Wilk & Bonett v Magee

[2010] NSWLEC 1070

Land and Environment Court

of New South Wales

CITATION:

Wilk & Bonett v Magee [2010] NSWLEC 1070

PARTIES:

APPLICANTS
M Wilk
K Bonett

RESPONDENT
P Magee

FILE NUMBER(S):

20029 of 2010

CORAM:

Fakes C

KEY ISSUES:

TREES (NEIGHBOURS) :- Injury to persons
Damage to property
Tree removal ordered
Replanting

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

19/03/10

 
DATE OF JUDGMENT: 

19 March 2010

EX TEMPORE JUDGMENT DATE:

19 March 2010

LEGAL REPRESENTATIVES:

M Wilk (litigant in person)
K Bonett (litigant in person)

D. Gum (agent)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C

19 March 2010

20029 of 2010 Wilk & Bonett v Magee

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

JUDGMENT

1 COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by Mr Wilk and Ms Bonett of 101 Hereford Street Forest Lodge against the owner of a tree growing at the rear of 101A Hereford Street. The owner of that property is Mr Magee. Mr Magee was represented at the on-site hearing by Mr Gum of Garry White First National Real Estate Agents.

2 The applicants are seeking the removal of the tree as they contend that it poses a risk of injury to persons and may cause damage to their property.

3 The tree is a mature Juglans nigra (Black Walnut) growing near the rear fence of the respondent’s property. The tree has been the subject of several tree inspections carried out by various arborists and variously identified by them as Ailanthus altissima (Tree of Heaven), Pistacia chinensis (Chinese Pistachio), Toona ciliata (Red Cedar) and Juglans sp (Walnut). I confirmed the tree as being a Black Walnut due to the characteristics of the leaves and the fruit.

4 The applicants’ concerns were raised when a wound at the base of the trunk was exposed during the removal and replacement of the respondent’s rear fence in October 2008. From the email records tendered as evidence, it appears that the tree contained a significant amount of dead wood. It was inspected by a Tree Management Officer (TMO) from the City of Sydney on or about 17.10.08 and again on 08.01.09. The applicants state that the advice from the council officer was that the tree was in poor condition and that the amount of dead wood in the canopy had increased between inspections. The indication was the council would most likely approve an application for its removal.

5 On 12.03.09, on behalf of the respondent, the tree was pruned of dead wood. However, after strong winds, the applicants were concerned with the creaking of the tree and someone, identified only as Andrew from Action Tree Management was engaged by the applicants to inspect the tree. He stated that the tree was very dangerous and should be removed as soon as possible and noted that it should be referred to council as urgent. The applicants contacted the council’s TMO who advised them that she would approve the removal but the application had to be made by the tree owner.

6 In December 2009 the applicants engaged two other tree companies to inspect and quote on the tree. Both agreed that the tree should be removed. The applicants stated that they would replace the tree.

7 In January 2010, the respondent engaged an arborist to inspect and report on the tree. In that report, Mr D Tudor Jones states:

The area of dead wood has a crack in the upper portion and decay in the lower portion, as well as signs of borer and other insect activity. However, I believe the effect of this dead wood on the structural integrity of the tree is minimal. In most mature trees the heartwood (Inner layers) dies off and becomes lignified, while the sapwood (outer layers of live tissue) continues to sustain the growth of the tree. In other words, the core of a mature tree can in fact be dead or rotten, while the tree itself remains in good health and continues to grow. …This tree, like any other, has potential for failure but I believe it poses no greater risk than other trees in the area.

8 In February 2010, the respondent’s arborist returned and made a small horizontal scarf cut in the dead section of trunk at about 2m above ground. This was evidently to relieve the creaking noise. This is an unusual practice.

9 When I inspected the tree at the on-site hearing, it was clear that no-one had undertaken any more than a cursory look at the base of the tree. I was able to remove, by hand, a large area of decayed and degraded wood from the base of the tree. In my opinion, Mr TudorJones’ report underestimates the extent of the damage and the probable consequences. His report is true in part but an over-simplification. Apart from the major damage at the base of the tree, there is also a crack and an inclusion at about 4m above ground. The dead section of stem extends from the ground to at least 3m up the tree.

10 The majority of the canopy is growing in a north-easterly direction and overhangs the applicants’ property and a rear lane. The lane is used for pedestrian and vehicular access to several other properties. The applicants stated that the strong winds come from the south-west and therefore the combination of weight of canopy, basal damage and wind direction exacerbates their concerns.

11 Under s 10(2) the Court cannot 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 applicants property or is likely to cause injury to any person.

12 The Court must also consider a number of matters under s 12 of the Act. In this case, the tree is wholly located on the respondent’s property and does make a contribution to the scenic value of the land on which it is growing. The applicants value its shade and the wildlife it brings and are prepared to pay for a replacement tree. The tree has limited value to public amenity given its location however, it does contribute to the overall canopy cover of the area. Both parties have engaged arborists to inspect the tree.

13 However, after viewing the evidence I am of the opinion that the structural condition of this tree will not improve, the defects are significant and the tree is likely to cause injury or damage to the applicants’ property. Therefore as two of the tests under s 10(2) are satisfied, the jurisdiction is enlivened and the Court may make an order.

14 The Orders of the Court are:

1. The application to remove the tree is upheld.
2. The respondent is to engage and pay for an AQF level 3 arborist to remove the tree and to grind the stump to a depth of 200 mm below ground.
3. The works are to be undertaken in accordance with the WorkCover Code of Practice for the Amenity Tree Industry .
4. The applicants are to provide all reasonable access for these works to proceed in a safe and efficient manner.
5. The applicants and the respondent’s tenants are to be given at least 3 working days notice of the commencement of the works.
6. The works are to be completed within 40 days of the date of these orders.
7. The applicants are to purchase a tree, up to 25 litre size, of the respondent’s choice to be planted by the respondent or their agent. The species should be generally available from nurseries. The respondent is to advise the applicants of this choice within 60 days of the date of the orders or this order lapses. Once notified, the applicants have 21 days from the date of the notification to purchase the tree and deliver it to the respondent or their real estate agent for planting.

______________________________
J Fakes
Commissioner of the Court
ljr