Stipancic v Macdonell

[2010] NSWLEC 1261

Land and Environment Court

of New South Wales

CITATION:

Stipancic v Macdonell [2010] NSWLEC 1261

PARTIES:

APPLICANTS
Mr Z Stipancic
Mrs M Stipancic

RESPONDENT
Mr D Macdonell

FILE NUMBER(S):

20509 of 2010

CORAM:

Fakes C

KEY ISSUES:

TREES (NEIGHBOURS) :- injury to persons,
likley habitat tree,
senescent,
removal ordered

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

20/09/10

 
DATE OF JUDGMENT: 

20 September 2010

EX TEMPORE JUDGMENT DATE:

20 September 2010

LEGAL REPRESENTATIVES:

APPLICANTS
Z and M Stipancic [litigants in person]

RESPONDENT
D Macdonell [litigant in person]

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C

20 September 2010

20509 of 2010 Stipancic v Macdonell

JUDGMENT

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 owners of a property in Tuross Head against the owner of tree growing on an adjoining property. The adjoining land is a vacant block.

2 The applicants are seeking the removal of the tree as they contend that branches falling from the tree, or the failure of the entire tree, could cause injury to any person. They are particularly concerned for the safety of themselves, as they regularly use their rear garden, their family and an elderly person with dementia who resides on their property.

3 The respondent stated that he had advice that the tree could be reduced by 30% without the approval of Eurobodalla Shire Council (the council). The respondent also stated that he was advised that pulling the whole tree over would be very difficult and that if anything needed to be done to the tree it could be taken back to the main trunk and the regrowth managed.

4 I identified the tree as Eucalyptus botryoides (Bangalay or Southern Mahogany). The species, its large diameter and overall size indicate that this is likely to be a remnant of the original vegetation of the area.

5 The tree is growing close to the eastern boundary of the applicants’ property and its base partly encroaches onto their property. The base of the tree is substantially on the respondent’s property and therefore the Court has the jurisdiction to hear this matter. Almost all the canopy overhangs the applicants’ property.

6 The applicants purchased their block in 1999 and finished building their dwelling in mid 2000. They stated that from that time, live branches have fallen from the tree into their property in both calm and windy weather. They said that the branches are commonly the length of a car.

7 The applicants stated that they wrote to the respondent about the tree and attempted to discuss the matter with him when he attended his property. The respondent had no recollection of the letter and disputed the nature of the discussions with the applicants. There was no agreement between the parties on the issue of communications regarding the tree.

8 The respondent has owned his property since 1986. In 2007 he applied to the council to have several trees removed from his block as he considered these could cause problems in the future. The respondent’s position is that the applicants should have removed the tree subject to this application when they cleared their land prior to developing their block or, alternatively, they should have purchased another property.

9 The applicants tendered photographs of branches that had fallen from the tree on various occasions. Photographs 1-4 in exhibit A show a substantial live branch that fell from the tree into their property in 2008.

10 The majority of the photographs show a significant number of branches that fell from the tree during a severe storm on 30 May 2010. The photographs show branches of a range of sizes including one I estimate to be at least 300 mm in diameter. One photograph shows a branch on a garden shed with some damage being caused to the shed. Another photograph shows a large detached branch that I estimate to be at least 8m in length caught in the tree and overhanging their property. This branch was removed by a contractor on behalf of the State Emergency Services (SES).

11 In his written submission, the respondent states that the wind on 30 May was of exceptional strength and appears to imply that this is an infrequent occurrence.

12 The applicants also included a council “application to remove or lop trees” provided and signed by Mr Justin Newbery of JBN Tree Services, the contractor engaged by the SES to remove the hanging branch. Mr Newbery recommends removing the tree “because of bird damage and large cavities in the tree half way up. This tree is very dangerous and will lose more branches over time”.

13 I inspected the tree from both properties. The tree leans towards the west and over the applicants’ property. Grass and debris at the base of the tree prevented me from inspecting the base of the tree although no defects were noticed in the lower portion of the trunk. The site is on a slope and is exposed to winds from the south and the east.

14 There is evidence of many branch failures over the entire canopy. These failures include large and small diameter branches. Several cavities were observed, including the one referred to by Mr Newbery, as was the ‘bird damage’ he referred to. ‘Bird damage’ is the removal of bark from parts of the trunk and branches, particularly in the vicinity of cavities.

15 There is some dead wood throughout the tree, some of which is quite large. Whilst the failure of dead wood is predictable and can be removed to prevent damage or injury, in this particular situation, the evidence shows that the majority of the failures have been live branches.

16 Under s 10(2), of the Act, the Court must not make an order unless it is satisfied that the tree 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. Only if one or more of these tests is satisfied can the Court consider what, if any, orders should be made under s 9 of the Act.

17 I am satisfied that this tree could cause injury to any person, and whilst not pressed by the applicants, has caused damage to property and could continue to do so. Therefore as several of the tests under s10(2) are satisfied, the jurisdiction is enlivened and the Court can make an order.

18 However, in making orders, the Court must consider a number of matters under s12 of the Act. The relevant considerations in this matter are:

(a) The tree is substantially located on the respondent’s property.
(b) As a remnant and due to the numerous cavities it contains, the tree is likely to contribute to the local ecosystem and to biodiversity.
(c) The tree contributes to the natural landscape and scenic value of the locality.

19 While I recognise the ecological importance of this tree, in my opinion, the tree has reached the physiological stage of senescence where its structural decline will continue. This will include the failure of large branches. The respondent has suggested some reduction or lopping back to the main trunk. I consider these options to be impractical in the circumstances of this matter given the extent of the overhang onto the applicants’ property and the difficulty of managing what will be weakly attached regrowth.

20 On the basis of the evidence of the numerous branch failures, the numerous cavities and associated structural defects, the stage of life of the tree, its exposure to winds and the extent of the overhang over a frequently used garden, the tree should be removed.

21 The Orders of the Court are:

1. The application to remove the tree is upheld.
2. The respondent is to engage and pay for an AQF level 3 arborist with the appropriate skills and expertise to remove the tree to ground level or to a maximum height of 4 m above ground level. The remaining stump is to be poisoned to prevent regrowth.
3. The work is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry .
4. The applicants are to provide all reasonable access for the works to take place in an efficient and safe manner.
5. Given the number of cavities and their likely use by wildlife, within 1 week of the date of the tree’s removal, the arborist is to inspect the tree for wildlife. If fauna are present, an arrangement must be made for a representative of a wildlife rescue service to be on site when the tree is removed.
6. The respondent’s arborist is to give the applicants at least 2 working days notice of the commencement of the works.
7. The works are to be completed within 60 days of the date of these orders.

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