Walls v Ponsford

[2010] NSWLEC 1031

Land and Environment Court

of New South Wales

CITATION:	Walls V Ponsford [2010] NSWLEC 1031
PARTIES:	APPLICANT Peter Walls RESPONDENT Derek Ponsford
FILE NUMBER(S):	20864 of 2009
CORAM:	Fakes C
KEY ISSUES:	TREES (NEIGHBOURS) :- Damage to property Injury to persons Orders for pruning
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
CASES CITED:	Yang v Scerri [2007] NSWLEC 592,
DATES OF HEARING:	16/02/2010
DATE OF JUDGMENT:	16 February 2010
EX TEMPORE JUDGMENT DATE:	16 February 2010
LEGAL REPRESENTATIVES:	APPLICANT Peter Walls (litigant in person) RESPONDENT Derek Ponsford (litigant in person)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C

16 February 2010

20864 of 2009 Walls v Ponsford

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 s7 of the Trees (Disputes Between Neighbours) Act 2006 made by Mr Walls of 19 Rae Street Birmingham Gardens (Newcastle City Council local government area) against the owner of a eucalypt growing at 21 Rae Street. The owner of that property is Mr Ponsford.

2 The applicant is seeking the removal of the tree as he contends that it poses a risk of damage to his property and a risk of injury to people. He is concerned that should the tree fall, the consequences would be catastrophic as it could reach the rear deck of the house.

3 The applicant’s concerns arise from advice from two tree companies. One opinion was obtained from a local business when they were called in to quote on other work within Mr Wall’s garden. The other was unsolicited advice from a company from outside the area door knocking for work. The arboricultural qualifications of either person who offered their opinion on the tree are unknown and nothing was provided in writing.

4 The tree is a mature Ironbark (probably Eucalyptus sideroxylon) growing within a metre of the rear side boundary fence between the two properties. It is approximately 14m tall and a significant percentage of the tree overhangs the applicant’s property. There is a garden shed and a path beneath the canopy however the tree does not overhang the clothesline, the house or the majority of the grassed, terraced back yard.

5 The tree appears to have been lopped at a height of about 6-7m many years ago. There is some included bark between two branches arising from the lopped branch closest to the applicant’s property but this appears to be quite stable. The tree has more than 10% dead wood, some of which overhangs the applicant’s property.

6 From the respondent’s side, there are no signs of instability or changes in the ground at the base of the tree that would indicate any likelihood of whole tree failure. There is a substantial amount of dead wood in the centre of the tree as well as dead stubs. There is the fruiting body of a decay fungus at the base of one of those dead stubs.

7 Mr Ponsford has owned his property for about three years and it is currently tenanted. Mr Walls purchased his property in September 2009. Soon after he moved in, Mr Walls contacted Mr Ponsford’s agent about the tree, as Mr Ponsford was overseas at the time.

8 Both parties stated that they contacted Newcastle City Council and it seems that they received conflicting advice as to what was permissible.

9 After what appears to be misleading, and in retrospect, mischievous, advice from the tree company door knocking for work, Mr Ponsford engaged them to lop the tree on the advice that Mr Walls would pay for work on his side of the tree.

10 When the question of payment was raised, Mr Walls stated that this was not the case and works then stopped. The only work carried out was the lopping of one limb on Mr Ponsford’s side.

11 Under s10(2) of the Act, the Court must not make an order unless it is satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property or is a risk of injury to persons. In, a rule of thumb, which I consider is also appropriate here, puts the near future as being a period of 12 months from the date of the determination. Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of whether the damage or risk is sufficiently serious to warrant the intervention of the Court, and if so what should be ordered and who should pay.

12 The Court must also consider a number of matters under s 12 of the Act. The relevant clauses in this case are:

(a) The tree is wholly located on the respondent’s property.
(d) The tree is likely to contribute to the local ecosystem and to biodiversity.
(e) It contributes to the scenic value of the land on which it is situated and forms part of the canopy in the locality. It affords some privacy to both the applicant’s and the respondent’s properties.
(f) It can be seen from the street and therefore has some value to public amenity.
(h&i)(ii) The respondent has taken steps to address the matter however, unfortunately, the works undertaken were not to the Australian Standard for the pruning of amenity trees.

13 Returning to the facts of the matter and to s 10(2), the tree does have a substantial amount of dead wood that does pose a risk of damage to property in the near future and could cause injury to persons. There was evidence of fallen dead wood near the applicant’s garden shed and path. The risk of injury or damage from the failure of any living parts of the tree is low and not sufficient to order the removal of the tree.

14 Therefore, the Orders of the Court are:

1. The application to remove the tree is dismissed.
2. The respondent shall engage and pay for an AQF level 3 arborist with current and appropriate insurances to remove all dead wood from the tree greater than or equal to 30mm in diameter. This includes the dead stubs.
3. This work is to be carried out in accordance with AS4373:2007 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry .
4. The work is to be completed within 30 days of the date of these orders.
5. The applicant is to provide all reasonable access for the works to be undertaken in a safe and efficient manner.
6. The respondent is to ensure that the tenants and the applicants receive at least 3 working days notice of the works.

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