Owners Corporation SP11222 v Jones [2010] NSWLEC 1327

Land and Environment Court of New South Wales

CITATION : Owners Corporation SP11222 v Jones [2010] NSWLEC 1327

APPLICANT The Owners Corporation SP11222 PARTIES : RESPONDENT Mr Colin Jones

FILE NUMBER(S) : 20585 of 2010

CORAM: Fakes C

KEY ISSUES: TREES (NEIGHBOURS) :- damage to property; injury to persons; removal of tree ordered

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 Dividing Fences Act 1991

DATES OF HEARING: 24/11/10

EX TEMPORE JUDGMENT DATE : 24 November 2010

APPLICANT Ms G Leigh [agent] LEGAL REPRESENTATIVES:

RESPONDENT Mr C Jones [litigant in person]

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Fakes C

24 November 2010

20585 of 2010 The Owners Corporation SP 11222 v Jones

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 COMMISSIONER: This is an application pursuant to Part 2 s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the Owners Corporation SP11222 against the owner of tree growing on an adjoining property in Summer Hill. 2 The applicant is seeking the removal of the tree as they contend that the tree has caused damage to the timber dividing fence between the properties and to parked cars. In addition they content that branches falling from the tree have caused, and could continue to cause, injury to any person. 3 The original application includes a claim for damages to a concrete carpark however at the directions hearing it was determined that the car spaces were not common property and such a claim would require applications from the individual owners. Therefore the matter heard today relates only to the fence, past damage to parked cars and the risk of injury to persons. 4 The respondent wishes to retain the remaining live portions of the tree as it provides a visual buffer between his property and a nearby residential flat building. 5 The tree is a mature Eucalyptus microcorys (Tallowwood). It is growing at the rear of the applicant's property close to the dividing fence. Part of the tree overhangs part of the car park used by the residents of the unit block. 6 The tree is in poor condition with less than 20% of the canopy still alive. There is evidence that some of the dead branches have failed and others are deteriorating. 7 The tree supports a Bougainvillea. Part of this climbing plant has been severed although some sections are still alive and flowering. Parts of the cut Bougainvillea remain caught in the tree. 8 The tree and the vine provide physical support for the dead trunk of a nearby tree. This trunk is in a very degraded condition and without the support of the vine it is likely to collapse. 9 Most of the remaining living portion of the Eucalypt overhangs the applicant's carpark as do some of the dead branches. 10 The fence is a timber paling fence in poor condition. A number of the posts have decayed and the cross-members are in a similarly poor condition. Nails have rusted and palings are loose. 11 The base of the tree has slightly displaced 3 palings. 12 Under s 10(2) of the Act, the Court must not make an order unless it is satisfied that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant's property or is likely to cause injury to any person. 13 Section 9 of the Act gives the Court discretion in the type of the orders it may make. 14 With respect to the fence, whilst the tree may have contributed to the displacement of a very small portion of the fence, its age and material are the primary reasons for its condition. Therefore as a matter of discretion, no order will be made for any contribution to the fence as a consequence of this application under the trees Act. This does not preclude any agreement that may be reached between the parties for the usual sharing of costs in line with the Dividing Fences Act 1991. 15 Therefore, this element of the application is dismissed. 16 With respect to the damage to parked cars and the alleged injury caused to a child by falling branches, while there is no photographic evidence of these events, the evidence in the application is uncontested. 17 While the living portion of the tree appears healthy, the majority of the tree is dead and deteriorating and could therefore continue to fail and potentially cause damage or injury, including injury to anyone on the respondent's property. 18 Therefore as at least two of the tests under s 10(2) are satisfied, the jurisdiction is enlivened and the Court may make an order. 19 In making an order, the Court must consider a number of matters under s 12 of the Act. The relevant clauses in this case are: (a) The tree is wholly located on the respondent's property. (c) The respondent states that the property on which the tree is growing is a locally listed heritage item however no evidence was produced to support that contention or to provide details as to whether the listing includes the tree. (d) The tree is likely to contribute to biodiversity and to the local ecosystem. (e) The tree and the vine growing in the tree do provide a visual screen between the respondent's property and a nearby block of flats. 20 I have considered the condition of the tree and whilst the respondent wishes to retain the living portion of the tree and is willing to have the dead parts removed, in my view the entire tree should be removed. The retention of the living portion will inevitably leave large wounds on the tree and the remaining portion is unlikely to sustain the tree in the longer term. It is also more practical and cost-effective to remove the entire tree at this time. 21 The removal of the tree will also require the removal of most of the Bougainvillea and the nearby dead trunk. It may be possible to retain some of the Bougainvillea however this is likely to be physically and practically difficult for the arborist to do. It may re-sprout from the stump however I consider that the practical effect of the removal of the tree is the removal of the Bougainvillea. 22 There is no vehicular access to the tree from the respondent's property and all material would need to be cut into small sections to remove it from that property. This would significantly add to the cost of the tree's removal. The most practical access is from the applicant's property. It would be unreasonable in the circumstances for the work not to be carried out from the applicant's property. 23 Therefore as a result of the forgoing, the Orders of the Court are: 1. The application to remove the tree is upheld. 2. The application for compensation for the fence is dismissed. 3. The respondent is to engage and pay for an AQF level 3 arborist to remove the tree to 200mm below ground level. The dead trunk is to be removed to ground level. Should the respondent wish to retain the Bougainvillea it is to be removed to a practical height above ground level. 4. These works are to be completed within 30 days of the date of these orders. 5. The works are to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry. 6. The applicant is to provide access for these works to be carried out from the car park adjoining the respondent's property. 7. The respondent is to give the applicant's managing agent at least 3 working days notice of the commencement of the works. 8. The managing agent is to ensure that all residents are notified and the site is accessible and free of parked vehicles.