Rizk v Department of Housing

[2007] NSWLEC 297

Land and Environment Court

of New South Wales

CITATION:

Rizk v Department of Housing [2007] NSWLEC 297

PARTIES:

APPLICANT
John Rizk

RESPONDENT
Department of Housing

FILE NUMBER(S):

20156 of 2007

CORAM:

Bly C

KEY ISSUES:

Trees (Neighbours) :- removal of a Sydney Blue Gum tree

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

20/04/2007

EX TEMPORE JUDGMENT DATE:

20 April 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr J. Rizk, litigant in person

RESPONDENT
Mr J. Eccleston, solicitor
Instructed by Mr K. Gider
of Department of Housing

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C
Fakes C

20 April 2007

20156 of 2007 John Rizk v Department of Housing

JUDGMENT

This decision was given extemporaneously. It has been revised and edited prior to publication.

1 COMMISSIONERS: This is an application pursuant to s7 of the Trees (Disputes Between Neighbours) Act 2006 (“the Act”) in relation to an application by Mr J Rizk of 17 Kingswood Avenue, Kingswood for the removal of a large Eucalyptus saligna (Sydney Blue Gum) ("the tree") in the adjoining property at 15 Kingswood Avenue. That adjoining property is owned by the Department of Housing. That Department appeared at the on-site hearing and advised that it had nothing to say in relation to the matter other than to assist the Court (as it did) in terms of the history of incidents associated with the tree.

2 We are satisfied that the parties have, pursuant to s 10 of the Act, made reasonable efforts to resolve this matter.

3 In dealing with the concerns of Mr Rizk, we have taken into account his evidence that on a number of occasions in recent years, dead branches from the tree have fallen onto the roof of his home, causing damage to roof tiles and allowing rain water penetration. We also heard from him and others, (as well as inspecting photographs) about a large limb that fell from this tree into the front yard of his property, causing some damage to a gas pipe.

4 The photographs of the large fallen limb revealed that it was vulnerable to failure, being most likely a branch resulting from epicormic growth following on from either inappropriate lopping or some other damage to the tree.

5 Having inspected the tree we are of the opinion that this is an attractive tree in the streetscape it is in good health and provides habitat. As a result of this inspection, we have concluded that it poses no present inherent risk to safety. We do agree, however, that being such a large tree in the vicinity of dwelling houses, it needs to be carefully and regularly inspected and managed. For example, during our inspection we discovered a branch which is probably of epicormic growth and whilst we do not see that it is presently dangerous, it could become so in time.

6 In support of our conclusion that the tree should not be removed, we have taken into account the fact that the damage caused by the tree to Mr Rizk's home was by dead branches of a moderate size. Hence, rather than removing the tree, the regular removal of dead wood that might cause such damage, is the preferable approach.

7 We therefore make the following orders:

1. Within sixty (60) days of these orders, there is to be carried out by the owners of 15 Kingswood Street, an aerial inspection of the Sydney Blue Gum tree in that property's front yard so as to check for structural defects that may lead to branch failure within the following twelve (12) months. During this inspection, which is to be repeated on an annual basis, all deadwood over 30 mm in diameter is to be removed according to AS4373/2007.
2. The inspection and work described in Order 1 is to be carried out by an AQF Level 3 arborist. Should any identified defect in the tree capable of causing damage to property, or injury to people be identified, then an AQF Level 5 arborist is to be engaged to carry out a risk assessment and make recommendations for the management of that risk.
3. The inspections, risk assessment and necessary work is to be at the cost of the tree owner.

___________________

T A Bly
Commissioner of the Court

____________________
J Fakes
Acting Commissioner of the Court
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