Murray v Shoebridge

[2007] NSWLEC 785

Land and Environment Court

of New South Wales

CITATION:

Murray v Shoebridge [2007] NSWLEC 785

PARTIES:

APPLICANT
John Murray

RESPONDENT
Judith Shoebridge

FILE NUMBER(S):

20845 of 2007

CORAM:

Thyer AC

KEY ISSUES:

Trees (Neighbours) :- removal of a tree

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

CASES CITED:

Investments Pty Ltd v University of New South Wales [2007] NSWLEC 128

DATES OF HEARING:

13/11/2007

EX TEMPORE JUDGMENT DATE:

13 November 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr J. Murray, litigant in person

RESPONDENT
Mr P. Orchiston, solicitor
of Commercial Corporate & Property Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Thyer AC

13 November 2007

20845 of 2007 John Murray v Judith Shoebridge

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1 Acting Commissioner: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 concerning one tree (the tree) situated on 14 Gilbert Place, Frenchs Forest (the property). The property is owned by Mrs Judith Shoebridge.

2 The tree is a Sydney blue gum (Eucalyptus saligna).

3 The application has been made by Mr John Murray, owner of 13 Gilbert Place, which is located on the other side of a 3 m wide public walkway, to the north of the tree.

4 I am satisfied that for this application the properties are adjoining for the purposes of the Act, in accordance with the decision of the Court in P. Baer Investments Pty Ltd v University of New South Wales [2007] NSWLEC 128 where the properties were separated by a public road.

5 I observed that some part of the trunk of the tree at ground level appears to be growing on the public walkway. However, I am satisfied that the tree is situated on the respondent’s land for the purposes of the Act, as the tree is situated principally on the land, in accordance with s 4(3) of the Act.

6 The application seeks orders from the Court that the tree be removed or made safe.

7 The relevant provisions of s 10(2) 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.

8 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?

9 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?

10 I have examined the tree from ground level, and have been assisted in my assessment of the tree by the arborist’s report prepared by Mr Kokot for the applicant, and the Arborist’s report prepared by Mr Hill for the respondent, and by the attendance of Mr Hill at the hearing.

11 The tree is a mature Sydney blue gum of approximately 22 m height and 15 m spread, with co-dominant trunks of 0.7 and 0.8 m arising from 1 m above ground.

12 The tree is reported by Mrs Shoebridge to be approximately 50 years old, being planted by the previous owners as a seedling provided by Warringah Council.

13 The arborists’ reports agree that the tree has large diameter dead wood in the upper canopy. I am advised, and it seems likely that the large dead branches were killed by lightning strike.

14 The arborists’ reports also agree that there are co-dominant stems arising at 6 m height on the northern trunk. The reports differ on the likely risk posed by that branch junction. I am persuaded by Mr Hill’s report which is more detailed and more decisive in its assessment. Mr Hill’s report recommends that the live parts be retained in their entirety, and that the junction on the northern trunk be inspected more closely from within the tree.

15 I am advised by Mrs Shoebridge that the tree has not dropped live branches other than small live branches in storm conditions.

16 Mrs Shoebridge wishes to retain the tree and is willing to have the dead wood pruned out, to have the branch junction in question further inspected, and to carry out further work if recommended as a result of that inspection.

17 I am satisfied from the information provided and by my own observation that the tree is unlikely to cause damage in the near future, and is unlikely to cause injury.

18 I therefore find that the jurisdiction of the Court is not enlivened.

19 I note in passing my opinion that the tree also has positive qualities. It is attractive when viewed from the street, from the public walkway and from within Mrs Shoebridge’s property. It would provide shade to the public walkway in summer. It is a significant garden feature, and it would provide food and habitat for wildlife. I am therefore satisfied that the tree makes a worthwhile contribution to both public and private amenity.

20 During this hearing, the parties have come to an agreement regarding inspection and management of the tree, and who should pay for that work.

21 I note that having reached that agreement, Mr Murray no longer requires the Court to order an intervention with the tree.

22 I therefore dismiss this matter, noting the following agreement between the parties:

Pruning of Deadwood
• Deadwood having a diameter greater than 50 mm shall be pruned from the tree by 31 March 2008 at Mrs Shoebridge’s cost;

Inspection of the tree
• There shall be an aerial inspection of the tree to better inspect the possible areas of weakness, particularly the junction of co-dominant stems at 6 m height on the northern trunk, and a written report shall be prepared;
• Mrs Shoebridge shall pay the cost of this inspection and report by an arborist of her choice;
• Mr Murray shall have the opportunity to have an arborist of his choice inspect the tree at the same time and to prepare a report. This work shall be at Mr Murray’s cost.
• The arborists shall have qualifications of AQF Level 5;
• A copy of each report shall be provided to the other party within 14 days of the inspection;
• If there is evidence of significant decay or weakness, an application shall be made to Warringah Council for permission to remove the northern trunk. Any resulting tree pruning or removal would be at Mrs Shoebridge’s cost;
• If the arborists disagree to the extent that one says the tree is unsafe requiring removal of the northern trunk, and the other does not, then the parties shall have the Institute of Australian Consulting Arborists (IACA) appoint an independent consulting arborist to investigate and recommend on the matter. Any cost involved shall be paid equally by the parties. The parties shall be bound by the decision of the appointed independent consulting arborist.

___________________

Peter Thyer
Acting Commissioner of the Court