Wood v Sepoy [2011] NSWLEC 1018

Land and Environment Court New South Wales

Medium Neutral Citation: Wood v Sepoy [2011] NSWLEC 1018 Hearing dates: 27 January 2011 Decision date: 27 January 2011 Jurisdiction: Class 2 Before: Fakes C Decision: 1. Application to remove tree upheld. Catchwords: TREES [NEIGHBOURS]; damage to property; injury to persons Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Category: Principal judgment Parties: C and D Wood (Applicant) P Seepoy (Respondent) Representation: Mr C Wood [litigant in person] (Applicant) Mr P Seepoy [litigant in person] (Respondent) File Number(s): 20855 of 2010

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1COMMISSIONER: This is an application pursuant to Part 2 s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) made by the owners of a property in Castle Hill against the owner of tree growing on an adjoining property. 2The applicants are seeking the removal of the tree as they contend that the tree has caused damage to their property and will continue to do so. They are also concerned that it may injure someone. 3The tree is a mature Eucalyptus microcorys (Tallowwood) growing on the south-eastern side of the dividing fence between the parties' properties towards the rear of the respondent's property. The base of the tree is about 500 mm from the fence. 4The tree is healthy with a normal amount of dead wood (<5%). It has a bark inclusion between 2 major stems about midway in the canopy. One large horizontal branch overhanging the applicants' roof appears to have an unusual and possibly compromised attachment. The tree has a diameter at breast height of about 1.5 m. 5The damage to the applicants' property said to have been caused by the tree is: ·Damage to guttering in 2000 caused by the failure of a live branch; ·Damage to the roof and ceiling of a bedroom when a large live limb about 5 m long penetrated the roof in 2005; ·Damage to the sewer and stormwater pipes caused by the tree's roots in 2007/08; ·Damage to the south-western corner of the house foundations; ·Dislodgement of a support of the car port; and ·Displacement of the dividing fence through the growth of roots. 6The damage to the guttering, roof, ceiling, sewer and storm water pipes necessitated repair/ replacement of these items. 7In 2001, the applicants approached Baulkham Hills Shire Council (BHSC) for an inspection of the tree. The letter from the Tree Management Co-ordinator states in part: An inspection was conducted on the 21 September 2001 at your request. Whilst the current evidence would appear to suggest the tree roots are causing damage, approval for the removal of the tree is due to: ·Tree being located on neighbour's property. ·Exceptional amenity value of tree in question. Approval is granted to undertake limited root pruning on your property, however a qualified arborist must be employed to undertake such work and be performed in a manner so as to cause minimal disturbance to the tree. 8It is not clear whether this root pruning took place but when the applicants replaced a section of their sewer and storm water pipes in 2007/2008 several structural roots in excess of 200 mm in diameter were cut within 1 m of the base of the tree and to a depth of about 300 mm. 9In 2008, the respondent applied for and was given permission under the BHSC Tree Preservation Order (TPO) to remove this tree and three other Tallowwoods growing along his rear boundary fence. According to the applicants that permission had lapsed by the time this application to the Court was made. The respondent states that he has permission to remove the trees. 10While the respondent does not dispute the problems caused by the tree, and is intending to remove it and the 3 other trees, the matter has now come before the Court and is therefore subject to the jurisdictional tests in the Trees Act. This Act is independent of the local TPO. 11Importantly, under s 10(2) of the Trees Act, the Court must not make an order unless it is satisfied that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant's property or is likely to cause injury to any person. 12On the evidence of the photographs included in the application, it is clear that a large live limb did cause damage to the applicants' property and was of a size that could have caused serious injury. The branch that fell was healthy. At the time of the hearing it was not clear from which part of the canopy the branch had fallen; it would appear that this was an unpredictable failure. 13It is also clear from photographs and oral evidence that the roots have caused damage to the sections of sewer and stormwater pipes adjoining the tree. 14Whilst I saw some cracking of the render of a portion of the house footings in proximity to the tree, there is no evidence that this has been caused by tree roots. The applicants obtained an engineer's report regarding this damage however the report is a very brief letter. The second of three paragraphs states: My investigations reveal that a large Turpentine [sic] tree is located within the adjacent property to the boundary where the structural damage is occurring and I have concluded that the removal of the tree would minimise further damage. 15There is no indication that the engineer undertook any excavations to determine the nexus between the tree and the damage, and therefore, the report is unsubstantiated opinion and of no assistance to the Court. 16Similarly, while I saw some displacement of the pavers on which one of the carport supports rests, there is no evidence to suggest that the tree has caused this. 17However, on balance, I am satisfied that the tree has caused damage to the applicants' property and could continue to do so, and similarly it poses a risk of injury. Whilst there is some dead wood in the tree, the previous damage has been caused by the failure of live branches. I also have concerns over the extent of the root pruning that occurred. 18Therefore as several of the tests under s 10(2) are satisfied, the jurisdiction is enlivened and the Court may make an order. 19While I consider that the tree is an attractive specimen that provides amenity to the respondent and those in the neighbourhood that view it, I am satisfied that the tree should be removed as intended by the respondent and approved by council. 20I have considered the alternative option of removing the dead wood as well as the large branch with the poor attachment. However, given the history of the type of failures, that is - unpredictable failures of live branches, there is still a risk of damage or injury. Removing the canopy overhanging the applicants' property is not practical as it would remove about 1/3 of the tree. To this extent I agree with the two arboricultural reports obtained by the applicant. 21Therefore as a result of the forgoing, the Orders of the Court are: (1)The application to remove the tree is upheld. (2)The respondent is to engage and pay for an AQF level 3 arborist, with the appropriate insurances, to remove the tree and to grind the stump to at least 100 mm below ground level. (3)The work is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry . (4)The applicants are to provide all reasonable access for the works to be carried out in a safe and efficient manner. (5)The respondent is to provide the applicants with at least 3 working days notice of the commencement of the work. (6)The work is to be completed within 60 days of the date of these orders. J Fakes Commissioner of the Court

********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 February 2011