Boyaci, A v Farncomb, B [2008] NSWLEC 1121

Land and Environment Court of New South Wales

CITATION : Boyaci, A v Farncomb, B [2008] NSWLEC 1121

APPLICANT Boyaci, Arnold PARTIES : RESPONDENT Bill Farncomb

FILE NUMBER(S) : 20016 of 2008

CORAM: Fakes AC

KEY ISSUES: Neighbour Application - Trees (Neighbours) :- Removal of tree, damage to property and persons

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

CASES CITED: Yang v Scerri [2007] NSWLEC 592

DATES OF HEARING: 14/03/2008

EX TEMPORE JUDGMENT DATE : 14 March 2008

APPLICANT Mr A. Boyaci, litigant in person LEGAL REPRESENTATIVES:

RESPONDENT Mr B. Farncomb, litigant in person

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Fakes AC

14 March 2008

20016 of 2008 Boyaci, Arnold v Farncomb, Bill

JUDGMENT 1 This is an application pursuant to s7 of The Trees (Disputes Between Neighbours) Act 2006 made by Mr Arnold Boyaci of 58 Jenner Road Dural concerning a Eucalypt on the adjacent property owned by Mr and Mrs Farncomb of 56 Jenner Road Dural.

2 The applicant seeks the removal of the tree as a branch tore from the tree and rested on the roof of his house during a storm in late 2007. He is concerned that the whole tree may fail onto his house therefore causing damage to his property and injury to his family.

3 The respondents do not want the tree removed as they bought their house 21 years ago because of the trees. The tree is used by possums and is an extension of the nearby bush reserve.

4 The tree was inspected from both properties and the upper part of the canopy viewed through binoculars. The tree is a mature Eucalyptus sp. of at least 25 m tall that is likely to be a remnant of the original forest. It is showing signs of dieback consistent with the effects of the impacts of the construction of both number 56 and 58 Jenner Road. These signs are a higher than normal percentage of dead wood and epicormic shoots consistent with dieback and recovery. There is a bird's nest or possum dray in the upper part of the canopy.

5 The branch that failed was reportedly a declining branch with dead and live components that was about 150 mm in diameter and about 6m long. The remaining stub indicates a twisting fracture. The respondents stated that the branch was still attached to the tree when they called the SES after the storm. The branch lay across the applicant's roof. According to the respondents, the SES officer stated that no damage had been done to the applicant's roof. The applicant was out of the house when it happened.

6 The applicant stated that it was the largest branch that had failed in the 10 years that he had lived at this address but that smaller branches had fallen. He stated that he has some cracked tiles but no real damage due to fallen branches. He said that he has approached the respondents on previous occasions to have the tree removed and had offered to contribute to the costs of removal. The respondents did not see the need for the tree to be removed.

7 Under s 12 of the Act, the Court must consider a number of issues. The clauses relevant to this situation are: (a) the tree is wholly located within the respondents' property (d) the tree does make a contribution to the local ecosystem and to biodiversity, and (e) the tree makes a contribution to the natural landscape and to the land on which it is located.

8 Under s 10(2) of the Act, the Court must be satisfied that the tree has caused, is causing, or could in the near future, cause damage to property or injury to persons. In Yang v Scerri [2007] NSWLEC 592, the Court has determined that in the 'near future' is deemed to be within the next 12 months.

9 On viewing the tree and hearing the evidence, despite the branch failing onto the applicant's house it did not cause any damage substantial enough to warrant the making of an order to remove the tree, nor is it currently causing any damage to the applicant's property. The risk of whole tree failure seems remote as there was no evidence at the base of the tree to suggest instability. Similarly there were no obvious structural defects in the trunk or main structural branches that would lead to substantial failures. However, there is considerable dead wood of a size that could cause damage or injury.

10 The orders of the Court are that the application to remove the tree is refused however some pruning is required.

11 All dead wood down to 40 mm in diameter is to be removed within 2 m of the boundary fence and within the bounds of number 56 Jenner Road Dural. The work is to be performed by an AQF level 3 qualified arborist with the appropriate insurances. All work is to comply with AS4373:2007 Pruning of Amenity Trees and the NSW WorkCover Code of Practice for the Amenity Tree Industry. No wildlife or their nests are to be disturbed during these works. The work is to be completed within 60 days of the date of these orders and is to be paid for by the respondents.

___________________ J Fakes Acting Commissioner of the Court ljr

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