Stewart v Ayoub

[2017] NSWLEC 1603

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Stewart & anor v Ayoub & anor [2017] NSWLEC 1603
Hearing dates:	27 July 2017
Date of orders:	31 October 2017
Decision date:	31 October 2017
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is upheld. See orders at paragraph 19.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS); damage to a fence, risk of damage or injury; further inspection required; orders for pruning and inspection; order for application to Council; order for fence repair.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	Renee Stewart (First Applicant) Michelle Stewart (Second Applicant) Sohair Zaki Ayoub (First Respondent) Magdy Hanna Ayoub (Second Respondent)
Representation:	Renee Stewart and Michelle Stewart, Litigants in Person (Applicants) Nevine Youssef, agent (Respondents)
File Number(s):	151071 of 2017
Publication restriction:	No

Judgment

Background

1. In the back corner of a Campbelltown property belonging to Mr and Mrs Ayoub (‘the respondents’), a Sydney Blue Gum (‘the tree’) stands some 25 metres tall and spreads over the back gardens of at least four properties.

2. Mrs Stewart and her daughter Ms Stewart (‘the applicants’) own the property behind the Ayoubs’. They have been asking the Ayoubs to remove the tree, for reasons outlined below. The Ayoubs have not removed the tree, so the Stewarts have applied to the Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’) seeking orders for the tree to be removed and for the fence on their common boundary to be repaired.

Onsite hearing and submissions

3. The parties have not provided any arboricultural reports. I bring my own arboricultural expertise and experience to this matter. The hearing took place onsite, allowing inspection of the tree from within both rear gardens.

4. Ms Stewart stated at the hearing that their main issues with the tree are:

• that it shades their entire garden;

• that it drops a lot of debris on their garden; and

• that it has damaged the steel panel fence.

5. Mrs Stewart stated that, due to her limited physical mobility, she can no longer walk around the neighbourhood, and so would walk in her garden from her house down to the back fence and back. The amount of debris that falls onto the ground daily now prevents her doing this.

6. Ms Youssef, acting as agent for her parents, said that they do not object to removing the tree – indeed, if they must do anything to the tree, including any pruning, they would rather remove it. The Ayoubs are not attached to the tree and are of the view that any ongoing pruning would ultimately cost them more than removing the tree. They rent out the property and say their financial resources are limited. The Ayoubs have made enquiries to Campbelltown City Council about removing the tree and were told they would need to obtain an arborist report to accompany an application for tree removal. They have taken no further action.

The tree

7. A mature Sydney Blue Gum, this tree is native to the area and is visually significant in the landscape. It can be seen for some distance and contributes to public amenity. It provides shading and cooling. It provides habitat – although I saw no nesting hollows there were numerous birds in the tree during the onsite hearing, including many of native species.

8. The tree has not been pruned recently. Large deadwood is present throughout the crown. Long limbs extend considerable distances in all directions, with those attached lower on the stem especially being prone to overextension due to overshadowing from limbs above. A long wound on a large limb that extends above the common boundary extends for several metres, with decayed heartwood visible. Foliage at the limb’s end is heavy. In my view, this limb is likely to fail in the near future. For the purpose of this matter I consider a period of 12 months reasonably represents ‘the near future’, in keeping with the rule-of-thumb established in Yang v Scerri [2007] NSWLEC 592. Other overextended limbs could be expected to fail within a longer timeframe.

9. From the ground I observed several limbs with signs of physical damage that might be the result of cockatoo activity, as often happens, or some other cause. The extent of damage could not be properly assessed from the ground.

The Court may make orders

10. Due to the tree’s size, conclusions made via an assessment from the ground are limited. There is enough to satisfy me that at least one large limb might fail. Damage or injury could reasonably be expected to result from such failure. Large deadwood throughout the crown is also likely to fail in the near future and may cause damage or injury. According to s 10(2) of the Trees Act, this enlivens the Court’s jurisdiction. I am satisfied that pruning, at the least, is required to reduce the risk. It is possible that further hazards not visible from the ground might be present in the tree’s crown, to the extent that tree removal is required. However, given the significance of the tree I am not comfortable making that recommendation from only limited, ground-based observations, guessing at the severity of obscured hazards.

The Court’s role

11. The Court’s role in determining tree disputes is not to replace the usual processes of local government, although any Court orders make obsolete the need for Council consent for those works. Where a property owner requires the consent of the local government to prune or remove a tree, obtaining an arborist report is frequently part of the process. Typically, a local government officer weighs the benefits of the tree against any identified issues, considers possible solutions, and permits certain actions. If there is little dispute between the tree owner and their neighbours regarding any outcome of this process, there seems no need for the Court to interfere and take over Council’s role.

Shade

12. I accept that the tree shades a large part of the Stewarts’ garden, making it difficult to grow other plants such as fruit trees. Such shading may be more appropriately considered a nuisance, rather than actual damage, but even if I accept that fruit trees are suppressed, and thereby damaged, by the tree’s shade, I would not find reason to remove the tree on this basis when considering discretionary matters, as required, at s 12 of the Trees Act. The suppression of a few fruit trees is minor compared to the environmental benefits of the tree.

Debris

13. Leaves twigs and small branches fall onto the Stewarts’ garden. Mrs Stewart said that some time ago a branch fell and damaged a fig tree, but there was no evidence that debris has caused damage. Mrs Stewart is worried she might trip on fallen debris and injure herself.

14. At some point after it has fallen, debris might no longer be considered part of the tree. But even if I take the Stewarts’ claims at their highest, and accept that small branches on the ground are part of the tree, and might cause injury, I would apply the principle established in Barker v Kyriakides [2007] NSWLEC 292: where people enjoy the benefits of trees in urban environments, it is reasonable to expect that they conduct maintenance of their property that might include cleaning up of leaves, twigs and other debris in outside areas and from roof gutters and the like. I appreciate this would be a challenging if not impossible task for Mrs Stewart, but there are many routine tasks of property maintenance that even the fittest owner cannot carry out and might be outsourced. Therefore, I see no reason to make any orders to deal with the issue of debris here.

The fence

15. The steel panel fence along the boundary is, according to the Stewarts, some ten years old. Each panel is approximately two metres long. Where two panels meet near the tree, they are pushed upwards so that a gap of 15 cm or so has opened up at the top of the join. A small panel has been placed as a patch over the gap on the respondents’ side. A large root extends from the base of the tree in this direction. The remainder of the boundary fence is undamaged. In the absence of any other likely cause, I accept that the tree’s root has caused this lifting. The parties agree that the fence needs repair. The Stewarts say the Ayoubs should pay for this, as it is their tree that has damaged the fence, while the Ayoubs are of the view that costs for common boundary fencing should be shared. As I am satisfied that the Ayoubs’ tree has damaged the fence, I accept the Stewarts’ submission that the Ayoubs should pay for its repair.

Conclusion

16. On the basis of the above, I will order that the Ayoubs engage a qualified arborist to climb the tree to carry out pruning works, and at the same time carry out a full aerial inspection of all major limbs throughout the crown, take photographs and prepare a report. If the recommendations of that report are for further works, either further pruning or removal of the tree, the Ayoubs are to submit the report with an application for tree works to Campbelltown City Council. It is appropriate that such works go through the usual Council approval process, rather than relying on the Court to review the arborist’s report.

17. Because the engaged arborist must not only prune the tree, but also asses it and prepare a report, their qualifications and experience must be equivalent to at least AQF level 5.

18. Repair of the fence will also be ordered.

Orders

19. The orders of the Court are as follows:

1. Within 60 days of the date of these orders, the respondents are to engage a suitably qualified and experienced (minimum AQF level 5) arborist to:

1. climb and prune the tree, removing the damaged limb in the attached photograph and any deadwood greater than 60 mm in diameter;

2. inspect the remainder of the tree’s crown and photograph any defects; and

3. prepare a written report that includes findings (with photographs) and any recommendations for managing identified risks.

2. The works in (1) are to be carried out in accordance with AS4373 Pruning of amenity trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry.

3. The respondents are to give the applicants 7 days’ notice of the works in (1).

4. The applicants are to provide any access necessary for the works in (1) to be carried out during reasonable hours of the day.

5. Within two weeks of the inspection the respondents are to obtain a copy of the arborist’s report from order (1)(c) and are to provide the applicants with a copy of that report.

6. If the arborist’s report (see Order (1)(c)) includes recommendations for further works, within 90 days of the date of these orders the respondents are to submit an application to Campbelltown City Council, along with a copy of the arborist’s report, for a permit to carry out any works recommended by the arborist. If the arborist does not recommend further works, orders (6) to (10) lapse.

7. Within 30 days of receiving a determination from Campbelltown City Council the respondents are to engage a suitably qualified and experienced (minimum AQF level 3) arborist to carry out any permitted works.

8. The works in (7) are to be done in accordance with the guidelines of AS4373 Pruning of amenity trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry.

9. The respondents are to give the applicants 7 days’ notice of the works in (7). At the same time as giving notice the respondents are to provide the applicants with a copy of Council’s determination of the application.

10. The applicants are to provide any access necessary for the works in (7) to be carried out during reasonable hours of the day.

11. Within 30 days of the completion of all works arising from the previous orders, the respondents are to engage a fencing contractor to repair to a condition equivalent to adjacent panels, or replace, the damaged fence panel closest to the tree.

____________________________

D Galwey

Acting Commissioner of the Court

**********

Amendments

13 November 2017 - Pursuant to the UCPR r 36.17, the 'slip rule', the orders at [19] are varied to read as follows:

19 The orders of the Court are as follows:

(1) Within 60 days of the date of these orders, the respondents are to engage a suitably qualified and experienced (minimum AQF level 5) arborist to:

(a) climb and prune the tree, removing the damaged limb in the attached photograph and any deadwood greater than 60 mm in diameter;

(b) inspect the remainder of the tree’s crown and photograph any defects; and

(c) prepare a written report that includes findings (with photographs) and any recommendations for managing identified risks.

(2) The works in (1) are to be carried out in accordance with AS4373 Pruning of amenity trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(3) The respondents are to give the applicants 7 days’ notice of the works in (1).

(4) The applicants are to provide any access necessary for the works in (1) to be carried out during reasonable hours of the day.

(5) Within two weeks of the inspection the respondents are to obtain a copy of the arborist’s report from order (1)(c) and are to provide the applicants with a copy of that report.

(6) If the arborist’s report (see Order (1)(c)) includes recommendations for further works, within 90 days of the date of these orders the respondents are to submit an application to Campbelltown City Council, along with a copy of the arborist’s report, for a permit to carry out any works recommended by the arborist. If the arborist does not recommend further works, orders (6) to (10) lapse.

(7) Within 30 days of receiving a determination from Campbelltown City Council the respondents are to engage a suitably qualified and experienced (minimum AQF level 3) arborist to carry out any permitted works.

(8) The works in (7) are to be done in accordance with the guidelines of AS4373 Pruning of amenity trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(9) The respondents are to give the applicants 7 days’ notice of the works in (7). At the same time as giving notice the respondents are to provide the applicants with a copy of Council’s determination of the application.

(10) The applicants are to provide any access necessary for the works in (7) to be carried out during reasonable hours of the day.

(11) Within 30 days of the completion of all works arising from the previous orders, the respondents are to engage a fencing contractor to repair to a condition equivalent to adjacent panels, or replace, the damaged fence panel closest to the tree.

31 October 2017 - Cover page amended to reflect correct class.

Decision last updated: 13 November 2017