Tobola v Zabkiewicz

[2016] NSWLEC 1503

Land and Environment Court

New South Wales

Medium Neutral Citation:	Tobola v Zabkiewicz & anor [2016] NSWLEC 1503
Hearing dates:	26 October 2016
Date of orders:	26 October 2016
Decision date:	26 October 2016
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is upheld. See orders at paragraph 11.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS); risk of damage or injury; orders to remove one tree.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	Slawomir Tobola (Applicant) Krystyna Zabkiewicz (First Respondent) James Thorp (Second Respondent)
Representation:	Slawomir Tobola, litigant in person (Applicant) Krystyna Zabkiewicz and James Thorp, litigants in person (Respondents)
File Number(s):	188501 of 2016

Judgment

Background

1. Mr Tobola (‘the applicant’) has lived with his family in their Hunters Hill property since 2012. Their dwelling was newly constructed. The neighbourhood landscape is dominated by tall native trees. Two of these trees grow on the neighbouring property owned by Ms Zabkiewicz and Mr Thorp (‘the respondents’), who have lived there since 2001. The trees, two native Eucalypts, are close to the common boundary dividing the two properties. As a result of competition for light, both trees have grown with a lean. The land slopes steeply down from the rear to the front of the properties. The ground is rocky.

2. Mr Tobola is concerned that the trees threaten the safety of his family and his property. He has applied to the Court pursuant to the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’) seeking orders for removal of these two trees.

3. The respondents do not wish to remove the trees, valuing their contribution to the local landscape, the habitat they provide and their other environmental values.

The trees

4. No arboricultural evidence was obtained by the parties, so I bring my own experience to assessing the trees’ condition.

Tree 1

5. Tree 1 is in the rear section of the property. It leans toward and over the applicant’s property, with a significant part of its canopy above part of his dwelling, where the main bedroom is, and over private open space, where there is some outdoor seating.

6. The tree is between 15 and 20 metres tall. It appears healthy, without obvious structural defects. Deadwood was removed from its crown by an arborist in May last year. Its crown is co-dominant with other nearby trees, several of which are larger, so that it receives some protection from winds.

7. The jurisdictional test at s 10(2) of the Trees Act states that, before I can make any orders, I must be 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. Although the crown of Tree 1 overhangs the applicant’s property and dwelling, there is nothing to indicate that branch failure, or indeed failure of the entire tree, is likely within the near future, a period generally regarded by the Court as 12 months since Yang v Scerri [2007] NSWLEC 592. The applicant referred to gusty winds and other trees that recently failed elsewhere in NSW, but the level of satisfaction required by s 10(2) must be more than a theoretical possibility that a tree will fail.

Tree 2

8. Tree 2 is in the front part of the respondents’ property and partly overhangs the front section of the applicant’s dwelling. Its crown appears relatively healthy. Its stem and crown lean uphill between the two dwellings. It is between 15 and 20 metres tall. Its crown is separate from other trees, so it receives little protection from the wind.

9. At the base of the stem is a large wound that is likely to be a result of physical damage some years ago. There is a complete lack of cambium around the stem for approximately half its girth (shown in the photograph below). Roots below this wound therefore receive no photosynthates and would have become inactive. They are partly on the tension side of the tree, away from the direction of its lean. This increases the risk of failure. Damage is sufficient that I am satisfied that failure is likely in the foreseeable future. Such failure would inevitably cause damage to both properties, and may cause injury. Therefore this tree satisfies the jurisdictional test at s 10(2) and orders can be made as the Court sees fit.

Basal wound on Tree 2

10. If pruning could sufficiently reduce the risk, this would be desirable. The tree contributes to environmental values and to soil stability on this sloping land. However I am of the view that pruning cannot reduce the risk sufficiently and the tree requires removal.

Orders

11. Therefore the Court orders that:

1. Within 120 days of the date of these orders the respondents are to engage a suitably qualified arborist with all appropriate insurances to remove Tree 2 to no more than one metre above ground level.

2. Works are to be done in accordance with the NSW Code of practice for the amenity tree industry. 

3. The respondents are to give the applicant 7 days’ notice of the works.

4. The applicant is to allow any access required for the works during reasonable hours of the day.

____________________________

D Galwey

Acting Commissioner of the Court

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