Younis v Niccol
[2019] NSWLEC 1441
•12 September 2019
Land and Environment Court
New South Wales
Medium Neutral Citation: Younis v Niccol [2019] NSWLEC 1441 Hearing dates: 12 September 2019 Date of orders: 12 September 2019 Decision date: 12 September 2019 Jurisdiction: Class 2 Before: Galwey AC Decision: The orders of the Court are:
(1) The application to prune the tree is granted as per the following orders.
(2) Within 60 days of the date of these orders, the respondents are to engage a suitably qualified and experienced (minimum AQF level 3) arborist with all appropriate insurances to:
(a) Prune the Liquidambar as per the pruning diagram on page 6 of the Draper report dated 12/6/2019 (see annexure);
(b) Prune remaining branch stubs back to their branch collars.
(3) The works in (2) must be carried out in accordance with AS4373:2007 ‘Pruning of amenity trees’ and the 2016 Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’.
(4) The respondents are to give the applicant 7 days’ notice of the works in (2).
(5) On reasonable notice, the applicant is to allow any access required to complete the works ordered above during reasonable hours of the day.
(6) Every two years during October, beginning October 2021, the respondents are to engage a suitably qualified and experienced (minimum AQF level 3) arborist with all appropriate insurances to remove all deadwood and any other branches identified by the arborist as hazardous.
(7) The works in (6) must be carried out in accordance with AS4373:2007 ‘Pruning of amenity trees’ and the 2016 ‘Safe Work Australia Guide to managing risks of tree trimming and removal work’.
(8) The respondents are to give the applicant 7 days’ notice of the works in (6).
(9) The applicant is to provide any access necessary for the works in (6) to be carried out during reasonable hours of the day.Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – damage or injury – previous pruning by respondents – branch failures – extent of pruning required to minimise risk Legislation Cited: Trees (Disputes Between Neighbours Act) 2006 (NSW) Texts Cited: AS4373:2007 ‘Pruning of amenity trees’
Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’Category: Principal judgment Parties: William Younis (Applicant)
Alan Niccol (First Respondent)
Wilhelmina Niccol (Second Respondent)Representation: W Younis, litigant in person (Applicant)
I Niccol, agent (Respondents)
File Number(s): 2019/127034 Publication restriction: No
Judgment
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
Background
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Alan and Wilhelmina Niccol (‘the respondents’) have a tall Liquidambar tree on their Penrith property. It was planted around 1950. Mr Younis (‘the applicant’) bought the neighbouring property from them in 2015 and has since developed it with multiple dwellings. The common driveway for those dwellings runs along the common boundary shared with the Niccols. The Liquidambar grows against the fence on this boundary.
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Mr Younis obtained an arborist report from Lawrie Smith of ‘About Trees’ during the building works on his property, to assess any impacts to the tree. He later obtained another report with a risk assessment of the tree from the same arborist. He has tried to negotiate pruning of the Liquidambar with the Niccols, but they are not willing to prune to the extent he requested.
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Mr Younis applied to the Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’), seeking orders for the tree’s removal or, failing that, pruning of branches overhanging his property.
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The Niccols obtained a report from Danny Draper of ‘Urban Tree Management’, who recommended less severe pruning.
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The three reports were filed with the Court. Mr Younis also filed a history of other correspondence and information from Penrith City Council.
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The Niccols’ son, Ian Niccol, represented them at the hearing. Mr Draper attended and gave oral evidence. Mr Younis represented himself.
The tree
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The arborist reports describe the tree fairly. The Liquidambar is just coming into leaf. It appears to be in fair health. Epicormic growth along several limbs is a response to some stress.
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I noted that large limbs above the Niccols’ property have been lopped. They explained that one limb fell onto their service wires some ten years ago. Another larger limb over their dwelling was removed around the time their roof was replaced. They said this was needed for erecting the scaffolding. The limb appears very upright and I doubt if its removal was required for that reason alone. The limb was lopped, leaving a long stub, rather than being properly pruned to its branch collar. The severe pruning on their side has resulted in more than half the tree’s crown now being above the applicant’s property, with no branches at all above the Niccols’ dwelling. The Niccols argued that they value their tree, its shade, cooling and habitat. They say it contributes to the landscape of their heritage-listed dwelling. Their words are not reflected in their actions – their approach to maintaining their tree seems to, perhaps selfishly, involve shifting much of its potential nuisance value (e.g. leaves in gutters) onto the neighbouring property. Despite valuing their tree so highly, they have engaged presumably unqualified contractors to lop the tree in a way that will lead to future problems. Pruning was not done within the guidelines of Australian Standard AS4373 Pruning of amenity trees. They now object to pruning on Mr Younis’ side of the tree due to potential impacts this might have on the tree, although their own pruning works have been more severe.
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Nevertheless, I am to determine if the tree is likely to cause damage to the applicant’s property in the near future, or is likely to injure any person (s 10(2) of the Trees Act). Mr Younis does not claim that the tree has damaged or is damaging his property.
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I agree with both arborists, Mr Smith and Mr Draper, that the tree’s crown structure results in some risk of limb failure, especially over Mr Younis’ property. Long limbs extend high above the property. Removal or loss of other limbs, and possibly other trees in the past, has left these relatively exposed to high winds. Several limbs up to 15 cm in diameter have failed in recent years – their torn stubs remain in the crown.
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In his first report, Mr Smith recommended removal of the tree, but noted that “the immediate risks it poses to people and property could be mitigated in the short term by implementing a crown reduction program.” (page 4)
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In his second report, Mr Smith noted six defects, four of which had a low risk of failing and causing significant consequences within a three-year timeframe, and two of which had a moderate risk of doing so. Both those defects are on one branch. Mr Smith recommended removal of the tree but noted that the removal of the branch with two defects posing moderate risk would mitigate these risks. However, he also noted that this would increase wind loads on the other four defects, increasing their failure potential.
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Mr Draper found the tree was generally of good structure but recommended some pruning to reduce the extent of the crown above the applicant’s property.
Findings
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I find there is a risk of further limb failures in the near future, above the applicant’s property, similar to those which have failed in the past, and that they might cause damage or injury. I accept Mr Draper’s evidence that pruning can minimise the risk sufficiently, allowing retention of the tree. Considering the extent of past pruning, the tree will be left with a reduced crown that is already showing signs of some stress. It will require monitoring for ongoing risk management.
Orders
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As a result of the above, the orders of the Court are:
The application to prune the tree is granted as per the following orders.
Within 60 days of the date of these orders, the respondents are to engage a suitably qualified and experienced (minimum AQF level 3) arborist with all appropriate insurances to:
Prune the Liquidambar as per the pruning diagram on page 6 of the Draper report dated 12/6/2019 (see annexure);
Prune remaining branch stubs back to their branch collars.
The works in (2) must be carried out in accordance with AS4373:2007 Pruning of amenity trees and the 2016 Safe Work Australia Guide to managing risks of tree trimming and removal work.
The respondents are to give the applicant 7 days’ notice of the works in (2).
On reasonable notice, the applicant is to allow any access required to complete the works ordered above during reasonable hours of the day.
Every two years during October, beginning October 2021, the respondents are to engage a suitably qualified and experienced (minimum AQF level 3) arborist with all appropriate insurances to remove all deadwood and any other branches identified by the arborist as hazardous.
The works in (6) must be carried out in accordance with AS4373:2007 Pruning of amenity trees and the 2016 Safe Work Australia Guide to managing risks of tree trimming and removal work.
The respondents are to give the applicant 7 days’ notice of the works in (6).
The applicant is to provide any access necessary for the works in (6) to be carried out during reasonable hours of the day.
……………………………….
D Galwey
Acting Commissioner of the Court
Annexure (342 KB, pdf)
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Decision last updated: 17 September 2019
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