Gounakis v Ward [2014] NSWLEC 1243

Land and Environment Court New South Wales

Medium Neutral Citation: Gounakis v Ward [2014] NSWLEC 1243 Hearing dates: 25 November 2014 Decision date: 25 November 2014 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is upheld in part. See orders at paragraph (11) Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage to property; risk of injury; application upheld in part; orders for pruning Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: Emmanuel Gounakis (Applicant)

James Ward (Respondent) Representation: Emmanuel Gounakis, litigant in person (Applicant)

James Ward, litigant in person (Respondent) File Number(s): 20722 of 2014

Judgment

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

Background 1A large Sydney Blue Gum (Eucalyptus saligna) grows in the rear garden of a residential property in Blakehurst. The tree was there when Mr Ward ("the respondent") purchased the property some 15 years ago. The tree is more than 20 metres tall and its large canopy overhangs Mr Ward's garden, as well as the gardens of properties to his south, southeast and east. 2Mr and Mrs Gounakis have owned and lived at the property to the south for almost two years. They have young children who play in their garden. They say families in the other neighbouring properties also have children. In the time they have lived here several limbs have fallen from the Sydney Blue Gum into their garden, and on one occasion some lights in the garden were damaged. They are concerned about further damage; but mostly due to their concerns of injury to children, they have tried to negotiate the tree's removal with Mr Ward. Unable to reach a satisfactory outcome, Mr Gounakis ("the applicant") has now applied to the Court for orders pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 ("the Trees Act") for the tree to be removed. He does not claim any compensation.

Does the Court have jurisdiction to make orders? 3The hearing took place on site. The Sydney Blue Gum is relatively healthy. Long limbs from the tree extend above the applicant's garden and above the garden to the east of Mr Ward's. Although there are no apparent major structural defects, some limbs are overextended and there is some deadwood present in the crown. 4Mr Ward argues that the tree has been pruned regularly, although Mr Gounakis disputes this. Following observations made during the hearing, I am satisfied that the tree has been pruned in the time that Mr Ward has owned his property. 5At its base, the tree is close to a gas pipe and gas pool heater on Mr Ward's property. There is no apparent damage to this infrastructure. Mr Gounakis suggested at the hearing that the tree may damage gas pipes. He points to the recent permit for tree removal, issued by Kogarah Council, which mentions proximity to the gas pipe as a consideration in granting the permit. However there is no sign of damage to gas pipes. Furthermore, all gas infrastructure is on Mr Ward's property, not on the applicant's property, so damage to this property would not enliven the Court's jurisdiction at s 10(2)(a) of the Trees Act. The risk of injury resulting from a gas explosion, which is what I believe the applicant is inferring to be possible, could enliven the Court's jurisdiction at s 10(2)(b) of the Trees Act. However there is nothing to suggest that any damage is likely to be caused to gas pipes by the tree in the near future, a period for which the Court has consistently considered to be 12 months as a rule-of-thumb since Yang v Scerri [2007] NSWLEC 592. Again, this does not enliven the Court's jurisdiction. 6Limbs that have fallen into the Gounakis' garden have included live limbs as well as dead ones, the larger ones being alive. Evidence of this is provided through photographs of a limb that fell several months ago and was approximately 200 mm in diameter. Smaller limbs that fell approximately two weeks ago have been retained in their garden and are up to 50 mm in diameter. They have fallen from a considerable height. I am satisfied, considering the form of the crown at the time of the hearing, that further limb failures are likely in the next 12 months, and that they may cause injury to the applicant's family or visitors as well as to people on the property to Mr Ward's east. Further, I am satisfied that such risk of injury is present to the extent that the Court's jurisdiction is engaged with regard to the tree at s 10(2)(b) of the Trees Act.

Does the tree require removal? 7Bringing my own arboricultural experience to the matter, I do not find that tree removal is required. The risk of injury can be minimised by selective and ongoing pruning. Several overextended limbs require removal now. The limbs overhang the applicant's garden and the garden of the property to Mr Ward's east. They are long limbs with significant end-weight, and are closer to horizontal than other limbs. Deadwood requires removal now and at regular intervals.

Who should pay for the works? 8The applicants, along with other neighbours, have negotiated previously with Mr Ward in an attempt to obtain permits for tree pruning or removal. Negotiations have included offers to share the cost of the works. The permit that Mr Ward currently holds for removing the tree apparently resulted from another neighbour applying, with Mr Ward's permission, to remove the tree. 9Mr Ward argues that, according to Kogarah Council's own rules, the applicant could prune the tree at his own expense. Mr Gounakis says that this is not as straightforward as it sounds - access to Mr Ward's property would be required, and this cannot be assured. He says Mr Ward has been obstructive in the past. 10The tree belongs to Mr Ward and poses a risk of injury to others. The applicant's actions have not contributed to or increased that risk. The tree is Mr Ward's responsibility and he shall bear the cost of the works. Despite the orders made below, there is nothing to prevent Mr Ward removing the tree if he holds a permit to do so from Kogarah Council and should he decide to do so.

Orders 11Therefore the Orders of the Court are: (1)The application is upheld in part. (2)Within 30 days of the date of these orders the respondent is to engage and pay for a suitably qualified arborist (minimum AQF level 3), with all appropriate insurances, to carry out the following pruning works on the large Sydney Blue Gum on the eastern side of his rear garden: 1.On the southern side, reduce the limb to the west, pruning it back to the first upright lateral branch (see #1 on attached photographs); 2.On the southern side, remove the limb to the east, pruning it back to its branch collar at its point of attachment (see #2 on attached photographs); 3.Remove the long stub to the southeast, left from previous lopping works, back to its branch collar (see #3 on attached photographs); 4.Remove the long limb to the northeast, back to its branch collar (see #4 on attached photographs); and 5.Remove all deadwood >30mm diameter from the tree's crown. (3)The works in (2) are to be done in accordance with the guidelines of AS4373 Pruning of Amenity Trees (and so climbing spurs are not to be used) and the Workcover Code of Practice for the Amenity Tree Industry. (4)Every two years during November, beginning 2016, the respondent is to engage and pay for a suitably qualified arborist (minimum AQF level 3), with all appropriate insurances, to remove deadwood >30mm diameter from the tree's crown. (5)The works in (4) are to be done in accordance with the guidelines of AS4373 Pruning of Amenity Trees (and so climbing spurs are not to be used) and the Workcover Code of Practice for the Amenity Tree Industry. (6)The respondent is to give the applicant, and the owner of the property to his east, at least 7 days' notice of the works in (2) and (4). (7)The applicant is to allow any access required for the pruning ordered above during reasonable hours. ____________________________ D Galwey Acting Commissioner of the Court Photographs for pruning orders

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Amendments 26 November 2014 - file number amended Amended paragraphs: coversheet 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: 26 November 2014