Woo v Atkinson

[2010] NSWLEC 1278

Land and Environment Court

of New South Wales

CITATION:

Woo v Atkinson [2010] NSWLEC 1278

PARTIES:

APPLICANT
Cho Yiu Woo

RESPONDENT
John Atkinson

FILE NUMBER(S):

20531 of 2010

CORAM:

Brown C - Galwey AC

KEY ISSUES:

TREES (NEIGHBOURS) :- removal of tree; pruning of tree; damage to property.

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

CASES CITED:

Barker v Kyriakides [2007] NSWLEC 292
Yang v Scerri [2007] NSWLEC 592

DATES OF HEARING:

8 October 2010

EX TEMPORE JUDGMENT DATE:

8 October 2010

LEGAL REPRESENTATIVES:

APPLICANT
Cho Yiu Woo (Litigant in person)

RESPONDENT
John Atkinson (Litigant in person)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C and Galwey AC

8 October 2010

20531 of 2010 Chio Yiu Woo - v John Atkinson

This determination was given extemporaneously
and has been edited prior to publication


JUDGMENT

: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Shepherd Street, Chippendale against the owner of a tree growing on the adjoining property.

The application

2 Mr Woo is seeking orders that require the removal or significant pruning of a Sydney Blue Gum (Eucalyptus saligna) that overhangs his property on the basis that:

• limbs have fallen from the tree, causing damage to a tarpaulin, the roof of a shed, and a PVC vent cap;
• other limbs are likely to fall and cause damage to property or injury to someone;
• leaves and other material falling from the tree block a stormwater drain, resulting in a risk of flooding to the house;
• leaves and other material falling from the tree create a mess in the rear courtyard, creating a slippery hazardous surface and requiring cleaning up; and
• leaves and other material falling from the tree block the gutters necessitating regular clearing.

3 The application did not make any claim for compensation.

4 Mr Atkinson states that the tree should be retained as it has not caused any significant damage. He states that he enjoys the amenity provided by the tree and the tree was a reason why he purchased the property around 11 years ago.

The framework for consideration

5 Section 9(1) provides that the Court “may make orders as it thinks fit to remedy, restrain or prevent damage to property, or to prevent injury to any person, as a consequence of the tree the subject of the application concerned.”

6 Under s 10(2) of the Act, the Court must not make an order unless it is satisfied that the tree concerned “has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property” (s 10(2)(a)), or “is likely to cause injury to any person” (s 10(2)(b)).

7 Clause 12 provides a range of matters that are to be considered by the Court in determining an application.

8 As Mr Woo is concerned about future damage from falling limbs, the Court has consistently applied the guidance direction published in Yang v Scerri [2007] NSWLEC 592, which puts the near future as being a period of 12 months from the date of the determination.

9 Mr Woo is also concerned about leaf drop and this is addressed in Barker v Kyriakides [2007] NSWLEC 292 where it was found that the dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees will not ordinarily provide the basis for ordering the removal of, or intervention with, an urban tree. Some level of external housekeeping and maintenance is to be expected for people who live in leafy urban environments and who benefit from the environmental and aesthetic services that trees provide.

The site view

10 The tree was inspected from both properties. It is a mature Sydney Blue Gum around 25m tall. It is located entirely within the respondent’s property. The tree was already a large mature tree when the applicant bought his property around 10 years ago. The tree is in good health and does not appear to have any major structural defects. Its broadly spreading canopy extends over several properties. There is some minor deadwood in the crown, up to approximately 30mm in diameter. Two or three dead branches overhang Mr Woo’s property.

11 Mr Woo showed us the extent of damage that has occurred that consisted of a hole in a tarpaulin, a dent in the roof of a metal shed, a cap missing from an air vent and some minor damage to fence-top lattice. We are not however satisfied that the damage to the fence-top lattice can be attributed to the tree in question.

12 Mr Woo showed us a collection of branches that he stated had fallen in recent weeks or months. They were mostly dead branches, with a maximum diameter of around 30mm. There were some small live branches. Mr Woo stated that one larger living branch had fallen, but that most branches that had fallen were dead. He said the live branch may have fallen during a storm.

13 We observed leaves, twigs and other material from the tree on the paving in Mr Woo’s courtyard, around the stormwater drain cover and in roof guttering.

Findings
Damage

14 In considering s 10(2)(a) of the Act, we are satisfied that the tree “has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property” by branches dropping from the tree and although the damage is relatively minor, this satisfies one of the tests in s 10(2) of the Act, thereby enabling orders to be made regarding the tree. We are however satisfied that damage that has occurred is relatively minor and given the age, health and spread of the tree, particularly over the applicant’s property we do not accept that an order requiring the removal of the tree can be justified in these circumstances. In coming to this conclusion we have taken into consideration the contribution to the local ecosystem and biodiversity (s 12(d)), the contribution to the natural landscape and scenic value of the land (s 12(e)) and the intrinsic value to public amenity (s 12(f)).

15 We do however accept that an order requiring the removal of the dead wood from that part of the tree overhanging Mr Woo’s property and within 2 m of Mr Atkinson’s property should be made.

16 In terms of the leaf drop, we are satisfied that the principles in Barker v Kyriakides apply, and that reasonable maintenance would prevent the blocking of gutters and stormwater drains, and would avoid any hazard arising from slippery ground surfaces.

Injury

17 In considering s 10(2)(b) of the Act, we are satisfied that while the potential for injury exists but given the age and health of the tree, the values it brings to the area (see par 14) and importantly, the orders requiring the removal of the dead wood, we are satisfied that the potential for injury has been reduced to the point where risk of injury to any person would not warrant the removal of the tree.

Orders

18 The Orders of the Court are:

1. The application is upheld in part.
2. The respondent is to engage and pay for an AQF level 3 arborist to remove deadwood down to 20mm in diameter from the tree. This is to be limited to the portion of the tree that overhangs the applicant’s property to a distance of 2m within the respondent’s property (measured from the dividing fence).
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. If required by the arborist, the applicant is to provide all reasonable access for this work to be carried out in a safe and efficient manner.
5. The works are to be completed within 60 days of the date of these orders.
6. The applicant is to be given at least 2 working days' notice of the commencement of the works.

___________________

G T Brown
Commissioner of the Court

___________________

D Galwey
Acting Commissioner of the Court