Thomas v Al-Mouzafar
[2019] NSWLEC 1104
•14 March 2019
Land and Environment Court
New South Wales
Medium Neutral Citation: Thomas v Al-Mouzafar [2019] NSWLEC 1104 Hearing dates: 14 March 2019 Date of orders: 14 March 2019 Decision date: 14 March 2019 Jurisdiction: Class 2 Before: Galwey AC Decision: (1) Within 45 days of the date of these orders, the respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances to remove the nine cypress trees in his back garden to no more than one metre above ground level. The works are to be done in accordance with the guidelines of the WorkCover NSW Code of Practice for the Amenity Tree Industry.
(2) The works are to be done from within the respondent’s property, but the applicant is to allow access to her property on reasonable notice, during reasonable hours of the day, for the purpose of cleaning up debris.
(3) Within 60 days of the date of these orders the respondent is to plant three trees that are native to NSW and that can grow to at least 10 metres in height. The trees are to be planted at least one metre from any boundary.Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – risk of damage or injury – dead trees – fire – orders for removal Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW) Cases Cited: Freeman v Dillon [2012] NSWLEC 1057
Yang v Scerri [2007] NSWLEC 592Category: Principal judgment Parties: Linda Thomas (Applicant)
Younese Al-Mouzafar (Respondent)Representation: Counsel:
Other:
M Mando (Respondent)
L Thomas, litigant in person (Applicant)
File Number(s): 2018/380783 Publication restriction: No
Judgment
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
Background
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Linda Thomas (‘the applicant’) made this application to the Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’), seeking orders for a row of nine neighbouring trees to be removed. The trees are alongside her property and according to Ms Thomas they are likely to fall and cause damage or injury.
The trees
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No arboricultural reports have been submitted. Bringing my own arboricultural expertise and experience, I observed the trees during the onsite hearing. The nine Cupressus × leylandii (Leyland Cypress) trees (‘the trees’) grow in a row in the back garden of Mr Al-Mouzafar (‘the respondent’), less than a metre from the common boundary fence shared with Ms Thomas. At the western end of the row, the tree nearest the dwelling (T1) is almost dead. The next tree along the row (T2) is dead. Half of T3 is dead. The remaining trees T4–T9 are dead. The trees are approximately 13–15 metres tall.
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The stem of T1 is on an angle – it leans into T2. The other eight trees are upright.
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Within the fall zone of the trees Ms Thomas has the outdoor area near her pool, sheds containing bikes and so on, and a pet rabbit.
The applicant’s submissions
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Ms Thomas submitted that she became most concerned when she noticed T1 swaying severely in the wind. She is concerned it will fall onto her property and damage her shed or injure someone in her garden. Given their condition, other trees might do the same.
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Ms Thomas stated that another tree in the row, closer to the house than T1, fell approximately five years ago, but luckily fell away from her property.
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Ms Thomas submitted that dead conifers are highly flammable. If the trees catch on fire following lightning strike or some other cause of fire, her dwelling is likely to burn.
The respondent’s submissions
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Mr Mando, counsel for the respondent, submitted that the trees are not dead; rather their condition is seasonal. He submitted that the angle of T1 is natural – it has grown like this. He argued that the Court has no jurisdiction to make orders, as trees have not caused any damage and there is no evidence that they are likely to cause damage or injury. There is no evidence that they are likely to catch on fire.
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Mr Mando submitted that the trees provide amenity to the respondent’s property; also shade and privacy. He argued that they increase the property’s value. He claimed the trees are part of the natural ecosystem, that they provide habitat (pointing out two birds resting in the trees) and that their removal would deprive birds of their natural habitat. As we observed this row of mostly dead cypress trees he described the scene as ‘beautiful’.
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Mr Mando did not dispute that one tree at the western end of the row fell some years ago, but argued that the tree has long been removed and is not relevant to these proceedings.
Findings
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Despite Mr Mando’s submissions to the contrary, seven of the trees are dead and the other two are likely to die shortly. The root-plate of T1 has failed – the tree has fallen into T2, where it rests. Its growth pattern is not consistent with a tree that has grown at an angle. With its failed roots, it would sway in the wind more than the others, as Ms Thomas described. This tree is likely to fall to the ground in the near future if winds are sufficient.
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The failure of another tree several years ago is relevant here, as it provides useful information when considering the risk of other trees failing. Roots of T1 have now failed also. The failure of two trees in five years suggests to me that the cause of tree death is a pathogen or other factor affecting their roots. This leads me to find that other trees in the row are also likely to fail in the near future, a period I regard as 12 months since Yang v Scerri [2007] NSWLEC 592.
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Any of the trees might fall onto Ms Thomas’ sheds or onto garden areas where people relax. The risk of the trees causing damage or injury is sufficient to warrant taking action.
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The Trees Act gives me no jurisdiction over fire. The risk of fire spreading from the trees to dwellings does not allow me to make orders to interfere with the trees. This is consistent with the findings of Fakes C at [86] in Freeman v Dillon [2012] NSWLEC 1057.
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I am not swayed by the respondent’s reasons for keeping the trees rather than removing them. While appreciating beauty might be subjective, it is difficult for me to find the beauty in a row of dead cypress trees in a suburban back garden. These trees provide no important habitat. Birds that sit in these trees will easily find other trees nearby. There are no nests or hollows in these trees. Naturally, all trees provide habitat – there will be insects, lizards, spiders and more living in these trees, and birds would feed on those. However, any habitat to be lost here can be easily replaced. In fact, the respondent’s submissions arguing the importance of the trees’ amenity and habitat values leads me to make orders for replanting so that any loss of these values to the respondent’s property is soon regained.
Orders
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The respondent asked to be given 90 days if the trees are to be removed, when I proposed 30 days. I have extended the time period for tree removal slightly to accommodate his needs, but am reluctant to allow more than 45 days considering the state of T1.
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As a result of the foregoing, the orders of the Court are:
Within 45 days of the date of these orders, the respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances to remove the nine cypress trees in his back garden to no more than one metre above ground level. The works are to be done in accordance with the guidelines of the WorkCover NSW Code of Practice for the Amenity Tree Industry.
The works are to be done from within the respondent’s property, but the applicant is to allow access to her property on reasonable notice, during reasonable hours of the day, for the purpose of cleaning up debris.
Within 60 days of the date of these orders the respondent is to plant three trees that are native to NSW and that can grow to at least 10 metres in height. The trees are to be planted at least one metre from any boundary.
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D Galwey
Acting Commissioner of the Court
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Decision last updated: 15 March 2019
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