Phan v Wear

[2008] NSWLEC 1450

Land and Environment Court

of New South Wales

CITATION:

Phan v Wear [2008] NSWLEC 1450

PARTIES:

APPLICANT
Roland Phan

RESPONDENT
Cheryl Wear

FILE NUMBER(S):

20711 of 2008

CORAM:

Fakes AC

KEY ISSUES:

Trees (Neighbours) :- Removal or pruning of trees, risk of injury to persons and damage to property

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

CASES CITED:

Yang v Scerri [2007] NSWLEC 592
Black v Johnson (No 2) [2007] NSWLEC 513
Barker v Kyriakides [2007] NSWLEC 292

DATES OF HEARING:

31/10/2008

EX TEMPORE JUDGMENT DATE:

31 October 2008

LEGAL REPRESENTATIVES:

APPLICANT
Roland Phan, Litigant in Person

RESPONDENT
Cheryl Wear, Litigant in Person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes AC

31 October 2008

20711 of 2008 Roland Phan v Cheryl Wear

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 made by Mr Roland Phan of 3/50 Centaur Street Revesby against Ms Cheryl Wear the owner of several trees located at 51 Hydrae Street Revesby.

2 The applicant is concerned about three trees at the rear of the respondent’s property that are close to his rear boundary fence with the respondent. The trees are all Jacarandas, two of which are dead.

3 The applicant is seeking the removal or the pruning of the trees as he contends that they pose a risk of injury to persons and could cause damage to his property.

4 The respondent was unable to attend the on site hearing and had accordingly notified the Court. As a result of this, the trees were only viewed from the applicant’s property. The viewing required the use of a ladder.

5 The first of the three trees (tree 1) is approximately 1.5 m from the boundary fence about halfway along the fence line. It is a tree in average to poor condition. It consists of a trunk that bifurcates at about 2 m from the ground. There is a small secondary leader arising from the base of the main trunk. This small leader is growing towards the applicant’s property. The applicant lopped this leader to a position inside the respondent’s property about 18 months ago and an epicormic shoot has grown from the lopped end. The most eastern of the two major stems was also lopped by the applicant. This section appears to be dead. The applicant could not recall if this section was dead or alive when he lopped it. The lopping was carried out in order to remove overhanging branches. The remaining section of this tree is alive and about 5% of the canopy overhangs the applicant’s property.

6 At the time of inspection the tree was coming into flower and the extent of deadwood was difficult to determine although the majority of the growth appeared to be alive and any deadwood would be of relatively small diameter.

7 The second tree is approximately 1 m to the north west of tree 1. It is dead and appears to have been so for some time. An upper branch of this tree just overhangs the applicant’s property and the boundary fence. It is possible that this section could fail in the near future as there appears to be a cavity at its base. Should the remainder of this tree fail it is most likely to collapse into the respondent’s property. As this section of the respondent’s garden appears to be rarely used, the risk of injury to anyone is remote.

8 The third Jacaranda is also dead and is approximately 5 m from the boundary fence. This is a relatively small tree, and should it fail it is unlikely that is would cause any significant damage to the applicant’s property.

9 Under section 10(2) of the Act, the Court must not make an order unless it is satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property or injury to persons. In Yang v Scerri [2007] NSWLEC 592, a rule of thumb, which I consider is also appropriate here, puts the near future as being a period of 12 months from the date of the determination.

10 The Court must also consider a number of matters under s 12. The relevant clauses in this case are as follows:

(a) The trees are wholly located on the respondent’s property.
(e) The trees make a minor contribution to the respondent’s property.
(h)&(i) The applicant has lopped overhanging branches of tree 1 about 18 months ago. This action can cause instable growth or death of branches and should be taken into consideration if future damage to property arises from these lopped branches. The respondent stated in her response to the application that no work has ever been carried out on these trees.
(j) Other matters: The respondent stated in her submission that the trees have been there for over 30 years as they were there when she moved in 30 years ago. The applicant purchased his property 3 years ago and thus the trees would have been approximately the same size and clearly visible.

11 In Black v Johnson (No 2) [2007] NSWLEC 513, the existence of a tree prior to the building of a structure that may be damaged by the tree is not a matter likely to be taken into consideration on the question of whether or not some order should be made for some interference with the tree. However, it is to be taken into account when determining the apportioning of costs.

12 Although it was not raised by the applicant at the on-site hearing, his application raises the issue of the falling of debris onto his roof and gutters. In Barker v Kyriakides [2007] NSWLEC 292 and subsequent tree dispute principle, the dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees will not ordinarily provide the basis for ordering the removal of or intervention with an urban tree. This applies in this case. It is expected that some level of external housekeeping and maintenance is normal for people who live in leafy urban environments and who benefit from the environmental and aesthetic services that trees provide.

13 After viewing the evidence it is clear that no damage has occurred to the applicant’s property not has there been any injury to persons. There is one section of tree 2 that could, in the near future, cause some damage to property. The likelihood of injury to any persons is remote. Therefore as one element of s 10(2) is achieved, the jurisdiction of the Court is enabled.

14 The Orders of the Court are:

1. The application is upheld in part.

2. The trees do not need to be removed to avoid damage to the applicant’s property or to prevent injury to persons.
3. The section of tree 2 that is most likely to fail is to be removed to the point indicated on the marked up photograph attached to this judgement.
4. This work is to be carried out by an AQF level III arborist with appropriate insurances and in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.
5. This element of the work is to be wholly paid for by the respondent.
6. Deadwood down to 30 mm in diameter is to be removed from the canopy of tree 1 that overhangs the applicant’s property. This cost of this element of the work is to be paid for on a 50:50 basis by the applicant and the respondent.
7. The respondent is to organise the works and they are to be carried out within 60 days of the dates of these orders.
8. All quotes and the final tax invoice are to show the two elements of the works separately itemised and costed. The applicant is to reimburse the respondent for his share of the costs within 21 days of the presentation of a tax invoice for the completed works.
9. Should the arborist require access to the applicant’s property, at least 3 working days notice are to be given to the applicant by the arborist/ respondent and the applicant is to provide that access.

___________________

J Fakes
Acting Commissioner of the Court

The red line shows the position of the final cut on the section of tree 2 that needs to be removed (indicated by the red arrow). This is viewed from the applicant’s property.