Yang v Scerri

[2007] NSWLEC 592

Land and Environment Court

of New South Wales

CITATION:	Yang v Scerri [2007] NSWLEC 592
PARTIES:	APPLICANT Miriam Yang RESPONDENT Terrance Wayne Scerri
FILE NUMBER(S):	20558 of 2007
CORAM:	Brown C - Hoffman C - Fakes AC
KEY ISSUES:	Trees (Neighbours) - Neighbour Application :- Tree Dispute Principle cl 10(2)(a) damage "likely in the near future"- safety - damage
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
DATES OF HEARING:	31/08/07
EX TEMPORE JUDGMENT DATE:	31 August 2007
LEGAL REPRESENTATIVES:	APPLICANT In person RESPONDENT Mr S Gates, solicitor SOLICITORS Straton Gates

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C with Hoffman C and Fakes AC

31 August 2007

20367 of 2007 Miriam Yang v Terrance Wayne Scerri

JUDGMENT

1 COMMISSIONERS: This is an application made pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by Ms Miriam Yang of 3/3 Russell Street East Dennistone concerning a Sydney Blue Gum (Eucalyptus saligna) (the tree) located close to the common boundary with 5 Russell Street East Dennistone owned by Mr Terrance Wayne Scerri. Mr Scerri lives overseas and was represented by his solicitor Mr Simon Gates and representatives of the leasing agent First National Real Estate Epping.

2 The extemporaneous decision was given on site on 31 August 2007 and the judgment reflects the findings and the background documentation provided as part of the proceedings.

3 Ms Yang’s application is to require the removal of the tree as:

• the tree has caused damage to the units through falling branches. The Body Corporate records indicate damage to Unit 2 in 1996 from the tree.
• on 24 March 2007 a very large tree trunk broke away from the tree without warning causing damage to the roof, tiling and guttering off Unit 3,
• there are several major tree trunks extending over the roof of 3 Russell Street,
• approval has been granted by the council for the removal of the tree,
• an arborist report supports the removal of the tree, and
• the tree shows signs of termite infestation.

4 Ms Yang maintains that there is a very high potential of risk of injury to people due to the location of this tree and the history of branches dropping into 3 Russell Street, as well as the site containing the tree.

5 Compensation of $446 is sought based on the cost of the tree application ($346) and the insurance excess for the damage caused on 24 March 2007 ($100).

6 Mr Gates opposes the removal of the tree because the tree is in good health. He would however accept orders that provides for:

pruning of overhanging branches,
• removal of deadwood,
• annual inspections with a copy of that the annual report to be provided to the Owners Corporation of 3 Russell Street and
• compliance with any pruning and removal of deadwood within 60 days.

7 The respondent provided an arborist report (ecodesign dated 13 Aug 2007) that states that the tree is mature and considering the development and the associated pruning that has previously occurred, the tree may continue any its mature state for potentially 15 to 20 years. The report further states that the tree is not at the end of its natural life as it is not displaying the usual signs that a senescent tree would display, i.e., excessive deadwood, large range of failures, epicormic shoots or decay hollows. The report supports the Orders sought by the respondent.

8 An affidavit was also provided by the respondent from the occupier of the dwelling, Ms Anne Marie Morgan, who supports the retention of tree.

9 Clause 10(2) of the Trees (Disputes Between Neighbours) Act 2006 provides that:

( 2) The Court must not make an order under this Part unless it is satisfied that the tree concerned:

(a) has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or
(b) is likely to cause injury to any person.

10 In our view, and following a ground inspection of the tree we generally agree with the submissions of the respondent. The tree is clearly in a mature state however there is no valid reason why the tree should be removed based on our observations. We acknowledge the concerns expressed by Ms Yang however the site observations do not highlight any obvious weaknesses in the structure of the tree and as such we cannot conclude that the tree is likely in the near future to cause, damage to the applicant’s property (cl 10(2)(a)) or is likely to cause injury to any person (cl 10(2)(b)). This conclusion is supported by the ecodesign report. While Ms Yang produced an arborist’s report that supported the removal of the tree, we are satisfied that greater weight should be given to the ecodesign report based on our observations on site.

11 Since the interpretation of cl 10(2) is an ongoing issue it is appropriate that the Court to set down some principles for its use.

Tree Dispute Principle

12 The third of the tests in cl 10(2)(a) of the Act requires a consideration of whether any property damage is “likely in the near future”. This requires an assessment of both the probability of damage being caused (“likely”) and the timeframe within which it would occur (“in the near future”). This Tree Dispute Principle only addresses the second of those assessments. Questions of probability will require consideration of a wide range of matters specific to the particular tree and its context. These will include the species, age and condition of the tree and any matters arising out of its location such as the property (both real and personal) in the area near the tree.

13 The term “in the near future” is not defined in the Act. The phrase has its ordinary meaning of “close in time” (see Macquarie Dictionary, definition 11). It is desirable to adopt a “rule of thumb” that will provide some consistency in the application of this requirement.

14 Ordinarily, the near future would involve a time period extending from the date of determination of the application to 12 months. After 12 months, it would be difficult to describe a period as being “in the near future” or being close in time to the date of determination of the application. We say "ordinarily" because there may be, in the particular circumstances of the case, reason to adopt a longer period than 12 months. The adoption of a 12 month rule of thumb period means that in order to satisfy the third test in s 10(2)(a), the tree concerned would need to be likely to cause damage to property within a period of 12 months after the date of determination of the application. If it is not likely to do so within that period but rather in a longer period, the third test in s 10(2)(a) could not the satisfied and the Court would have no power to make an order in relation to the tree (assuming that no other test under s 10(2)(a) or (b) is satisfied). This would not prevent a further application being made in the future if the tree concerned becomes likely, in a future period beyond 12 months, to cause damage to property.

15 The compensation claim of $446 is rejected. Section 9(2)(i) limits compensation to damage to property.

16 The Orders of the Court are:

A) The application is upheld, in part.
B) The respondent is to undertake the following works:
1. All dead wood within 3 m of the common boundary with 3 Russell Street, Eastwood and is greater than 30mm in diameter be removed from the tree,
2. An aerial inspection of the tree for any defective branches be undertaken within 60 days from the date of this Order and annually after this time. Any defective structural branches within 3 m of the common boundary with 3 Russell Street are to be removed at the time of the aerial inspection. Any defective structural branches are those that are highly likely to fail within a 12-month period,
3. All broken limbs are to be removed in accordance with Australia Standard 4373 – 2007,
4. Such annual inspections and pruning are to be undertaken by an AQF level 3 Arborist with appropriate insurances and in accordance with Australia Standard 4373 – 2007,
5. The tree is to be inspected annually for termite infestation at around the same time as the aerial inspection of the tree,
6. The owner of the Tree will be required to provide a written report to the Owners of Strata Plan 43555 within 14 days of the carrying out of such annual inspection for defective branches and termite infestation so that the Owners of Strata Plan 43555 can be aware of that inspection and can monitor the removal of any defective branches and dead wood required to be removed, and
7. All work ordered to be undertaken is to be paid by the owners of the tree.
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G T Brown
Commissioner of the Court

___________
K Hoffman
Commissioner of the Court

___________
Judy Fakes
Acting Commissioner of the Court