Sidoti v Sleeman

[2017] NSWLEC 1741

Land and Environment Court

New South Wales

Medium Neutral Citation:

Sidoti v Sleeman [2017] NSWLEC 1741

Hearing dates:

18 December 2017

Date of orders:

18 December 2017

Decision date:

18 December 2017

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

(1) Within 60 days of the date of these orders the respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3 in Arboriculture), with all appropriate insurances, to prune the tree to:
(a) Remove all deadwood greater than 50 mm diameter;
(b) Weight-reduce the long limbs extending to the north over the applicants’ property, removing no more than 20% of the foliage of each limb.

 

(2) The works are to be carried out in accordance with AS4373:2007 Pruning of amenity trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry.

 

(3) The respondents are to give the applicants at least 7 days’ notice of these works.

 (4) The applicants are to allow any property access required for the works during reasonable hours of the day.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS); damage to property; risk of injury; orders for pruning.

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006

Category:

Principal judgment

Parties:

Bartolomeo Sidoti (First Applicant)
Eleonora Sidoti (Second Applicant)
Ross Sleeman (First Respondent)
Heather Sleeman (Second Respondent) as Executors of the Estate of the late Keith Sleeman

Representation:

Marcus Conomos, Solicitor
Conomos & Spinak Lawyers (Applicants)
Ross Sleeman and Heather Sleeman, Litigants in Person (Respondents)

File Number(s):

227502 of 2017

Judgment

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

Background

1. After a large limb fell from a neighbouring gum tree, causing damage to their roof guttering and a fence, Mr and Mrs Sidoti (‘the applicants’) engaged an arborist to assess the tree. When made aware of the arborist’s recommendation that the tree be removed, Mr and Miss Sleeman, as executors for their father’s estate (‘the respondents’), applied to the City of Canada Bay (‘Council’) for the tree to be removed. Council subsequently issued a permit to remove the tree. Arborists then engaged by the respondents to remove it advised them that the tree was healthy and did not require removal, so they decided on this advice not to remove it. The Sidotis, concerned that a risk remained and was not being dealt with, applied to the Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’) seeking orders for the respondents to remove the tree, and for their costs in respect of the proceedings. If they wish to pursue costs the applicants will need to file a Notice of Motion, which would be determined by a Judge or the Registrar of the Court. At the hearing, Mr Conomos, solicitor for the applicants, clarified that they do not necessarily want the tree removed, but want orders to deal with any risk as needed.

2. Both parties obtained further arboricultural evidence: the applicants from arborist Mr Michael Sullings and the respondents from arborist Mr Mark Hartley. Both arborists attended and gave evidence at the onsite hearing.

The tree

3. The Lemon-scented Gum (Corymbia citriodora) stands in the front north-western corner of the respondents’ property. Its crown extends over the footpath, roadway and the applicants’ property, as well as over the respondents’ property, where its spread is limited by another mature tree not far to its south.

4. A tall, spreading tree with a crown that appears healthy, it was planted, according to Mr and Miss Sleeman, by their parents some 50 or 60 years ago. Closer inspection shows some damage in several forks between stems or branches, the pattern of this damage consistent with parrots chewing and removing bark and cambium. (Like us, parrots apparently have some consideration for the security of future generations, for the hollows that may result from this activity are likely to take several decades to develop.)

5. Exposed wood in the stem wound that remains from the limb failure does not appear to be decayed. Parrot damage can be seen on the upper side of this wound where the failed limb attached to the stem.

6. Mr Sullings’ opinion is that the nature of the limb failure, being at the stem and not out some way from the fork, suggests the possible presence of decay in the stem, rather than failure resulting from ‘Summer Branch Drop’.

7. Mr Sullings recommended in his report that an aerial inspection of the wound and other forks be carried out. The applicants did not arrange this. Mr Sullings says he would not be confident to make any recommendations regarding the tree’s management (removal, pruning or other works) without the benefit of findings from such an aerial inspection.

8. Mr Hartley says the tree appears fairly typical for the species and does not differ greatly from the average tree. He says there are no visible signs of decay within the stem wound remaining from limb failure, nor in any of the forks with parrot damage. He is of the view that an adequate assessment can be made from the ground, and so no aerial inspection is required.

9. Mr Hartley thinks there is a low probability of any part of the tree falling and causing significant injury or damage, while admitting that, like any tree, some limbs are likely to fall now and then. He says there are no obvious defects or other signs that would indicate which limbs might fall, so there is little point in pruning the tree in an attempt to prevent limb failure.

The tree has caused damage

10. The respondents do not dispute that the fallen limb caused some damage to the applicants’ property. I am satisfied to the extent required at s 10(2) of the Trees Act that the Court’s jurisdiction is enlivened, and I can make orders as I see fit with the aim of preventing further damage.

Other matters to consider

11. I have considered the matters at s 12 of the Trees Act and find that the tree contributes to public amenity and to the amenity and landscape value of the respondents’ property as well as the applicants’.

12. I accept that the applicants fear further limb failures. The cause of the 2016 limb failure is unclear, although apart from the presence of parrot damage, there is some possibility that works by arborists pruning an adjacent Jacaranda affected this limb, which failed less than three months later. This possibility is supported by Mr Hartley’s contention that discoloration in the upper part of the wound indicates that the limb might have partially failed prior to the day it fell. It was clear that the limb was heavy and extended some significant length from the stem. According to the respondents, while pruning the Jacaranda the arborists also removed a limb from the gum tree, immediately above the limb that later failed, which was used for support while working.

13. Whole tree failure is unlikely, so tree removal would seem disproportionate to the risk posed by the tree. I accept Mr Hartley’s contention that no decay can be seen in damaged forks. There is nothing to suggest any existing damage will contribute to further limb failure. Some overextended limbs to the north have a higher probability of failure than other limbs. Large deadwood is present over the road, parked cars and footpath, as well as over both properties. This deadwood is likely to fall in the foreseeable future, and may cause damage. Relatively routine pruning work can be carried out to reduce the risk of such limbs falling, so this will be ordered. The existing situation then being addressed, I see no need for the Court to order ongoing inspections or pruning into the future. This is something the tree’s owners can arrange as they see fit, as they might with any other tree.

Orders

14. As a result of the foregoing, the orders of the Court are:

1. Within 60 days of the date of these orders the respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3 in Arboriculture), with all appropriate insurances, to prune the tree to:

1. Remove all deadwood greater than 50 mm diameter;

2. Weight-reduce the long limbs extending to the north over the applicants’ property, removing no more than 20% of the foliage of each limb.

2. The works are to be carried out in accordance with AS4373:2007 Pruning of amenity trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry.

3. The respondents are to give the applicants at least 7 days’ notice of these works.

4. The applicants are to allow any property access required for the works during reasonable hours of the day.

____________________________

D Galwey

Acting Commissioner of the Court

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Decision last updated: 22 December 2017