the tree. There are no signs of disease or nutrient deficiencies in the foliage. The tree shows good quality trunk taper and basal flare.
Mr Laverty also identified features of the tree that may be a problem. Those features are:
A cavity at about 7 m height on the northern trunk. The cavity being about 650 mm long and 150 mm wide with a depth of about 220 mm but overall the general timber and heartwood is fairly sound;
About 6 m above the cavity there is one limb that grows to the south-west that has included bark;
There is a minor amount of deadwood throughout the canopy.
My observation of the tree confirmed Mr Laverty’s general assessment and gave me no reason to doubt his detailed findings and recommendations.
The issue
The issue in this case is:
Is the tree likely to cause damage to Mr Mulheron’s property or injury to any person?
Is the tree likely to cause damage to Mr Mulheron’s property or injury to any person ?
The tree has not dropped any branches in the time that Mr Mulheron has lived next door. Geoffrey and Glenn Adams say that the tree has no history of falling branches.
Mr Laverty’s report states that the tree has very little in the way of existing hazard. He recommends corrective pruning to lessen concerns for the adjoining property owner. I understand the conclusions of Mr Laverty’s report to be that pruning is specified in four categories to lessen those concerns as follows:
NeededThe removal of the heavily included limb at 13 m height;
RequiredMinor deadwooding and remedial pruning of crossed branches;
Precautionary Shortening of the two major limbs growing north-west at the top of the northern canopy;
OptionalReduction type pruning (shortening) of two lesser scale limbs growing due west, directly above Mr Mulheron’s dwelling.
The tree has not caused damage and is not now causing damage to Mr Mulheron’s property. Therefore the first two tests in s 10 (2) (a) of the Act are not met.
I understand Mr Laverty’s report to find that the tree is not likely to cause damage to Mr Mulheron’s property in the near future nor likely to cause injury to people, even if no pruning is done. My own observations discussed above confirm this view. On that basis I find that the third test in s 10 (2) (a) of the Act and the test in s 10 (2) (b) of the Act are not met.
As none of the tests in s 10 (2) (a) and (b) of the Act are met the tree does not come into the jurisdiction of the Court.
Agreement of the parties to specified pruning
I was advised at the hearing that Mr Adams intends to do at least the ‘needed’, ‘required’ and ‘precautionary’ pruning that was recommended in Mr Laverty’s report.
I note that the branches Mr Mulheron identified as of most concern to him are those specified as ‘optional’ pruning in Mr Laverty’s report, and may not be part of the pruning proposed by Mr Adams.
I further note that the parties reached the following agreements at the hearing:
1. Mr Adams will apply to Bankstown City Council to carry out all the pruning work recommended in par 3.1 and 3.2 of Mr Laverty’s report;
2. As far as consent is granted by Bankstown City Council, Mr Adams will have an arborist of his choice with AQF Level 3 qualifications and suitable insurances carry out all the pruning work recommended in par 3.1 and 3.2 of Mr Laverty’s report, by 31 August 2008;
3. Mr Adams will pay the whole cost of the works to the arborist, but will be reimbursed $500 as a contribution from Mr Mulheron if the ‘optional’ pruning, which is the shortening of the two branches he is most concerned about, is carried out;
4. Mr Mulheron will pay the $500 to Mr Adams within 30 days after being given a copy of the receipt for the completed works including the ‘optional’ pruning;
5. Mr Mulheron grants access for the work to be carried out over his property and for the loppings to be removed through his property, and he has the right to supervise that access;
6. The work will be done on reasonable notice to Mr Mulheron of at least one week, and at reasonable times being the times of consented residential building work in the Panania area of Bankstown City;
Conclusion
As the tree does not meet any of the tests in s 10 (2) (a) and (b) of the Act, I intend to dismiss the application.
Orders
The orders of the Court are that the application is dismissed.
___________________
Peter Thyer
Acting Commissioner of the Court
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