Sayigh v Rallis

[2024] NSWLEC 1666

Land and Environment Court

New South Wales

Medium Neutral Citation:

Sayigh v Rallis [2024] NSWLEC 1666

Hearing dates:

15 October 2024

Date of orders:

15 October 2024

Decision date:

15 October 2024

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1)   The application is granted to the extent of the following orders.

(2)   The respondents shall remove the tree the subject of these proceedings within 28 days of the making of these orders in accordance with the tree removal permit number TA2024/0293 from Georges River Council dated 25 July 2024.

(3)   The tree removal works in Order (2) are to be done by a suitably qualified and experienced arborist (minimum AQF level 3), with all appropriate insurances, and are to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.

(4)   The respondents are to give the applicant one week’s notice of the works in Order (2) if the date currently agreed for the works changes.

(5)   The applicant is to allow reasonable access for the works during reasonable hours of the day.

(6)   The respondents shall pay the applicant an amount of $850.00 on account of the damage caused by the tree within 7 days of the date of these orders.

(7)   Within 90 days of the date of these orders the respondents are to plant on their property two canopy trees.

(8)   Liberty to relist should the weather prevent the respondents completing works in the timeframes above.

(9)   The exhibits are returned, other than Exhibits A, B and C.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – neighbouring tree has caused damage – consent orders – compensation – tree removal

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, ss 7, 9, 10, 12

Cases Cited:

Breen v Caronna [2008] NSWLEC 293

Yang v Scerri [2007] NSWLEC 592

Texts Cited:

Safe Work Australia, Guide to managing risks of tree trimming and removal work (2016)

Category:

Principal judgment

Parties:

Elias Sayigh (Applicant)
Christina Rallis (First Respondent)
Sam Ross Perre (Second Respondent)

Representation:

E Sayigh (Self-represented) (Applicant)
M Abrahamian (Solicitor) (Respondents)

Solicitors:
Law Corporation Pty Ltd (Respondents)

File Number(s):

2024/295339

Publication restriction:

Nil

Judgment

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

Background

1. COMMISSIONER: This neighbourhood dispute involves a large gum tree near the rear boundary of the Lugarno property belonging to Christina Rallis and Sam Perre (the respondents). The tree overhangs the adjoining property belonging to Elias Sayigh (the applicant). On 10 December 2023 a large branch fell from the tree, damaging a trampoline in Mr Sayigh’s backyard.

2. The respondents’ live abroad; their property is rented to tenants and managed by a property agent. My Sayigh attempted, unsuccessfully at first, to contact the respondents. Eventually, the respondents agreed to remove the tree and obtained consent for its removal from Georges River Council (Council). Weather and other obstacles delayed the tree being removed as planned. Frustrated by the ongoing delays, Mr Sayigh applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) seeking orders for the tree’s removal, compensation for property damage, and costs of the application.

3. Prior to the hearing, the parties agreed to the following consent orders, which they filed with the Court:

1. The First and Second Respondents (Respondents) shall remove the tree the subject of these proceedings (Tree) within 28 days of the making of these Orders in accordance with the tree removal permit number TA2024/0293 from Georges River Council dated 25 July 2024, a copy of which is attached and marked "A" to these Orders.

2. The Respondents shall pay the Applicant an amount of $850.00 on account of the damage caused by the Tree within 7 days of the making of these Orders.

3. The Proceedings be dismissed.

4. No orders as to costs.

4. The filing of consent orders does not automatically bypass the jurisdictional requirements of the Trees Act. They must be orders that the Court can, and would, make after considering the circumstances: see Breen v Caronna [2008] NSWLEC 293 at [14]-[15].

5. At the onsite hearing I inspected the tree and surrounds, and heard from Mr Sayigh, self-represented, and Mr Abrahamian, solicitor for the respondents.

The tree

6. The tree, a mature Eucalyptus punctata (grey gum), spreads out above the backyards of both the applicant’s and the respondents’ properties. Around 20 metres tall, it has a stem diameter of approximately one metre. I observed the branch stub remaining from the branch that fell onto the applicant’s trampoline. The branch appears to have been overextended – long and slender with excessive weight at its end. Other branches throughout the crown have similar form. Decay of heartwood can be seen in a large wound on the stem. The root buttress has some damage.

Orders the Court can make

7. The proposed orders for tree removal and compensation are orders the Court can make (s 9 of the Trees Act). Commissioners of the Court lack the power to make orders for costs.

The applicant made a reasonable effort to reach agreement

8. Documents filed by Mr Sayigh demonstrate to the Court’s satisfaction that he has made a reasonable effort to reach agreement with the respondents (s 10(1)(a) of the Trees Act). He gave the required notice of the application (s 10(1)(b)).

The tree has damaged the applicant’s property

9. Photographic evidence along with my observations during the onsite hearing demonstrate that the applicant’s trampoline was damaged when a large branch fell from the tree. I am satisfied that the tree has damaged his property.

The tree is likely to cause damage and injury

10. Having inspected the tree from within the respondents’ property, I find other branches, similar to the one that fell in December 2023, are likely to fall in the near future. As per the principle established in Yang v Scerri [2007] NSWLEC 592, I equate the near future with the next 12 months. Branches are above the applicant’s fence and the garden area used by his family. I am satisfied that the tree is likely to cause further damage in the near future and is likely to cause injury (s 10(2) of the Trees Act).

Relevant matters considered

11. I have considered those matters at s 12 of the Trees Act that are relevant to these proceedings.

12. The tree is close to the common boundary, overhangs the applicant’s property, with branches in its crown that are likely to fall.

13. Council’s consent would be required to remove the tree. Council granted consent for its removal on 25 July 2024, citing various defects including those I have described above as the justification for its removal. Council’s consent included a condition that two canopy trees must be planted on the respondents’ property within three months of the tree’s removal. It seems appropriate that this condition is included within the Court’s orders if the tree is to be removed.

14. This grey gum is native to the area. It contributes to biodiversity. It provides environmental values and ecosystem services.

15. Pruning the tree would not sufficiently mitigate the risk. The tree’s removal is required to prevent it causing damage or injury.

16. The tree’s crown form and declining condition have led to the risk. Neither the applicant nor the respondents appear to have contributed to the risk through their acts or omissions.

Conclusion

17. Considering the circumstances, I see no reasonable alternative to ordering tree removal as proposed. The proposed order for compensation is one that the Court can make. Some additional orders should also be made.

18. The respondents have arranged a contractor to remove the tree using a crane. The contractor may not require direct access through the applicant’s property, but they will require access to the applicant’s airspace and may require access to his yard for cleaning up.

19. As is usual in these proceedings, the Court will order that the tree works are done by a suitably qualified and insured contractor. The orders will consider the possibility of further delays due to severe weather.

20. An order will be made requiring the respondents to undertake replacement planting as per Council’s consent.

Orders

21. The Court orders:

1. The application is granted to the extent of the following orders.

2. The respondents shall remove the tree the subject of these proceedings within 28 days of the making of these orders in accordance with the tree removal permit number TA2024/0293 from Georges River Council dated 25 July 2024.

3. The tree removal works in Order (2) are to be done by a suitably qualified and experienced arborist (minimum AQF level 3), with all appropriate insurances, and are to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.

4. The respondents are to give the applicant one week’s notice of the works in Order (2) if the date currently agreed for the works changes.

5. The applicant is to allow reasonable access for the works during reasonable hours of the day.

6. The respondents shall pay the applicant an amount of $850.00 on account of the damage caused by the tree within 7 days of the date of these orders.

7. Within 90 days of the date of these orders the respondents are to plant on their property two canopy trees.

8. Liberty to relist should the weather prevent the respondents completing works in the timeframes above.

9. The exhibits are returned, other than Exhibits A, B and C.

……………………………….

D Galwey

Acting Commissioner of the Court

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Decision last updated: 22 October 2024