Zhang v Alzaidi; Zounis v Alzaidi

[2021] NSWLEC 1536

Land and Environment Court

New South Wales

Medium Neutral Citation:

Zhang v Alzaidi; Zounis v Alzaidi [2021] NSWLEC 1536

Hearing dates:

23 June 2021

Date of orders:

17 September 2021

Decision date:

17 September 2021

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

Proceedings 2021/45399

See orders at [35]

Proceedings 2021/88694

See orders at [36]

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – neighbouring trees – damage and injury – whether damage or injury is likely – orders for tree pruning and removal

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 9, 10, 12

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292

Freeman v Dillon [2012] NSWLEC 1057

Texts Cited:

AS 4373-2007 ‘Pruning of amenity trees’

Safe Work Australia 2016 ‘Guide to managing risks of tree trimming and removal work’

Category:

Principal judgment

Parties:

Proceedings 2021/45399
Lusha Zhang (First Applicant)
David Lisica (Second Applicant)
Samir Alzaidi (Respondent)

Proceedings 2021/88694
Steve Zounis (First Applicant)
Marie Barbaro (Second Applicant)
Samir Alzaidi (Respondent)

Representation:

Proceedings 2021/45399
L Zhang (Litigant in Person) (First Applicant)
D Lisica (Litigant in Person) (Second Applicant)
S Alzaidi (Litigant in Person) (Respondent)

Proceedings 2021/88694
S Zounis (Litigant in Person) (First Applicant)
M Barbaro (Litigant in Person) (Second Applicant)
S Alzaidi (Litigant in Person) (Respondent)

File Number(s):

2021/45399
2021/88694

Publication restriction:

No

Judgment

1. COMMISSIONER: This decision takes in two applications made to the Court, each application being made by separate neighbours seeking orders for pruning trees on a Campbelltown property belonging to Samir Alzaidi (‘the respondent’ in both applications). Both applications are made pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’).

2. In proceedings 2021/45399, Lusha Zhang and David Lisica (‘the 21/45399 applicants’) seek orders for the respondent to prune and maintain nine trees on his property, some of which are near their common boundary. They want dead branches removed from the trees and all overhanging branches pruned back to the boundary. They want the trees pruned because branches might fall and cause damage or injury.

3. In proceedings 2021/88694, Steve Zounis and Marie Barbaro (‘the 21/88694 applicants’) seek orders for the respondent to prune and maintain six trees on his property near their common boundary. They too want dead branches removed from the trees and all overhanging branches pruned back to the boundary. Their reasons for wanting these orders include: the risk of fire, risk of injury or damage, debris falling from the trees, and obstruction of sunlight. They also seek compensation for the cost of some pruning they have done.

Framework for this decision

4. Under Pt 2 of the Trees Act, certain jurisdictional tests are set out at s 10, where the Court must be satisfied of certain matters before making any orders. Firstly, the Court must be satisfied that the applicants have made reasonable effort to reach agreement with the tree owner (s 10(1)(a)). Secondly, the Court must be satisfied that the tree concerned 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 (s 10(2)). Where an application includes more than one tree, this test must be met for any individual tree before orders can be made for that tree.

5. The Court must also consider a range of matters at s 12 of the Trees Act before making orders at s 9 to remedy, restrain or prevent damage to property, or to prevent injury to any person, as a consequence of the tree or trees in the application.

The hearing

6. The hearing took place onsite, allowing for observations of the trees and both properties. All parties were self-represented. No expert evidence was adduced. I rely on my own arboricultural expertise and experience in making this decision.

The applicants made reasonable effort

7. The applicants in each matter spoke with the respondent about the trees. He is reluctant to take any action, although he told them they could prune the trees if they wish. I am satisfied that the applicants in each matter made reasonable effort to reach some agreement.

The trees

8. The applicants in each matter have used consistent numbering for the trees and the same plan showing the trees. I include a copy of that plan below.

9. The trees subject to the applications and shown on this plan are:

• T1 Ligustrum lucidum (privet) approximately 8 metres tall;

• T2 Olea europaea (olive) approximately 8 metres tall;

• T3 Olea europaea (olive) approximately 7 metres tall;

• T4 unidentified palm approximately 10 metres tall;

• T5 Jacaranda mimosifolia (jacaranda) approximately 9 metres tall;

• T6 Erythrina ×sykesii (coral tree) approximately 13 metres tall;

• T7 Cinnamomum camphora (camphor laurel) approximately 14 metres tall;

• T8 Cinnamomum camphora (camphor laurel) approximately 15 metres tall;

• T9 Cinnamomum camphora (camphor laurel) approximately 15 metres tall.

21/45399 applicants’ submissions

10. As the plan copied above shows, the 21/45399 applicants are only affected by trees T7–T9, although they included all nine trees in their application. They submitted that branches are likely to fall from these trees. They use their back yard, so falling branches might injure them. Branches from T8 and T9 are also likely to damage their chicken coop. Despite Mr Alzaidi stating that the trees have not caused any damage yet, the applicants argued that this does not mean they will not cause damage in the future. They want the trees pruned to the boundary and all dead branches removed from the trees.

11. I note here that their application included seeking an order to recover costs for pruning T5 and T6, but this order appears to have been copied over from the 2021/88694 application.

21/88694 applicants’ submissions

12. The 21/88694 applicants submitted that they are affected by branches of trees T1–T6 overhanging their property. Branches of these trees obstruct sunlight to the two dwellings on their property. The trees drop leaves, twigs and other debris on their property, requiring constant clean-up. The trees are close to their dwellings, so any fire in the trees puts their dwellings at risk. Mr Zounis has pruned some of these trees and taken pruned branches to the tip. The trees appear to provide little in the way of habitat or other benefits. Despite Mr Alzaidi stating that the trees have not caused any damage yet, the applicants argued that this does not mean they will not cause damage in the future. They want the trees pruned to the boundary and all dead branches removed from the trees.

The respondent’s submissions

13. Mr Alzaidi’s submissions were of a general nature, addressing the issues in both applications, so I group them together here.

14. The respondent bought his property about six years ago. Since then, he has received no claims from his neighbours for any damage or injury caused by these trees. The applications concern only the future risk of damage and injury, but the respondent submitted that the applicants in each matter have not proven any risk exists.

15. The respondent submitted that the trees are healthy and without defects. He said there is no dead wood in the trees. The trees are mostly over his own property, where they are of no risk. He submitted that pruning all overhanging branches back to the common boundaries is unnecessary and impractical. He gave permission to the applicants to prune if necessary.

16. The respondent submitted that the 21/45399 applicants’ chicken coop is relatively low value and unlikely to be significantly damaged by branch failures.

17. The respondent submitted that the trees provide benefits including privacy, soil stability, landscape value, shading and protection from wind.

18. Mr Alzaidi wished to give somewhat extensive submissions regarding the general nature of tree risk. These were not specific to the trees in these applications and were unlikely to inform the Court on this subject, so the Court limited those submissions.

21/45399 findings

19. Despite the respondent’s submissions that the trees are all healthy and without defects, I found otherwise. Trees T7–T9 are three large camphor laurels on the respondents’ property along the common boundary shared with the 21/45399 applicants. They are approximately 15 metres tall with broad crowns that spread out over both the respondent’s property and the 21/45399 applicants’ property. Dead branches are present in their crowns and broken branch stubs indicate past branch failures.

20. Tree T7 is in poor condition. It is covered by a vine, large branches throughout its upper crown are dead or dying, and branches have been falling from the tree. Branches that fall onto the applicants’ property might cause injury or damage. There is little point in pruning this tree, as most of its crown would need to be removed and the tree’s decline will continue. This tree provides little benefit to the respondent or to the surrounding environment. T7 should be removed.

21. Branches of both trees T8 and T9 extend well over the 21/45399 applicants’ property. Deadwood is present in both trees. Branches have failed in both trees and further branch failures are likely in the near future. The risk can be reasonably mitigated by pruning both trees to remove lower branches over the applicants’ property and reducing branches higher in the crown to suitable lateral branches, and removing deadwood above the applicants’ property. Pruning all overhanging branches back to the boundary is not necessary to mitigate the risk.

21/88694 findings

Damage caused by debris

22. There is no evidence that debris from trees T1–T6 has caused any damage to the 21/88694 applicants’ property. It is possible that debris, when not removed from gutters or paths can cause discoloration or hasten corrosion. However, the principle established in Barker v Kyriakides [2007] NSWLEC 292 at [20] applies here:

“For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis.

The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree.”

23. There is no reason in these proceedings to veer from this principle. I will not make any orders to minimise debris from the trees, either for the maintenance it requires or any potential damage it might cause.

Risk of fire

24. Commissioner Fakes described the difference between damage caused by fire and damage caused by trees in Freeman v Dillon [2012] NSWLEC 1057 at [86]. The circumstances in the current proceedings give no reason to foresee a high risk of the subject trees burning and causing damage to the applicants’ property. I see no reason to make orders on this element of the application.

Sunlight

25. Obstruction of sunlight has not caused damage to the applicants’ property, nor is it likely to do so. The application has been made under Pt 2 of the Trees Act concerning damage and injury.

Risk from falling branches

26. T1 has been pruned back by the 21/88694 applicants already. There is no significant risk of damage or injury from its branches falling in the foreseeable future.

27. Debris falls onto the 21/88694 applicants’ property from trees T2 and T3. This issue has been discussed above. Larger branches from these two trees are unlikely to fall and cause damage or injury.

28. Dead fronds are likely to fall from T4, the palm, onto a frequently used area of the 21/88694 applicants’ property. The risk of damage or injury in the near future can be mitigated by reasonable pruning to remove dead fronds.

29. The jacaranda, T5, leans significantly with long branches over the 21/88694 applicants’ property. Branches are likely to fall and cause damage or injury. Reasonable pruning can mitigate the risk without damaging the tree by removing long branches back to the stem.

30. Long branches of the coral tree, T6, extend over the 21/88694 applicants’ property. Branches of this species are brittle compared with most tree species, and more likely to break during storms or under loads. Falling branches would be likely to damage the applicants’ property, or cause injury. Reasonable pruning can mitigate the risk without damaging the tree by reducing the crown by approximately 20% total crown mass on the side of the 21/88694 applicants’ property, and removing deadwood above the applicants’ property. Pruning all overhanging branches back to the boundary is not necessary to mitigate the risk.

Consideration of relevant matters

31. When determining the works required for each tree above, I have considered the matters at s 12 of the Trees Act. The extent of works has been minimised to reasonably mitigate the risk while preserving the benefits provided by the trees. Tree T7’s poor condition does not justify the expense of pruning works that might allow its retention. All other trees can be retained. Individually, some make only a minor contribution to shading, cooling or privacy, but together these trees contribute positive benefits to the respondent’s land. Pruning all overhanging branches back to the common boundaries is not necessary to mitigate the risk.

32. If pruning or removing these trees would usually require consent from Campbelltown Council, that consent is not required when carrying out the works ordered below.

33. The applicants in each matter have not directly contributed to the risk of damage or injury through their own actions. The respondent has not been malicious in any way, but has neglected to carry out reasonable maintenance of his trees. The respondent will pay for the works ordered below.

34. Pruning carried out already by the 21/88694 applicants is their common law right, subject to the local council’s consent requirements. There is no reason for the respondent to compensate the applicants for the cost of those works.

Orders

Proceedings 2021/45399

35. As a result of the foregoing, the Court orders that:

1. The application is granted to the extent of the orders below.

2. Within 30 days of the date of these orders, the respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF Level 3) with all appropriate insurances to carry out the following works:

1. Remove T7 (camphor laurel) to no more than 500 mm above ground level;

2. Prune trees T8 & T9 (camphor laurels) to remove long low branches above the applicants’ property back to the stem, reduce higher branches above the applicants’ property back to suitable lateral branches, and remove any deadwood >20 mm in diameter above the applicants’ property (see Annexure A for example).

3. The works in (2) must be carried out in accordance with AS 4373-2007 Pruning of amenity trees and the 2016 Safe Work Australia Guide to managing risks of tree trimming and removal work.

4. The respondent is to give the applicants at least two days’ notice of the works in (2).

5. The applicants are to provide all reasonable access required to complete the works in (2) during reasonable hours of the day.

Proceedings 2021/88694

36. The Court orders that:

1. The application is granted to the extent of the orders below.

2. Within 30 days of the date of these orders, the respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF Level 3) with all appropriate insurances to carry out the following works:

1. Remove dead fronds from the palm, T4;

2. Prune T5 (jacaranda) to remove long branches above the applicants’ property back to the stem;

3. Prune T6 (coral tree) to reduce the crown over the applicants’ property by ~20% total crown mass, reducing branches by pruning back to suitable lateral branches, and remove any deadwood >20 mm in diameter above the applicants’ property.

3. The works in (2) must be carried out in accordance with AS 4373-2007 Pruning of amenity trees and the 2016 Safe Work Australia Guide to managing risks of tree trimming and removal work.

4. The respondent is to give the applicants at least two days’ notice of the works in (2).

5. The applicants are to provide all reasonable access required to complete the works in (2) during reasonable hours of the day.

……………………………….

D Galwey

Acting Commissioner of the Court

Annexure A (805968, pdf)

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Decision last updated: 17 September 2021