Warwick Metway Pty Limited v Defence Housing Authority [2007] NSWLEC 698

Land and Environment Court of New South Wales

CITATION : Warwick Metway Pty Limited v Defence Housing Authority [2007] NSWLEC 698

APPLICANT Warwick Metway Pty Limited PARTIES : RESPONDENT Defence Housing Authority

FILE NUMBER(S) : 20730 of 2007

CORAM: Thyer AC

KEY ISSUES: Trees (Neighbours) :- Pruning of Tree, damaged tree, removal of tree

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING: 16/10/2007

EX TEMPORE JUDGMENT DATE : 16 October 2007

APPLICANT Mr and Mrs Metway, litigants in person LEGAL REPRESENTATIVES:

RESPONDENT No appearance

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Thyer AC

16 October 2007

20730 of 2007 Warwick Metway Pty Limited v Defence Housing Authority

JUDGMENT

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

The consequence of the Court's decision 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 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 COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 concerning two trees located on a property at 16 Knightsbridge Avenue, Belrose (the property). The property is owned by Defence Housing Australia.

2 The trees are a Blue gum (possibly Eucalyptus saligna) and a Camphor laurel (Cinnamomum camphora).

3 The application has been made by Warwick Medway Pty Limited, a company in which Mr and Mrs Medway are directors. Warwick Medway Pty Limited is the owner of 4 Hampden Street, Belrose which is located to the north of the trees. 4 The application seeks orders from the Court that both trees be removed.

5 There was no appearance by a representative of the respondent, the Defence Housing Authority, at this hearing. The respondent was represented at the telephone conference held on 17 September and was made aware of the hearing date and time in directions given at that conference.

6 The relevant provisions of s 10(2)(a)&(b) of the Act require that the Court be satisfied that one or more of four conditions are met, with respect to each tree subject of an application, before the Court has jurisdiction to consider the application concerning that tree. These tests are: Has the tree caused damage to the applicant's property? Is the tree now causing damage to the applicant's property? Is the tree likely in the near future to cause damage to the applicant's property? Is the tree likely to cause injury to any person?

7 Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of: Is the damage or risk sufficiently serious to warrant the Court intervening? If so, what should the Court order? Who should pay to carry out those orders? 8 I have examined the Camphor laurel tree and reached the following conclusions with respect to it.

9 The Camphor laurel is a small tree having height of approximately of 5 m and canopy spread of approximately 5 m with multiple trunks.

10 It is growing in the backyard of 16 Knightsbridge Avenue, adjacent the common boundary fence with 4 Hampden Street. The tree is within 3 m of the corner of the house on 4 Hampden Street.

11 I have been advised by the Medways that stormwater drainage pipes and agricultural drainage pipes are located outside the corner of the house nearest the Camphor laurel tree, on 4 Hampden Street, and that blockage of those pipes is likely to cause flooding of the house. The letter on file from the applicant's property manager to Defence Housing Authority dated 12 February 2007 states "The owners of No. 4 Hampden Street Belrose have just spent a considerable amount of money on the drainage system at the property which had been damaged by root system from trees on 16 Knightsbridge Ave." Also, the letter on file from the applicant's solicitors to Defence Housing Authority states "the roots of the Camphor laurel tree have previously damaged drainage on our client's property and are potentially causing further underground damage to the property."

12 I therefore find that the roots of the Camphor laurel tree have damaged the drainage pipes, and present a sufficient risk of damage to the drainage pipes on the applicant's property in the near future, to satisfy the first and third tests in s 10(2)(a) of the Act.

13 I note the e-mail on file from Defence Housing Australia dated 3 October 2007, advising "staff have arranged lorrel removal and issued works to contractor". I have also been provided with an email from Defence Housing Australia dated 12 June 2007 to the applicant's solicitors, advising that an order was issued to a contractor to carry out pruning but that had not occurred and a new order had been raised. The applicants advise that there has been considerable delay in the carrying out of that pruning.

14 Considering the willingness of the respondent to remove the Camphor laurel tree, but noting the possibility of delays, I propose to order that the tree be removed within 30 days. 15 In relation to the Blue gum tree, I have examined it from 4 Hampden Street and from the front yard of 16 Knightsbridge Avenue. Access was not provided to examine the tree from the backyard of 16 Knightsbridge Avenue.

16 The Blue gum is a mature tree having height of approximately 18 metres, canopy spread of approximately 15 m and trunk diameter of approximately 1 m at 1.2 m above ground.

17 It is growing in the backyard of 16 Knightsbridge Avenue, approximately 1 m from the common boundary with 4 Hampden Street.

18 The tree appears to have good vigour.

19 There was no evidence provided or observed of live branch drop.

20 I observed two branch junctions in the Blue gum tree that may have serious structural weaknesses. These are the junction with the trunk of the second remaining branch from the base of the tree; and where the trunk forks at the forth junction above the ground to form two co-dominate branches of approximately 0.4 m in diameter. These branch junctions have serious bark damage and/or absence of bark.

21 The Medways advised that dead branches had fallen from the tree in the past, at least once per year during the last 10 years. Those branches were 50 to 75 mm in diameter and 2.0 to 3.0 m long. The Medways thought these branches fell at any time, not just in windy weather. 22 I observed recent pruning cuts in the tree and the Medways advised that that pruning had occurred since they made application to the Court. That pruning is substantial; including one branch of 0.4 m diameter, one branch of 0.3 m diameter, four branches of 0.12 m diameter, and two branches of 0.07 m diameter, pruned from the side of the tree facing No. 4 Hampden Street.

23 The Medways agreed that the recent pruning had removed the majority of the deadwood from the tree.

24 The Medways are however, still concerned about smaller deadwood remaining in the tree, and deadwood that may occur in the tree in the future.

25 I observed that there was still deadwood in the canopy of the tree overhanging the applicant's property.

26 The Medways are concerned that as the area under the tree is the only grassy play area for children in the backyard, even small falling dead branches present an on-going risk of injury.

27 I have noted the letters and emails on the file between Defence Housing Australia and the applicant's property manager and solicitor, that indicate there was reluctance on the part of Defence Housing Australia to do any pruning of the Blue gum tree. I also note the delay in carrying out of any pruning.

28 I find that the dead wood in the canopy of the Blue gum tree, and the indication of serious structural weakness in two major branch junctions of the tree present sufficient risk of injury to satisfy the test in s 10(2)(b) of the Act. 29 I therefore propose to order some ongoing management of the Blue gum tree.

30 The Blue gum tree shall be inspected by an experienced arborist (AQF Level 5 qualification or equivalent) within 30 days of the date of the Court's orders, and at intervals of not more than 2 years thereafter for as long as the tree remains.

31 The arborist shall provide a written report on the condition and safety of the tree including a maintenance program for the tree, within 14 days of each inspection. 32 The owners of the tree shall pay the cost of those inspections and reports.

33 The owners of the tree shall provide a copy of the inspection report to the owners of 4 Hampden Street, within 30 days of each inspection.

34 Pruning work recommended by each inspection shall be carried out within 30 days of the relevant inspection.

35 Regardless of any other recommendation of the inspecting arborist, all deadwood having a diameter of greater than 20 millimetres which is overhanging 4 Hampden Street shall be pruned out within 60 days of the Order's of the Court, and at intervals of not more than one year thereafter for as long as the tree remains.

36 If the arborist's report recommends removal of the Blue gum tree, the Defence Housing Authority shall provide a copy of that report to Warringah Council within 30 days of the date of the report, and the Blue gum tree shall be removed within 60 days of the date of the arborist's report.

37 However, I note that the Defence Housing Authority may apply to Warringah Council for removal of the Blue gum tree at any time, and may remove the tree if the Council grants consent.

___________________ P. Thyer Acting Commissioner of the Court ljr

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.