La Maitre v Bailey [2008] NSWLEC 1242

Land and Environment Court of New South Wales

CITATION : La Maitre v Bailey [2008] NSWLEC 1242

APPLICANT Carolyn La Maitre PARTIES : RESPONDENT Yvonne Bailey

FILE NUMBER(S) : 20095 of 2008

CORAM: Fakes AC

KEY ISSUES: Trees (Neighbours) :-

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

CASES CITED: Yang v Scerri [2007] NSWLEC 592

DATES OF HEARING: 13 June 2008

EX TEMPORE JUDGMENT DATE : 13 June 2008

APPLICANT In person LEGAL REPRESENTATIVES: RESPONDENT In person

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Fakes AC

13 June 2008

20095 of 2008 Carolyn La Maitre v Yvonne Bailey

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

The consequence of the Court's decsion in this application is the making of formal orders pursuant to s.9 of the Trees (Disputes Between Neighbours) Act 2006. These orders are not reproduced as part of this decision but a copy of the Court's Orders may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/ 1 ACTING COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 made by Ms Carolyn Le Maitre of 26 Beryl Street Coffs Harbour concerning two trees located at 24 Beryl Street a property owned by Ms Bailey (now Mrs Williams) who resides in Sydney and which is rented by Ms Maree Keast.

2 Present at the on-site hearing were the applicant, Mr Rick Oakley a friend of the applicant, Yvonne and Benjamin Williams (the respondent and her husband) and Ms Keast. Also present were Mr and Mrs Sheath of 23 Ann Street, a property adjacent to 24 Beryl Street and which has also been affected by one of the trees in question. The Sheaths made a written submission in support of the applicant.

3 The trees are two Liquidambar styraciflua (Liquidambar) located on the western and south-western boundaries at the rear of 24 Beryl Street.

4 The applicant seeks either the removal of the trees or ongoing pruning to ensure that the trees do not cause damage to property or injury to persons. This concern was raised after the failure of a branch from one of the trees onto her clothesline on a calm day approximately two and a half to three years ago. Approximately three months ago, in stormy conditions, another section of that same part of the same tree failed onto the property of Mr and Mrs Sheath. The applicant is concerned that this will continue to happen. The applicant is also concerned about comments made by arborists and others in reports that the failed branches contained termites and or 'dry rot' and that previous lopping has rendered the trees unsound and hazardous.

5 The trees were inspected from both properties. The trees are mature and appear to have been lopped more than 10 years ago. The actual time of lopping cannot be substantiated as both the applicant and the respondent purchased their properties about ten years ago and apart from some lopping of smaller branches by the applicant's son, no pruning has been carried out in the last ten years. The size of the trunks would suggest that the trees were planted soon after the completion of the house which dates from the early 1960s.

6 The lopping has resulted in the typical growth of vertical shoots, some of which have included bark. Some of the stubs showed signs of decay.

7 In the 10 years that the applicant has lived there, only two substantial branches have failed from only one of these trees, that being the tree in the north-western corner of 24 Beryl Street (to be known as Tree 1). There have been numerous smaller branches falling onto her property during that time but these were not stated to be of any significance. No failures have occurred from the other Liquidambar (Tree 2) despite there being branches on that tree that overhang the applicant's property.

8 The point of failure of the first branch indicates a failure due to included bark. Given that this happened on a calm day, the branch may have reached a length and weight that could no longer be supported by the weak attachment. The second branch that failed also had included bark. Ms Keast said that she thought the failure of the second branch from Tree 1 was due to the tree being struck by lightning during the storm. This may be the case although no other evidence of lightning strike was visible. The remaining stub appears to have some decay. On that same section of Tree 1 there are other branches with included bark.

9 The inspection of the trees from the applicant's property did not identify any other potentially problematic branches that were not visible from the respondent's property.

10 Under s.12 of the Act a number of matters must be considered. The relevant clauses are: (a) The trees are wholly located on the respondent's property. (e) The trees make a contribution to the scenic value of the land on which they are situated and were a reason why the respondent purchased the property. (j) This clause refers to any other matters that the Court considers to be relevant. In this instance, the actions of the person(s) who lopped (or allowed the lopping) the trees has created a situation where the structural integrity of some of the branches is in question.

11 Under s.10(2) of the Act, the Court must not make an order unless it is satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicants' property. In Yang v Scerri [2007] NSWLEC 592, a rule of thumb, which I consider is also appropriate here, puts the near future as being a period of 12 months from the date of the determination.

12 In this case, despite the lopping not being done by the current owner, she none-the-less has responsibility for the trees. However, despite the lopping, in the last 10 years, only 2 branches have failed, both of which from the same point on the same tree. Whilst only 2 branches have failed, they did cause damage to property and could have caused injury to persons. The structure of the remaining section of this branch and the leader from which it arises is of concern and in my opinion, could be the site of future failures.

13 The other exterior leaders and branches on both trees appear to be reasonably sound and unlikely to fail in the near future. There is no evidence to suggest that Tree 2 (the most southern of the two trees) poses any significant risk of failure in the near future as it is sheltered to the south by a large Kaffir Plum and to the north by Tree 1.

14 The orders of the Court are that the application is approved in part. The application to remove the trees is refused however some pruning of tree 1 is to occur. Specifically the orders are as follows: 1. The north-western leader of tree 1 (that being the tree in the north-western corner of 24 Beryl Street) is to be removed to the point identified in the photograph attached to the orders. 2. This work is to be carried out within 60 days of the date of these orders. 3. The work is to be carried out by an arborist with a minimum AQF level 3 qualification in arboriculture. The work must be performed in accordance with AS4373:2007 Pruning of Amenity Trees and the latest version of the WorkCover Code of Practice for the Amenity Tree Industry. The arborist must be appropriately insured. 4. This work is to be organised and paid for by the respondent. 5. The tenant is to be given sufficient notice.

15 No other formal orders are to be made for any other intervention in either tree however it is recorded in this judgement that the owners of 24 Beryl Street Coffs Harbour have given permission to their neighbours to remove branches which overhang their properties to as close as possible to the fence line and have allowed access for this to happen. [This is in accordance with the position of Coffs Harbour Council on these matters.] The permission for pruning is given on the following basis: (a) the owners and the tenants of 24 Beryl Street must be given at least 2 weeks notice of any pruning that the neighbours wish to carry out; (b) the pruning is to be done by an arborist with a minimum AQF level 2 qualification in arboriculture in accordance with AS4373:2007 and the WorkCover Code of Practice and with appropriate insurance. (c) The works (including the removal and disposal of the branches) are to be done at the neighbours' expense.

___________________ J Fakes Acting Commissioner of the Court

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