Reilly v Costello
[2017] NSWLEC 1599
•23 October 2017
Land and Environment Court
New South Wales
Medium Neutral Citation: Reilly v Costello [2017] NSWLEC 1599 Hearing dates: 23 October 2017 Date of orders: 23 October 2017 Decision date: 23 October 2017 Jurisdiction: Class 2 Before: Fakes AC Decision: Pruning ordered see [12]
Catchwords: TREES [NEIGHBOURS] :Damage to property; potential injury; palm fronds Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Hinde v Anderson & anor [2009] NSWLEC 1148
Yang v Scerri [2007] NSWLEC 592Texts Cited: Nil Category: Principal judgment Parties: Kate Reilly (Applicant)
Roxanne Costello (Respondent)Representation: Applicant: Ms K Reilly (Litigant in person)
Respondent: Ms R Costello (Litigant in person)
File Number(s): 2017/242496 Publication restriction: No
JUDGMENT
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
-
COMMISSIONER: The applicant has applied under s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of two Cocos Palms and Bamboo growing on the adjoining property in Rozelle.
-
The orders are sought on the applicant’s contentions that fronds and fruit falling from the palms could cause damage to her property or could cause her an injury, particularly as she has impaired vision. She is also concerned that a bamboo culm lodged in an awning and whilst it didn’t cause any damage, future failures may. The applicant submits that the bamboo (described as Giant Bamboo) will eventually block out all sunlight and block out sunlight to outside stairs as well as sunlight inside her house.
-
In applications under Part 2, the key jurisdictional test is found in s 10(2). This states:
(2) The Court must not make an order under this Part unless it is satisfied that the tree concerned:
(a) has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or
(b) is likely to cause injury to any person.
-
As the applicant is concerned about future damage, the guidance decision in Yang v Scerri [2007] NSWLEC 592 has determined that the 'near future' is a period of 12 months from the date of the hearing. In regards to injury, the Court considers the risk posed by a tree in the foreseeable future based on the characteristics of the tree/s, the history of any failures, any other relevant evidence, and the circumstances of the site apparent at the time of the hearing.
-
The palms, both Syagrus romanzoffiana (Queen Palm or Cocos Palm), are two of several palms and other trees growing in the respondent’s back garden. They are located very close to the common dividing fence; both have fronds that overhang a part of the applicant’s property that would be in frequent use. During the on-site hearing, at least one frond was observed to be touching the applicant’s roof and there were several dead fronds ready to fall.
-
The respondent does not wish to remove the palms but is content to have them regularly pruned of dead fronds and clusters of fruit. There is evidence of past pruning; it was thought the trees were last pruned about 18 months ago.
-
The majority of the bamboo (which is not Giant Bamboo) growing on the respondent’s property is separated from the common boundary by a large clump of Tecomaria capensis (Cape Honeysuckle). There are several culms (stems) relatively close to the boundary which have been pruned.
-
Photographs included in the application claim form show one culm resting on the applicant’s dwelling.
Findings
-
On the evidence before me, I am satisfied to the extent required by s 10(2) that fronds and fruit falling from the two Cocos Palms could in the near future cause damage to property on the applicant’s land or could cause injury. As such, the Court’s powers to make orders under s 9 of the Trees Act are engaged.
-
However, I am not satisfied that the Court’s jurisdiction is engaged for the bamboo. While one culm had rested on the applicant’s dwelling, it had not caused any damage and I saw nothing that would lead me to conclude that any stems are likely to cause damage within the next 12 months. In regards to the obstruction of sunlight to the external path or internally, this is not something for which there is any potential remedy under Part 2. If the applicant is concerned about obstruction of sunlight to windows of a dwelling, then an application under s 14B Part 2A of the Trees Act should be made, however, it would be prudent to note the relevant jurisdictional tests that apply to Part 2A.
-
As the respondent stated that she wishes the palms to remain, orders will be made for the biannual removal of fronds which are dead, declining, are touching, or likely in a six month period to touch, the applicant’s dwelling as well as any clumps of fruit or remains of the fruit-bearing stems that are likely to fall into the applicant’s property. If, between scheduled pruning events, fronds are dislodged in strong winds and pose a threat to the applicant’s property or could fall and cause injury, additional pruning is to be ordered. It was noted that should this become onerous, the respondent has the right to apply to the local council (should it be required) for permission to remove the palms. It was also discussed that it is possible for either party to file a Notice of Motion seeking to vary the orders. As discussed in Hinde v Anderson & anor [2009] NSWLEC 1148, a fresh application can be made if the circumstances have changed since the Court determined the earlier application and there is fresh evidence that could not be adduced at the initial hearing.
-
Therefore on the evidence before me and with the benefit of the site inspection, the Orders of the Court are:
Within 21 days of the date of these orders, the respondent is to engage and pay for an arborist with a minimum qualification in Arboriculture of AQF level 3 to remove all fronds that are dead, declining, are touching, or likely in a six month period to touch, the applicant’s dwelling as well as any clumps of fruit or remains of the fruit-bearing stems that are likely to fall into the applicant’s property from the two Cocos Palms close to the common dividing fence.
The works in (1) are to be carried out every six months until such time as the trees are removed.
In the event that fronds become dislodged and are at imminent risk of falling onto the applicant’s property in between scheduled pruning events, the respondent is to have the fronds removed as soon as reasonably possible.
Should it be required, the applicant is to provide all reasonable access on reasonable notice for the carrying out of the works in orders (1), (2) and (3).
______________________
Judy Fakes
Acting Commissioner of the Court
Decision last updated: 25 October 2017
0
2
1