Parison v Kelly

[2010] NSWLEC 1300

Land and Environment Court

of New South Wales

CITATION:

Parison v Kelly [2010] NSWLEC 1300

PARTIES:

APPLICANT
Mr L Parison

RESPONDENTS
Mrs S and Mr C Kelly

FILE NUMBER(S):

20608 of 2010

CORAM:

Galwey AC - Fakes C

KEY ISSUES:

TREES (NEIGHBOURS) :- Damage to property, injury to persons, removal of dead wood ordered

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

CASES CITED:

Barker v Kyriakides [2007] NSWLEC 292
Yang v Scerri [2007] NSWLEC 592

DATES OF HEARING:

29/10/10

 
DATE OF JUDGMENT: 

29 October 2010

EX TEMPORE JUDGMENT DATE:

29 October 2010

LEGAL REPRESENTATIVES:

APPLICANT
Ms G Parison [agent]

RESPONDENT
Mrs S Kelly [litigant in person]

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Galwey AC
Fakes C

29 October 2010

20608 of 2010 Parison v Kelly

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

: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Annandale against the owners of a tree growing on an adjoining property.

2 The applicant, who was represented at the hearing by his daughter, seeks removal of branches overhanging his property. He contends that branches and debris are likely to damage the roof of a dwelling, and that falling branches may cause injury. He also contends that previous pruning has ‘unbalanced’ the tree and that this may cause it to fall onto his property.

3 The tree is a mature Eucalyptus saligna (Sydney Blue Gum) located entirely in the rear garden of the respondents’ property. It is a healthy tree with no obvious structural defects and no signs of instability.

4 We noted some dead branches throughout the canopy, but no more than is typical for a healthy specimen of this species.

5 The respondent present at the hearing stated that some deadwood was removed from the tree a few years ago.

6 Viewing the tree from both properties we observed some fallen dead branches up to five or six centimetres in diameter, and small parts of live branches (foliage and twigs) that have fallen onto the ground and onto the roof.

7 Access to the roof was not provided but the applicant stated that, while there were some minor dents of no great concern, the branches, leaves and twigs from the tree may cause corrosion to the roof. No evidence of existing damage to the roof was provided.

8 The dwelling, which is under construction, is part of a multi-dwelling development on the applicant’s property. The applicant was aware of the presence of the tree at the time of the Development Application.

9 The applicant expressed concern regarding the amount of debris from the tree that has fallen onto the roof and into the courtyard, and the degree of maintenance required to clean this up.

10 Under s 10(2) of the Act, the Court must not make an order unless it is 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.

11 According to the applicant, the tree has not caused any damage to property (apart from the small dents on the roof that did not concern him). His concerns relate to the risk of future damage.

12 In a guidance principle published in Yang v Scerri [2007] NSWLEC 592, the Court has determined, as a rule of thumb, that ‘the near future’ is generally a period of 12 months from the date of the judgment.

13 In our opinion there is no evidence that damage from branches, leaves and twigs is likely in the next 12 months.

14 Furthermore, based on our observations, we see no evidence that the entire tree is likely to fail within the next 12 months.

15 In terms of the leaf litter and twigs on the roof, we do not consider that this has caused damage. However, if we are wrong on this we consider that the principle published in Barker v Kyriakides [2007] NSWLEC 292 should apply here. In this principle it is considered that ‘For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis’. It also states that ‘The dropping of leaves, flowers, fruits, seeds or small elements of dead wood, by urban trees, will not ordinarily provide the basis for ordering removal of or intervention with a tree’.

16 However, on the evidence before us, we are satisfied that deadwood falling from the tree could cause injury. Therefore, as one of the tests under s 10(2) is satisfied, the Court can make orders regarding the tree.

17 Section 9 empowers the Court to make any such orders as it thinks fit to remedy, restrain or prevent damage or injury that may arise from the tree subject to the application. These orders do not necessarily have to concur with those sought by the applicant.

18 In deciding any such orders, the Court must consider a number of issues under s 12 of the Act. In this case the relevant clauses are:

(a) The tree is wholly located on the respondents’ property.
(b2) Removal of deadwood from the crown would not adversely affect the tree. However, the extent of pruning requested by the applicant, specifically the size and number of branches proposed for removal, would be detrimental to the health and structure of the tree.
(d) The tree is a native species and makes a contribution to the local ecosystem and to biodiversity.
(e) The tree contributes to the scenic value of the land on which it is situated.
(f) Considering the tree’s size, it can be seen from surrounding streets and so has intrinsic value to public amenity.
(h)&(i) We are to consider any steps taken by the parties to address the issues.
The respondents had the tree pruned to remove deadwood a few years ago.
The applicant has not undertaken pruning works that he could carry out without needing a permit under the local Tree Preservation Order. We note that the applicant was aware of these provisions but has not undertaken pruning because he wishes to remove larger branches, and a greater portion of the crown, than would be exempt from permit requirements.

19 Considering the foregoing, we believe that the presence of deadwood in the tree’s crown poses a risk of injury to people, but that no orders beyond the removal of deadwood are required. As a result, the Orders of the Court are:

1. The application is upheld in part.
2. The respondents are to engage and pay for an AQF level 3 arborist to remove all deadwood > 30 mm in diameter from the tree.
3. This work is to be carried out in accordance with AS4373:2007 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry.
4. The work is to be completed within 30 days of the date of these orders.
5. If required, the applicant is to provide all reasonable access for the works to be completed in a safe and efficient manner.
6. The respondents are to give the applicant at least 2 working days notice of the commencement of the works.

D Galwey

Acting Commissioner of the Court

J Fakes

Commissioner of the Court