Trigas v Jennings
[2022] NSWLEC 1333
•22 June 2022
Land and Environment Court
New South Wales
Medium Neutral Citation: Trigas v Jennings [2022] NSWLEC 1333 Hearing dates: 22 June 2022 Date of orders: 22 June 2022 Decision date: 22 June 2022 Jurisdiction: Class 2 Before: Galwey AC Decision: See orders at [22].
Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – risk of damage to property – risk of injury – orders for removal of one tree and pruning of one tree – apportionment of pruning costs
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006, Pt 2 ss 6, 7, 10, 12
Cases Cited: Yang v Scerri [2007] NSWLEC 592
Texts Cited: Safe Work Australia, ‘Guide to managing risks of tree trimming and removal work’, 2016
Category: Principal judgment Parties: Grigorios Trigas (First Applicant)
Anastasia Trigas (Second Applicant)
Jean Jennings (Respondent)Representation: Counsel:
Solicitors:
G Trigas (Self-represented) (First Applicant)
A Trigas (Self-represented) (Second Applicant)
P Mitchell (Solicitor) (Respondent)
Peter Mitchell Lawyers (Respondent)
File Number(s): 2022/83271 Publication restriction: No
Judgment
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
Background to the application
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Acting Commissioner: Two trees, both eucalypts, overhang the rear garden of the Padstow property where Grigorios Trigas and his daughter Anastasia Grigorios (the Applicants) live. Over the years, branches and other debris have dropped from the trees. Mr Trigas and Ms Trigas have applied to the Court, pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), seeking orders for the removal of both trees or, failing that, the removal of one tree and the removal of all parts of the other tree that overhang their property.
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Jean Jennings (the Respondent) owns the neighbouring property on which the trees have grown. The Applicants and Mrs Jennings have discussed the trees, sometimes through Mrs Jennings’ son, Mark Jennings. Mrs Jennings was only willing to prune the trees, so they were unable to find an outcome that would satisfy both sides.
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In September 2021, Mark Jennings applied to Canterbury Bankstown City Council (Council) for consent to prune one tree and remove the other. In October 2021 the Jennings received a permit from Council that, somewhat unusually, refused consent to prune the first tree but granted consent to remove both trees.
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The hearing took place onsite this afternoon. The Applicants provided no arboricultural evidence. The Respondent, represented by her solicitor Mr Mitchell, provided a report in letter format from Joshua Baber, an AQF level 5 arborist, dated 16 April 2022. Having made observations of both trees during the onsite hearing, I also rely on my own arboricultural expertise.
The Applicants made a reasonable effort
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The Trees Act, at s 10(1), requires the Court to be satisfied that the Applicants have made a reasonable effort to reach agreement with the Respondent before the Court can make orders. Mr Trigas and his daughter have clearly made an effort to reach the outcome they think is reasonable, being the removal of both trees. I am satisfied that the Applicant made a reasonable effort.
Both trees are likely to cause damage to the Applicants’ property
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The Applicants do not claim that the trees have caused, or are causing, damage. Therefore, according to s 10(2) of the Trees Act, the Court can only make orders for each tree in these proceedings if I find that the tree is likely to cause damage to the Applicants’ property in the near future, or is likely to cause injury to any person. As per the long-held principle in Yang v Scerri [2007] NSWLEC 592, I regard the near future to be a period of 12 months from the present.
Tree 1
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The largest tree (T1) is a Eucalyptus longifolia (Woollybutt) approximately 20 metres tall, with a crown spread of roughly 20 metres and a stem diameter greater than a metre. It appears healthy, with typical foliage density throughout its crown. Several unions between primary branches, and some between secondary branches, are narrow and contain included bark. Long branches spread significantly over the Applicants’ property. No other significant defects were observed. Mr Baber, who has pruned the tree, was of the opinion that branch failure was improbable within the next 12 months.
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The Applicants are concerned by the size of the tree. Mr Trigas says he has not used his vegetable garden at the back of his property because he needs to walk beneath this tree to get there and he is afraid branches will fall on him. Deadwood and other debris have fallen – small amounts of these were present on his lawn.
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The Respondent relies on Mr Baber’s assessment that the tree is healthy and sound. Mrs Jennings engaged Mr Baber to prune the tree in November 2011. Some reduction pruning over the Applicants’ property was done, but the Applicants refused permission for further pruning when they were told it would not be pruned right back to the common boundary as they wished.
Tree 2
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Further toward the back of the property is a smaller Eucalyptus sideroxylon (Red Ironbark) (T2). Its stem kinks a few metres above ground level and heads over the common boundary, so that almost the entirety of its crown is above the Applicants’ land. At the kink in the stem is a wound, on its tension side, and below this another wound, on its compression side.
Findings
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Conditions of concern in T1 are the narrow forks joining primary branches, and the horizontal reach of some of these branches beyond their unions, especially above the Applicants’ property. Contrary to Mr Baber’s opinion, I find that the likelihood of failure of some of these branches is at least possible in the next 12 months, even probable. I am not suggesting Mr Baber is wrong – predicting the likelihood of failure of tree parts is usually the most difficult and potentially inaccurate element of tree risk assessment, more opinion than fact.
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Given that Mr Trigas avoids walking beneath the tree, injury is unlikely to result, but large branch failure would damage the fence and his shed. The risk can be reduced by carrying out some pruning that would allow the tree to be retained and to remain viable. Orders will be made to reduce the crown over the Applicants’ property. I have taken photographs to accompany the orders to provide guidance as to the extent of pruning intended by the orders.
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I find the defects in the stem of T2 are severe enough that the stem might fail in the near future. If that happened the fence would be damaged. Due to the form of this tree, pruning cannot sufficiently mitigate the risk.
Considering matters at s 12
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I have considered the relevant matters at s 12 of the Trees Act. Both trees are close to the common boundary; T1 overhangs the boundary while T2’s crown is almost entirely above the Applicant’s property. Both trees contribute to public amenity and to the landscape value of Mrs Jennings’ property, particularly T1 due to its size. They provide habitat and environmental value.
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Both trees would require Council consent to be pruned or removed. Mark Jennings applied to prune T1 and remove T2. Council’s determination, a copy of which is within Exhibit A, refused pruning of T1 but consented to its removal without explanation. In fact, the only comments regarding the trees in Council’s determination were:
“At the time of inspection the trees were assessed as being in good health and condition, and suitable for the site. The reasons provided in your application do not justify the pruning of the tree at this stage, therefore permission to prune the following tree [T1] has been refused.”
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Council’s determination then granted permission to remove both T1 and T2, without providing any reasons.
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Due to s 6(3) of the Trees Act, Council’s consent is not required for the works ordered below.
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Pruning T1 can minimise the risk of branch failure. Some large branch removal is required, but the tree should remain viable for many more years. Pruning T1 right back to the boundary is not required for mitigating risk; and doing so would adversely affect the tree’s form and retention value.
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On the other hand, the risk of damage from T2 cannot be sufficiently reduced by pruning, so it must be removed.
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The Applicants denied access to Mr Baber to complete pruning works in November 2021. It is not clear how much pruning Mr Baber intended to undertake. Perhaps his proposed pruning was similar to the orders below, or possibly he would have pruned less. Either way, there will now be the additional cost of bringing equipment to the site and setting up – costs that might have been avoided had the Applicants allowed access to Mr Baber. Ms Trigas submitted that she wanted more removed from the tree than Mr Baber intended. However, had she allowed access and found the result not to her satisfaction, this would not have prevented the Applicants commencing these proceedings to seek orders for further pruning. They had nothing to lose by allowing the pruning to proceed. The Trigas’ lack of cooperation will lead to additional expense, which I estimate (without any further evidence available to the Court) as approximately 20% of the costs of further pruning works.
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Council’s earlier tree removal consent included a condition requiring the Respondent to plant six trees, apparently on a three-for-one basis, as the consent was for removing both trees. Therefore, to compensate for the loss of T2, an order will be made to replant three trees.
Orders
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As a result of the foregoing, the Court orders that:
The application is granted, to the extent of the orders below.
The Respondent is to engage and pay for a suitably qualified arborist (minimum AQF level 3) with all appropriate insurances to remove T2 to no more than one metre above ground level within 60 days of the date of these orders. Tree removal work is to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.
The Respondent is to engage and pay for a suitably qualified arborist (minimum AQF level 3) with all appropriate insurances to prune T1 to reduce its crown over the Applicants’ property as per the attached photographs (see Annexure A), and to remove deadwood and any other hazardous branches identified during the works, within 60 days of the date of these orders. Tree pruning work is to be done in accordance with AS 4373 ‘Pruning amenity trees’ and the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.
The Respondent is to provide the Applicants with at least 2 days’ notice of the works.
The Applicants are to provide any access required to complete the works during reasonable hours of the day.
Within 30 days of receiving a copy of a receipted paid invoice for the works ordered above, itemised for each tree, the Applicants are to pay the Respondent 20% of the amount for pruning T1. If no such invoice is received within 90 days of the date of these orders, this order lapses.
Within 90 days of the date of these orders the Respondent is to plant three native trees on their property at least 2 metres from any boundary.
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D Galwey
Acting Commissioner of the Court
Annexure A (252632, pdf)
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Decision last updated: 27 June 2022
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