Gray v Ward [2010] NSWLEC 1056

Land and Environment Court of New South Wales

CITATION : Gray v Ward [2010] NSWLEC 1056

APPLICANT Bruce Gray and Julie-Ane Gray PARTIES : RESPONDENT Raymond Ward

FILE NUMBER(S) : 20995 of 2009

CORAM: Fakes C

KEY ISSUES: TREES (NEIGHBOURS) :- Removal of three trees, damage to property and risk of injury to persons

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING: 24 March 2010

EX TEMPORE JUDGMENT DATE : 24 March 2010

APPLICANT Mr Abramowicz (solicitor) SOLICITOR LEGAL REPRESENTATIVES: Waldemar Abramowicz Fox & Staniland

RESPONDENT Mr Raymond (litigant in person)

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Fakes C

24 March 2010

20995 of 2009 Gray v Ward

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 made by Dr and Mrs Gray of 34 Billyard Avenue Wahroonga against the owners of three trees growing at the rear of 30-32 Billyard Avenue. The owners of that property are Mr and Mrs Ward. The applicants were represented by Mr Abramowicz, solicitor. Mr K Hill, arborist for the applicants gave evidence at the on-site hearing.

2 The applicants are seeking the removal of the three trees as they contend that dead branches falling from the trees have caused, and could continue to cause, damage to their property and are a risk of injury to persons.

3 The damage said to have been caused by the falling dead wood is the breaking of roof tiles on an outbuilding used as a garage and laundry, the roof of a workshop and damage to a car parked in the driveway near the trees. Whilst no injury has occurred, it is asserted that, on two occasions, falling dead branches narrowly missed the applicants' children. Photographs of the damaged tiles, and the branches said to have missed the children, were tendered as evidence.

4 Another issue raised by the applicants was the desire to install solar panels on the roof of the outbuilding/garage for the purpose of heating a new swimming pool. In a letter from the architect dated March 10 2010 and tendered as evidence, the advice from the architect is that the applicants "arrange to have the danger from falling limbs removed. We recommend the three trees closest to the boundary be removed and replaced with species more suitable for their positions."

5 The application included a supplementary form for compensation with a note that the amount and details were to be advised. A Court direction was given on 15 February stating that details of claims must be provided to all parties, including the Court and a time limit was set. That information was not forthcoming by the specified time and therefore the claim for compensation cannot be considered.

6 The trees are three mature Eucalyptus pilularis (Blackbutt) growing at the rear of the respondents' property near the dividing fence with the applicants.

7 The respondents showed us a photograph taken in 1933 shortly after the construction of the house and the laying out of the garden. The trees are clearly visible as established trees. It is highly likely that the trees are remnants of the original forest and are in excess of 100 years old. The trees in question are the most easterly of the approximately 11 remaining remnant trees in the rear garden, The three trees are growing in what is now a garden bed.

8 Under s 10(2), the Court must not make an order unless it is satisfied that the trees have caused, are causing, or are likely in the near future to cause, damage to the applicants' property or are likely to cause injury to any person. These tests must be applied to each tree.

9 Mr Hill visually assessed the trees from the ground and he employed others to conduct an aerial inspection that he supervised. His March 2010 report was tendered in evidence.

10 I viewed the trees from the ground from both properties and used binoculars to view the upper parts of the canopy and relevant sections of the trees identified in Mr Hill's report as being defective.

11 Tree 1 is the closest of the three trees to the applicants' property. On my view, the tree is in average condition with some dead wood, some of which is close to the applicants' property. There were no obvious structural defects or compromised branch attachments.

12 Mr Hill's report notes minor longicorn activity, some fungal activity that is not problematic, and termite workings. He concluded that this tree was the least likely of the three trees to cause problems.

13 Tree 2 is some 10m from the dividing fence between the two properties with about 5% of the canopy overhanging the applicants' property In Mr Hill's report, and confirmed on site, it appears that the top of the tree was lost in a major storm that swept through the area in January 1991. The impact of that storm was well documented at the time as it was of such unusual intensity. Since then, epicormic shoots have re-established the upper part of the canopy.

14 Mr Hill pointed out several cavities in the main trunk, one of which contained an active bees nest that limited the time spent undertaking an aerial inspection of this tree.

15 According to Mr Hill's report, sounding the base of this tree with a resonance hammer did not indicate any "significant basal trunk tissue dysfunction".

16 Between 15 and 20m above ground, several cavities were noted. According to the report the cavities are likely to be linked. There was a small bulge associated with the cavity containing the bees indicating the production of reaction wood and an indication of a mechanical response to the internal decay. In his summary, Mr Hill states that the tree " has a potentially weak regenerated canopy…in the event of its failure could easily partially land within 34 Billyard Avenue property". He goes on to say that dead wood could be managed by simply removing it. He then goes on to speculate as to what the Court might reasonably order, including the removal and replacement of the tree or the removal of a branch growing towards the applicants' property if the tree was ordered to be retained.

17 On my assessment, there were no signs that any of the regenerated canopy had failed or was likely to do so. However, the tree had some dead wood with the potential to fall onto the applicants' property.

18 Tree 3 is about 4m from the dividing fence and partially overhangs what the applicants describe as the outbuilding and workshop. The property was a former convent established in the 1930s.

19 Mr Hill states that this tree has many points for large diameter branch failures and gives similar recommendations to those for tree 2. It is likely that this tree also lost an upper section of its canopy during the January 1991 storms. Mr Hill's ground level inspection noted a sound base, multiple cavities higher in the trunk, dead wood and cockatoo damage.

20 During the aerial inspection the upper sections of the trunk were sounded with the hammer and 'dysfunctional' tissue was determined to be present. Sticks were used to measure one cavity at a point where the trunk was said to be 800mm in diameter. The internal measurement was said to be 480mm. On my calculation of those figures this is a possible loss of 60% and less than the threshold for action currently recommended by most consulting arborists.

21 A deficit in Mr Hill's report is the absence of a detailed methodology. Apart from stating that he applied the principles of 'Visual Tree Assessment' or 'VTA' according to Mattheck 1994, there is no detailing of how the measurements were taken. The information on the use of sticks was elicited during the hearing. Mr Hill was questioned as to why he did not move onto the next stage of the VTA process, that is, if a visual inspection or sounding with a hammer raises concerns as to the structural integrity of a tree, the defect should be measured more accurately by using a Resistograph or a tomograph or similar, or at least, why this next step wasn't recommended. He stated that the time frame for the inspection was limited and that the use of such devices would be difficult.

22 My assessment of the tree, based on a visual inspection and questioning Mr Hill, is that the greatest risk of damage or injury arises from the presence of dead wood in the tree. It is likely that the dead branches said to have damaged the roof of the outbuilding and workshop came from this tree.

23 The Court must consider a number of matters under s 12 of the Act. The relevant clauses in this case are: (a) The trees are wholly located on the respondents' property. (d) The trees are highly likely to be remnants of the original vegetation and as such will make a contribution to the local ecosystem. From the photographs in Mr Hill's report it appears that native fauna may use a number of the cavities and thus the trees make a contribution to biodiversity. (e) The trees contribute to the scenic value of the land on which they are growing and to the locality. (f) The trees can be seen from the street and from nearby residences and this have value to public amenity. They form part of the overall canopy which contributes to the landscape character of the area.

24 Returning to section 10(2) and the issues raised by the applicants. Dealing firstly with the issue of the solar panels. As the panels do not exist, there can be no damage. It is not within the jurisdiction of the Court to order the interference with a tree based on an applicant's desire to install a future structure. The presence of trees would be a matter to be considered in the location of such panels.

25 The evidence that dead wood has fallen from the trees resulting in damage to the applicants' property and potential injury to their children is not disputed by the respondents. The existence of dead wood in all three trees means that the trees are likely in the near future to cause damage to property and could cause injury to any person although the risk is higher on the applicants' property due to the use of the land. Thus several of the tests under s 10(2) are satisfied and the jurisdiction is enlivened. However, there has been no evidence that live branches have failed from the tree. Similarly, I am not persuaded by Mr Hill's report and by the evidence on site that the removal of the trees, or any live branches, is justified.

26 Section 9 of the Act enables the Court to make such orders as it sees fit to prevent damage to property or to prevent injury to any person with respect to the trees subject to the application. Therefore the Orders of the Court are: 1. The application to remove the three trees is dismissed. 2. The respondents are to engage and pay for an AQF level 3 arborist to remove all deadwood down to 30mm in diameter from the three trees from the sections overhanging the applicants' property to a distance of 8m inside the respondents' property measured from the dividing fence between the two properties. 3. This work is to be undertaken in accordance with AS4373:2007 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry . 4. The applicants are to provide all reasonable access, if required, for the works to be undertaken in a safe and efficient manner. 5. The applicants are to be given at least 3 working days notice of the commencement of the works. 6. The works are to be completed within 40 days of the date of these orders. 7. The removal of dead wood is to be carried out in accordance with condition 2 every two years within 14 days either side of the anniversary of the first pruning. Conditions 3, 4 and 5 apply to all subsequent works.

__________________ J Fakes Commissioner of the Court

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