Sahyoun v Jessop

[2009] NSWLEC 1313

Land and Environment Court

of New South Wales

CITATION:

Sahyoun v Jessop [2009] NSWLEC 1313

PARTIES:

APPLICANT
Allan Sahyoun

RESPONDENT
Terence Jessop

FILE NUMBER(S):

20557 of 2009

CORAM:

Fakes AC

KEY ISSUES:

TREES (NEIGHBOURS) :- removal of the tree, damage to property and injury to people

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

CASES CITED:

Yang v Scerri [2007] NSWLEC 592

DATES OF HEARING:

18 September 2009

EX TEMPORE JUDGMENT DATE:

18 September 2009

LEGAL REPRESENTATIVES:

APPLICANT
Allan Sahyoun (litigant in person)

RESPONDENT
Terence Jessop (litigant in person)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes AC

18 September 2009

20557 of 2009 Allan Sahyoun v Terence Jessop

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 Allan Sahyoun of 29 Norma Crescent Cheltenham against the owner of a tree growing at 27 Norma Crescent, That property belongs to Mr and Mrs Jessop. Mr Terence Jessop attended the on-site hearing.

2 The applicant is seeking the removal of the tree as he contends that it has caused and could cause both damage to his property and injury to people.

3 The respondent is opposed to the removal of the tree but would agree to some work being carried out.

4 The tree was inspected from both properties. Binoculars were used to view the upper canopy and branch attachments. It is a mature Eucalyptus pilularis (Blackbutt). The height and diameter of the tree suggest that it was an established tree before the construction of both residences in the 1096s. This is a locally occurring species and is likely to be a remnant of the original vegetation.

5 The tree is healthy with no obvious structural defects. There is an amount of deadwood throughout the canopy that is consistent with the age and species of tree.

6 Mr Sahyoun purchased his property in September 2007. According to his application, a live branch several metres long fell from the tree in relatively calm conditions. The branch landed on the clothesline located beneath the canopy.

7 On 31 May 2009, a live branch some fifteen metres long fell from the tree causing injury to, and subsequent hospitalisation of, two of Mr Sayhoun’s guests.

8 Mr Sayhoun provided photographs of both incidents.

9 The branch that fell onto the clothesline in December 2008 appeared, from the photographs, to be healthy. As there was no close up of the end of the branch, the cause of failure could not be ascertained. The stub most likely to be the point of failure of that branch showed no obvious defects. The branch appeared to be about 40 mm in diameter.

10 The large branch that fell in May 2009 appeared to have been an epicormic shoot that had developed to a substantial size. The photographs taken at the time of the incident show that the basal end of the branch had what appeared to be decayed and or discoloured tissue. The site of the failure showed that there was included bark. The failure pattern is consistent with the failure of an old epicormic shoot.

11 Mr Jessop stated that about eight years ago there was a nest of a species of arboreal termite at the base of the large branch that failed. As he was concerned that this may have been a species of termite that might cause damage to houses, he sought advice from a termite specialist from State Forests. The nest was removed at this time.

12 Mr Sayhoun is also concerned about ongoing damage to the tiles on his roof from falling branches. Photographs showed cracked tiles but no branches.

13 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.

14 The Court must also consider a number of matters under section 12 of the Act. The relevant clauses in this case are:

(a) The tree is wholly located on the respondent’s property.
(d) The tree is a locally indigenous species and will therefore contribute to the local ecosystem and to biodiversity. The properties are in close proximity to Lane Cove National Park.
(e) The tree contributes to the scenic value of the land on which it is situated.
(f) The tree contributes to public amenity and adds to the general landscape character of the area.
(h)&(i) The respondent has engaged an arborist in the past to prune the tree. The tiles on the applicant’s house are probably more than 40 years old.
(j) The applicant’s clothesline is located beneath the canopy of the tree. There is another section of the rear lawn that could accommodate a clothesline and be out of direct line with anything falling from the tree.

15 The photographs provide by the applicant clearly show that the tree has caused damage to his property and injury to persons.

16 The canopy of the tree was inspected for branch attachments similar to the major branch that failed in May 2009 and none were seen. All of the first order (major) branch attachments appeared sound. There was evidence of the failure of smaller branches throughout the canopy. Whether these were from live or dead branches is not clear however, at least one was from the December 2008 failure. No obviously weak attachments were seen.

17 As stated in 5, the tree does contain an amount of dead wood. Given the tree’s size and its proximity to targets, the falling of this dead wood could cause damage to property or injury to persons.

18 Therefore, as section 10(2) is enlivened, the Court has the jurisdiction to make an order.

19 The orders of the Court are:

1. The application to remove the tree is refused.

2. The respondent is to engage and pay for an AQF level 3 arborist with appropriate insurance to remove all dead wood down to 30 mm in diameter.
3. This work is to be carried out in accordance with AS4373 Pruning of Amenity Trees and the WorkCover 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. The applicant is to provide all reasonable access, should it be required, as long as 3 working days notice is provided.
6. The works specified in orders 2-5 inclusive are to be carried out on an annual basis commencing 12 months from the date of the 2009 pruning. The respondent is to organise and pay for this work.

___________________

J Fakes
Acting Commissioner of the Court