Schutz v Kotsis

[2010] NSWLEC 1332

Land and Environment Court

of New South Wales

CITATION:

Schutz v Kotsis [2010] NSWLEC 1332

PARTIES:

APPLICANT
Mr V Schutz

RESPONDENT
Ms F Kotsis

FILE NUMBER(S):

20657 of 2010

CORAM:

Fakes C

KEY ISSUES:

TREES (NEIGHBOURS) :- Damage to property; injuryto persons; rural residential zone;

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006
Hornsby Shire Local Environmental Plan 1994

CASES CITED:

Yang v Scerri [2007] NSWLEC 592

DATES OF HEARING:

29/11/2010

EX TEMPORE JUDGMENT DATE:

29 November 2010

LEGAL REPRESENTATIVES:

APPLICANT
Mr V Schutz [litigant in person]

RESPONDENT
Mr J Dimitrpoulos [agent]

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C

29 November 2010

20657 of 2010 Schutz v Kotsis

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

1 COMMISSIONER: This is an application pursuant to Part 2 s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Arcadia against the owner of tree growing on an adjoining property.

2 The applicant is seeking the removal of dead trees and the pruning of tops and branches of live trees. He is also seeking the removal of soil from live trees in order to prevent ‘collar rot’. Orders are also sought for the owner to remove any future trees that are dead or dying or branches that overhang the applicant’s property.

3 The applicant is seeking these orders on the basis that the dead tops of 2 trees have fallen into his property in the past and that future failures of trees, or parts of them, may cause injury to anyone nearby or may cause damage to the dividing fence.

4 The trees in question are a row of 18 Pinus radiata growing on the south-eastern portion of the respondent’s property along the diving fence between the parties’ properties. There are a number of other trees along this fenceline that are not part of this application.

5 The properties are on land zoned Rural BA (Small Holdings – Agricultural Landscapes) under the Hornsby Shire Local Environmental Plan 1994. I am satisfied that Part 2 of the Act applies to this land as it has the substantial character of “rural-residential” as considered in s 4(1)(a) of the Act.

6 On the respondent’s property to the west of the trees a dam and garden beds have been constructed. The dam was constructed in about 2006. According to the applicant this has resulted in the build up of soil around the base of the trees as well as an increase in moisture levels. He contends that the build up of soil will result in ‘collar rot’ and therefore hasten the decline of the trees.

7 The land on the applicant’s property adjacent to the trees is a mown grass paddock occasionally used as a play area. The area is some distance from the house. The applicant also passes beneath the trees when he mows the grass. Apart from the fence, some service pits and a pole there are no permanent structures on the applicant’s land that adjoins the trees.

8 Between the directions hearing and the on-site hearing the respondent has removed 7 of the trees in contention. A number of the remaining stumps showed extensive decay consistent with the trees having been dead for some time.

9 The remaining trees were inspected from the ground from both properties. The numbering system used by the applicant in the application form is used to identify the trees.

10 Commencing from the south and moving north, T11 is a semi-mature pine in average to good health with no obvious problems of defects. I consider the risk of injury or damage to be low.

11 The next tree (identified as ‘T’) is a declining pine that leans towards the respondent’s dam. Should it fail it is unlikely to cause injury to any person or damage to the applicant’s property.

12 Trees 10 and 9 are relatively healthy. Tree 9 has some dead wood but this is unlikely to cause injury to any person or damage to property.

13 The next 4 trees (T8-T5) have been removed. To the north of these is a small fence and on the northern side of the fence are two trees both marked as ‘T’ on the application form. The most southern of these trees is in good health and the one to its north is in average health with some declining branches. However these branches are relatively small in diameter and should they fail the likelihood of them causing damage or injury is low.

14 T4 has been removed.

15 T3 is an over-mature tree. The base of this tree shows signs of decay and degradation of the timber. There is obvious damage to the roots on the eastern side and tension side of the tree. It is also clear that some branches are in a degraded condition and quite brittle. Given the lean of the tree and the distribution of its canopy it is unlikely to fail onto the applicant’s property. However should it fail it could cause injury to anyone on the respondent’s property who might be in its vicinity. [This tree is located closest to the well and has string around its trunk.]

16 The next 2 trees (T2 and T1) have been removed. The remaining 4 live trees (again marked as ‘T’) are in average health with minor dead wood. I saw no obvious defects at the base of these trees that would lead me to conclude that they pose a risk of damage to any thing in the near future or injury to anyone.

17 Under s 10(2) of the Act, the Court must not make an order unless it is satisfied that any of the trees concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property or is likely to cause injury to any person.

18 The applicant is concerned about future damage or injury. In a guidance decision published in Yang v Scerri [2007] NSWLEC 592, as a rule of thumb, the ‘near future’ is deemed to be a period of 12 months from the date of the determination. I consider this time period to be appropriate in this matter.

19 Of the trees inspected, the only tree I consider satisfies one of the tests under s 10(2) is T3 as it could cause injury to someone on the respondent’s property. It therefore meets the test ‘could cause injury to any person’ and thus enlivens the jurisdiction to make orders with respect to this tree.

20 With respect to the remaining trees I am not convinced that they are likely to cause injury to any person nor are they likely in the near future, to cause damage to the applicant’s property. The use of the applicant’s land in the vicinity of these trees is infrequent and the area for use is extensive and not restricted to the portion of the property that adjoins the trees in question.

21 It is clear from the photographs provided by the applicant, that at the time he made the application, a number of the trees were dead and deteriorating and the risk of injury or damage was high.

22 However, those trees have been removed and the risk of damage or injury from the remaining trees is low. With respect to the issue of ‘collar rot’, I was not shown any evidence of what this may be. As the soil has been in place for about 4 years the removal of it at this stage would be of little benefit. In the circumstances of this case its removal is not something the Court could order.

23 Therefore as a result of the forgoing, the Orders of the Court are:

1. The application to remove the trees is upheld in part.
2. The application for pruning of tops and overhanging branches is dismissed.
3. The application for the removal of soil is dismissed.
4. The respondent is to engage and pay for an AQF level 3 arborist to remove Tree 3.
5. The work is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.
6. The work is to be completed within 90 days of the date of these orders.

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