Walmsley v Grant

[2009] NSWLEC 1330

Land and Environment Court

of New South Wales

CITATION:

Walmsley v Grant [2009] NSWLEC 1330

PARTIES:

APPLICANT
Graeme Walmsley

RESPONDENT
Gary Grant

FILE NUMBER(S):

20475 of 2009

CORAM:

Thyer AC

KEY ISSUES:

TREES (NEIGHBOURS) :- tree removal; damage to property and risk of injury to person(s)

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

CASES CITED:

Prestige Wholesale P/L v City of Burnside [2005] SAERDC 12
Yang v Scerri [2007] NSWLEC 592

DATES OF HEARING:

16 September 2009

EX TEMPORE JUDGMENT DATE:

16 September 2009

LEGAL REPRESENTATIVES:

APPLICANT
Graeme Walmsley (litigant in person)

RESPONDENT
Gary Grant (litigant in person)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Thyer AC

16 September 2009

20475 of 2009

Graeme Walmsley v Gary Grant

JUDGMENT

1 COMMISSIONER: A mature Lemon Scented Gum (the tree) is growing in the backyard of 85 Victor Avenue, Picnic Point (the property) about 0.5 m from the back fence. Mr Grant, the owner of the property says the tree was about 15 to 20 years old when he bought the property in 1981.

2 The tree is now about 15 m tall, it has a well balanced crown, and branches on its eastern side overhang the swimming pool, spa and pavilion in the backyard of the adjoining land to the east.

3 A letter to Mr Grant from Bankstown City Council regarding the tree, dated 10 August 2009, states in part:

The large Eucalypt at the rear of the property has been inspected by Council on two previous occasions. At the time of inspection in June 2008 the tree had suffered severe dieback and decline which appeared to have been due to the presence of herbicide or other chemicals which had been administered around the lower trunk through drill holes in the base.
At the time of the inspection on Thursday 6th August 2009 the tree had recovered. The crown was full and healthy with minor deadwood and regrowth forming in the crown. The Eucalypt has had recent thinning in the crown and Council would allow further low branch removal of some minor limbs identified during the inspection (over the neighbouring property).

4 Mr Walmsley is the owner of 1 Apex Avenue, Picnic Point, the adjoining land to the east. He purchased the land with an existing older style house in 1987, and built the swimming pool under the tree in 1991. In 2001 he subdivided the land, building a new house closer to the street and retaining a narrow backyard with the swimming pool. He fears that dead limbs in the tree may fail, that the tree may cause structural damage to his pool, spa, pavilion and house, and to the sewer main on the eastern side of the pool, and the colorbond fencing. He also fears that serious injury or death could be caused if any tree limb fell in the area of the pool, spa and pavilion. He makes an application under the Trees (Disputes Between Neighbours) Act 2006 (the Act) to rectify or prevent property damage, and to prevent risk of injury to people. He seeks orders for removal of the tree.

5 Mr Grant seeks alternative orders that the tree be retained as a specimen in good health. He has provided two arboricultural reports: the first dated 22 July 2009, by Mr Laverty who is an AQF Level 5 arborist; the second dated 29 July 2009, by Mr Pakes who is an AQF Level 3 arborist.

6 The parties agree that the dividing fence between the properties is on the common boundary. On that basis, the trunk of the tree is entirely on the respondent’s property meeting s 4(3) and s 7 of the Act, and as I find that the tree is a “tree” within the meaning of that term in s 3(1) of the Act, there is an application that the Court may determine.

7 When assessing an application under the Act, the Court must be satisfied that one or more of the four tests in s 10(2) (a) and (b) of the Act are met by the tree before making an order regarding that tree. These tests are:

Has the tree caused damage to the applicant's property on the land?
Is the tree now causing damage to the applicant's property on the land?
Is the tree likely in the near future to cause damage to the applicant's property on the land?
Is the tree likely to cause injury to any person?

8 Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of:

Is the damage or risk sufficiently serious to warrant the Court intervening?
If so, what should the Court order?
Who should pay to carry out those orders?

9 Further, before determining an application, the Court is to consider the matters in s 12 of the Act.

The tree

10 The tree is a Lemon Scented Gum (Corymbia citriodora). Mr Laverty inspected the tree in September 2008 when it was showing a notable amount of dieback in the canopy. He recommended remedial work at that time which was carried out. He states that his inspection in July 2009 confirmed that the canopy of the tree had recovered quite well, and he suggested that the lesser scale deadwood in the upper canopy should be pruned out. In his view the tree can be retained as a reasonable quality specimen, and though he did not do a full-scale visual inspection, he states there were no other faults he could see at the time that would require further work.

11 Mr Pakes pruned dead wood out of the tree in January 2009 and July 2009, after Mr Laverty’s inspections. In July 2009 he finds the tree to be of good health.

12 My assessment of the tree from observation at the hearing, is generally in accord with the Council and the two arborists. The tree has a full crown and appears healthy, but some of the smaller high branches are bare with new shoots visible along their length. I did not observe any signs of structural weakness that would indicate that live branch failure or failure of the whole tree was likely. There is some minor deadwood in the crown.

Damage and injury

13 Mr Walmsley says the tree has not caused, and is not now causing damage to his property. Thus the tree does not meet the first two tests in s 10(2)(a) of the Act. However, he says that dead branches have fallen though not since the recent pruning in July, and that two live branches, 20 mm and 30 mm in diameter fell in the last 3 months.

14 Mr Grant says the live branches may have been broken during the recent pruning work. He says that a live branch broke out of his side of the tree after Mr Walmsley’s in-ground swimming pool was built in 1991, and he thinks that pool construction was the cause of that branch failure. Mr Grant says that the tree is a variety of Lemon scented Gum that is not subject to failure of large live branches. In evidence he submitted the history of the tree, and part of the Judgment in Prestige Wholesale P/L v City of Burnside[2005] SAERDC 12 where at paragraph 17 Trenorden J states:

The experts acknowledge that not all trees of the species Corymbia citriodora have the same characteristics with respect to the propensity for branchlet, branch and limb drop. …….
In the end, we have got a tree that, because of general lemon-scented gum characteristics, but also because of the constitution peculiar to it, is likely to drop moderate to semi-moderate branches or moderate to slightly less than moderate branches from time to time, regardless of the weather. ……
But it’s not the extreme end of the scale and nor is it at the other end of the scale.

15 My own observation over the years is that the characteristics of individual Corymbia citriodora specimens do vary with regard to live branch drop, with some trees not dropping any live branches. Based on the history and my observation of Mr Grant’s tree, I find it is towards the end of the scale where it is not likely to drop live branches and larger limbs. On that basis with regard to live branch failure the tree is not likely to cause damage to Mr Walmsley’s property in the future, so it does not meet the third test in s 10(2)(a) of the Act, and it is not likely to cause injury to any person, so it does not meet the test in s 10(2)(b) of the Act.

16 No evidence has been provided that roots of the tree are likely in the near future to cause structural damage to Mr Walmsley’s pool, spa, pavilion, house, colorbond fencing, or to the sewer main on the eastern side of the pool, thus the third test in s 10(2)(a) of the Act is not met in that regard. Further, with regard to the sewer, I understand it is a sewer main owned by Sydney Water, so damage to it would not be damage to Mr Walmsley’s property on the land.

17 Mr Walmsley says that small dead branches fall from the tree, but as found earlier, no damage has occurred in the past. I observed that there is some minor deadwood in the crown, and there are some high branches that may fully recover from poisoning or may die off. I note that Mr Grant has actively managed the tree to promote its health and to remove dead wood since the tree was poisoned. Based on these circumstances, I find that damage from falling dead branches is not likely in the near future, that being a period of about 12 months as discussed by the Court in Yang v Scerri [2007]NSWLEC 592 and the third test in s 10(2)(a) of the Act is not met in this regard.

18 The crown of the tree is located over Mr Walmsley’s small backyard which contains a swimming pool, spa and pavilion, and those areas would normally receive a high level of use from his family and guests, particularly in summer. On that basis, I find dead branches falling from the tree are likely to be a risk of injury to persons. That risk meets the test in s 10(2)(b) of the Act.

s 12 Considerations

19 Addressing the relevant matters in s 12 of the Act:

This is a large tree located about 0 . 5 m of the common boundary.

The tree is protected by the Bankstown City Council Tree Preservation Order. A permit dated 24 June 2008 was issued to remove the tree due to its poor condition after poisoning, but that permit has been rescinded. Council’s letter dated 10 August 2009 states “Council would allow further low branch removal of some minor limbs identified during the inspection (over the neighbouring property).”

No evidence has been provided.

Mr Grant says that lorikeets, tawny frogmouth owl and possums use the tree.

The tree is visible from surrounding streets and is a feature in Mr Grant’s backyard. Mr Walmsley says that his own backyard would not look as good without the tree.

The tree would assist in reduction of summer temperatures nearby, would help to lift strong winds above house level, would be a net store of carbon, would trap some chemical and particulate air pollution, and would reduce stormwater runoff.

No evidence provided.

(i) Contribution other than the tree, Act or omission by applicant.
No damage, not applicable.

Mr Grant has obtained professional advice and promoted the health of the tree, which has reduced the risk branch and whole tree failure. He has also had dead wood pruned out on two occasions in the last year.

(i) Contribution other than the tree, Act or omission by applicant
No other contribution.

As for (h)(ii) above.

The Court has not been provided with any evidence of who poisoned the tree, an act which increased the amount of deadwood in the tree.
Mr Walmsley can, with Council consent, prune some of the tree overhanging his property.

Conclusion

20 I find that the tree should be retained on the basis of its current health and the benefits that it provides.

21 I find that pruning of dead branches should be ordered to take place before the start of school holidays in December 2009, to prevent the likely risk of injury to people in Mr Walmsley’s backyard from falling dead branches during the summer of 2009 - 2010.

Orders

22 The application is upheld in part and the Court makes the following Orders:

1. These orders apply to 85 Victor Avenue, Picnic Point;
2. All deadwood with a diameter greater than 20 mm shall be pruned and removed from the crown of the tree by 16 December 2009, at Mr Grant’s cost, by an AQF Level 3 arborist with suitable insurances and in accordance with the Australian Standard AS 4373-2007 Pruning of Amenity Trees , and the NSW WorkCover Code of Practice for the Amenity Tree Industry (1998) ;
3. Mr Walmsley shall grant access over his property to carry out the pruning and removal of dead branches, at reasonable times and on reasonable notice.

___________________

Peter Thyer
Acting Commissioner of the Court

The formal orders may be obtained from the Court’s registry upon payment of a fee. Details are available on the Court’s web site at