Stapleton v Mowbray

[2009] NSWLEC 1245

Land and Environment Court

of New South Wales

CITATION:

Stapleton & Anor v Mowbray [2009] NSWLEC 1245
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:

APPLICANT
Janice Stapleton & Anor

RESPONDENT
Peggy Mowbray

FILE NUMBER(S):

20332 of 2009

CORAM:

Fakes AC

KEY ISSUES:

TREES (NEIGHBOURS) :- removal of Tree 1, damage to property, pruning back to their trunks of overhanging branches from trees 2 and 3,

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

CASES CITED:

Yang v Scerri [2007] NSWLEC 592
Barker v Kyriakides [2007] NSWLEC 292

DATES OF HEARING:

15 July 2009

EX TEMPORE JUDGMENT DATE:

15 July 2009

LEGAL REPRESENTATIVES:

APPLICANT
Ms J Stapleton (litigant in Person)

RESPONDENT
Ms P Mowbray (litigant in Person)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes AC

15 July 2009

20332 of 2009 Janice Stapleton & Anor v Peggy Mowbray

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 Ms Janice Stapleton and Ms Patricia Connelly of 87 Bateau Bay Road Bateau Bay against the owner of three trees growing at 89 Bateau Bay Road. The owner of that property is Ms Peggy Mowbray who was assisted at the on-site hearing by her daughter Ms Lee Mowbray. Also present at the on-site hearing were Mr Ian Hills and Mr Bradley Magus, Tree Management Officers from Wyong Shire Council.

2 The trees are a mature Corymbia gummifera (Red Bloodwood) (Tree 1) located adjacent to the front of the applicants’ garage; another smaller but mature Corymbia gummifera (Tree 2) located adjacent to the rear of the garage; and a mature Acacia floribunda (Gossamer Wattle) (Tree 3) located between the two Bloodwoods and towards the centre of the garage.

3 The applicants are seeking the removal of Tree 1 as they contend that it has caused damage to their property, specifically damage to cars parked in the driveway, and that it will continue to do so due to the dropping of dead wood and small declining branchlets. We were shown a dint in a car allegedly caused by the falling of a dead branch some 6 weeks ago. They are also concerned that it poses a risk of injury to persons. As the tree is on a slight lean towards their property, they are also concerned about the risk of whole tree failure. One of the applicants stated that she had sustained some small scratches from falling branchlets.

4 The applicants are seeking the pruning back to their trunks of overhanging branches from trees 2 and 3 as they are concerned about falling deadwood from the Bloodwood and leaf litter from both trees blocking the gutter of the garage.

5 The trees were inspected from both properties. Tree 1 is in average condition. It has been extensively pruned on the side that overhangs the applicants’ property. The wounds show good signs of closure and the pruning appears to have been carried out in accordance with AS4373 Pruning of Amenity Trees. The respondent has the trees regularly pruned by an arborist, specifically the removal of dead wood and the 10% of live wood allowed by Wyong Shire Council’s relevant Development Control Plan (DCP). There is some dead wood in the canopy and a larger declining branch extending over the applicants’ driveway. The last pruning event on this tree was carried out in about September/ October 2007.

6 Tree 1 leans towards the applicants’ property as it is competing for light with nearby trees. There were no signs of soil heaving or anything else that would indicate the instability of the tree. The tree appears to be well protected by surrounding trees.

7 Tree 2 is a smaller but mature Corymbia gummifera. It is suppressed by nearby larger trees and its canopy projects towards the applicants’ property. However, the majority of its canopy is within the respondent’s garden and one branch overhangs part of the applicants’ property by about 2 m. There is no significant deadwood in the section of the tree close to the applicants’ property that would cause damage or injury. The tree has extensive but old borer damage in the trunk but the canopy is in good condition.

8 Tree 3 is a mature Acacia floribunda. It overhangs the applicants’ garage by 2-3 m. The applicants removed a section of the canopy that was resting on the roof. The tree is healthy with a normal quantity of small dead branches of between 5-10 mm in diameter.

9 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. The four tests in this section must be applied to each tree.

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

(a) The trees are wholly located on the respondent’s property.
(d) The Red Bloodwoods are endemic to the area and are possibly remnants of the original plant community as they are surrounded by other large and endemic species and were present when the respondent bought her property in 1978. As such they contribute to the local ecosystem and to biodiversity as would the wattle which was planted.
(e) The trees contribute to the scenic value of the land on which they are located.
(f) The trees have value to public amenity as they are clearly visible from the nearby shops, surrounding residences and the main road through the village. They form part of the natural canopy of the area.
(h)(i) (ii) The respondent has had the trees regularly pruned, especially tree 1. The applicants have undertaken some pruning of tree 3 as they are entitled to do under the Council’s DCP. The applicants did not bring the incidents of damage and injury to the attention of the respondent when they happened thus preventing the respondent from taking further action. The applicants built the garage and extended the house in 1995. The trees were in existence at that time.

11 Coming back to section 10(2) with respect to each tree. Tree 1 does contain dead wood that could fall and cause damage or injury and there was undisputed evidence of damage to a car therefore s 10(2) is satisfied with respect to this tree.

12 With respect to trees 2 and 3 there is no evidence of damage or injury being caused by these trees nor are they likely to do so in the near future. The applicants are primarily concerned with the falling of leaves and flowers onto the roof and gutter of the garage. Relevant here is a tree dispute principle published by the Land & Environment Court in Barker v Kyriakides [2007] NSWLEC 292 The essence of this principle is that the dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees will not ordinarily provide the basis for ordering the removal of or intervention with an urban tree. It is expected that some level of external housekeeping and maintenance is normal for people who live in leafy urban environments and who benefit from the environmental and aesthetic services that trees provide. Therefore none of the four tests under s 10(2) are satisfied with respect to these trees and the Court does not have jurisdiction to make an order concerning these trees.

13 After viewing the evidence in this matter, the Orders of the Court with respect to each of the trees are:

1. The applicant to remove tree 1 is refused.

2. The application to prune overhanging branches of trees 2 and 3 back to their trunks is refused.
3. Due to the presence of dead wood in Tree 1 over the driveway of the applicants’ property, and the potential for damage or injury, the respondent is to organise and pay for the removal of deadwood > 25 mm in diameter from that tree. The branch indicated in the attached photograph is also to be removed at the point indicated on the photograph. The respondent may use her regular arborist or engage the services of another AQF level 2 arborist. The work must be carried out in accordance with AS4373:2007 and the WorkCover Code of Practice for the Amenity Tree Industry. This work is to be completed within 30 days of the date of these orders and the removal of deadwood > 25 mm in diameter is to occur at intervals no greater than every two years from the date of these orders. The applicants are to provide all reasonable access to their property, if required by the arborist, for the works to be carried in the safest manner. At least 3 working days notice must be provided to the applicants of these works.

4. The two-yearly removal of dead wood > 25 mm is to include trees 2 and 3.

___________________

J Fakes
Acting Commissioner of the Court

The branch to be removed is indicated with a red arrow. The pink line shows the approximate position of the final cut. The living branch heading towards the respondent’s property is to be retained. All dead wood > 25 mm in diameter is to be removed from the entire tree.

22/07/2009 - Addition of Order No. 4 - Paragraph(s) Orders