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2 gorgeous Gums in Dulwich Hill

The story goes like this –

In the yard of a home owned by public housing was an 18 metre tall Grey Gum (Eucalyptus punctata) with a 14 metre wide canopy.  Next door lived Ms R in a home also owned by public housing. The tree’s branches overhung the driveway. The tree had dropped some branches over the years. Ms R had asked the Department of Housing to remove the tree & the tree was trimmed a couple of times. During a storm branches fell from the tree breaking a couple of windows.

In 2005 the Department of Housing applied to the local Council for permission to remove the tree because it was unstable.  The Council’s Arborist inspected the tree & did not approve removal because the tree was in a sound/stable condition & removal was inconsistent with the Council’s Tree management Plan.  The Arborist said he had no objection to pruning deadwood & to thin the crown by 15%, but without height reduction.

In December 2005 Ms R was hit by a branch or dead wood. She sued Council & the Department of Housing for negligence.  Her consultant Arborist thought the Council’s Arborist did “not consider the intrinsic nature of Eucalypts to unpredictably shed dead branches or live branches that have been damaged,” & that the tree “will provide an ongoing source of potential hazard,” & “despite any further remedial pruning, it will continue to pose an unacceptable & ongoing risk of hazard to the safety of people & damage to property.”

Another 2 lovely Gums in Smidmore Street Marrickville

The District Court did not award Ms R damages. She appealed. On 13th September 2010 the NSW Court of Appeal delivered judgement (Rhodes v Lake Macquarie City Council & another [2010] NSW Court of Appeal 235).

The Court noted Council’s evidence that this particular species drop deadwood, but did not think Council was negligent in its decision that the tree should stay.

The Court said Council’s Tree Management Policy “favours retention of native trees, including trees such as Grey Gums which produce deadwood & drop branches; and that substantial justification is required for consent to be given for removal of such trees.”

To find the authorities negligent “the risk of substantial damage to property or significant injury to a person would be required.”

The Court acknowledged the accident was unfortunate for Ms R, but concluded “the history of 2 broken windows, some broken tiles & 1 very minor injury to a person, over a period of about 6 years, was not such to suggest that this tree was any more dangerous than the general run of such trees.”

Gum trees in Enmore

The injury to Ms R is regrettable, but one must acknowledge the Council’s policy that encourages the maintenance of tall Eucalypts with wide canopy is of great social utility.   Also, the Court’s endorsement of policies that say trees should prevail despite some risks naturally present. This decision is significant in this era of climate change when having trees has become more important than ever.  I hope that Councils take courage from this judgement & not go about chopping trees down unless they present significant risks.

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