ON 31 AUGUST 2007, the NSW Land and Environment Court delivered Yang v Scerri [2007] NSWLEC 592 (31 August 2007).

http://www.austlii.edu.au/au/cases/nsw/NSWLEC/2007/592.html

Ms Yang made an application to the court pursuant to the Trees (Disputes Between Neighbours) Act 2006 (“the Act”) seeking orders for the removal of a Sydney Blue Gum (Eucalyptus saligna) situated near her common boundary with Mr Scerri.

The court considered clause 10(2) of the Act, which provides:

“(2) The Court must not make an order under this Part unless it is satisfied that the tree concerned:

(a) has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or
(b) is likely to cause injury to any person.”

The court was not satisfied that the tree should be removed.

The following remarks were made regarding the tree dispute principle:

“12 The third of the tests in cl 10(2)(a) of the Act requires a consideration of whether any property damage is “likely in the near future”. This requires an assessment of both the probability of damage being caused (“likely”) and the timeframe within which it would occur (“in the near future”). This Tree Dispute Principle only addresses the second of those assessments. Questions of probability will require consideration of a wide range of matters specific to the particular tree and its context. These will include the species, age and condition of the tree and any matters arising out of its location such as the property (both real and personal) in the area near the tree.

13 The term “in the near future” is not defined in the Act. The phrase has its ordinary meaning of “close in time” (see Macquarie Dictionary, definition 11). It is desirable to adopt a “rule of thumb” that will provide some consistency in the application of this requirement.

14 Ordinarily, the near future would involve a time period extending from the date of determination of the application to 12 months. After 12 months, it would be difficult to describe a period as being “in the near future” or being close in time to the date of determination of the application. We say “ordinarily” because there may be, in the particular circumstances of the case, reason to adopt a longer period than 12 months. The adoption of a 12 month rule of thumb period means that in order to satisfy the third test in s 10(2)(a), the tree concerned would need to be likely to cause damage to property within a period of 12 months after the date of determination of the application. If it is not likely to do so within that period but rather in a longer period, the third test in s 10(2)(a) could not the satisfied and the Court would have no power to make an order in relation to the tree (assuming that no other test under s 10(2)(a) or (b) is satisfied). This would not prevent a further application being made in the future if the tree concerned becomes likely, in a future period beyond 12 months, to cause damage to property.”

The court made the following orders:

A) The application is upheld, in part.
B) The respondent is to undertake the following works:
1. All dead wood within 3 m of the common boundary with 3 Russell Street, Eastwood and is greater than 30mm in diameter be removed from the tree,
2. An aerial inspection of the tree for any defective branches be undertaken within 60 days from the date of this Order and annually after this time. Any defective structural branches within 3 m of the common boundary with 3 Russell Street are to be removed at the time of the aerial inspection. Any defective structural branches are those that are highly likely to fail within a 12-month period,
3. All broken limbs are to be removed in accordance with Australia Standard 4373 – 2007,
4. Such annual inspections and pruning are to be undertaken by an AQF level 3 Arborist with appropriate insurances and in accordance with Australia Standard 4373 – 2007,
5. The tree is to be inspected annually for termite infestation at around the same time as the aerial inspection of the tree,
6. The owner of the Tree will be required to provide a written report to the Owners of Strata Plan 43555 within 14 days of the carrying out of such annual inspection for defective branches and termite infestation so that the Owners of Strata Plan 43555 can be aware of that inspection and can monitor the removal of any defective branches and dead wood required to be removed, and
7. All work ordered to be undertaken is to be paid by the owners of the tree.

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