Land and Environment Court New South Wales Medium Neutral Citation: Tulloch v Dight [2012] NSWLEC 1099 Hearing dates: 27 April 2012 Decision date: 27 April 2012 Jurisdiction: Class 2 Before: Galwey AC Decision: (1)The application to remove the trees is upheld. (2)The respondent is to remove both trees to no more than 400 mm above ground level within seven days of the date of these orders. (3)The works in (2) are to be done by a suitably qualified arborist (minimum AQF level 3) in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry. (4)The parties are to engage the fencing contractor as per the quote of A Grade Fencing dated 4 April 2012, or another contractor as agreed by the parties, to replace the 15.5 metre section of fence along the common boundary within 60 days of the date of these orders. (5)The costs for the works in (4) are to be paid by the parties as follows: the applicant is to pay 35% and the respondent is to pay 65%. (6)If Mrs Tulloch incurs the $1,000 excess related to the insurance claim she is to provide the respondent with written evidence of its payment. (7)The respondent is to pay the applicant $1,000 within 14 days of receiving written evidence described in (6). (8)If written evidence described in (6) is not provided to the respondent within 12 months of the date of these orders, order (7) lapses. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS): damage to property; risk of injury; removal ordered; replacement of fence; compensation ordered Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Dividing Fences Act 1991 Category: Principal judgment Parties: Catherine Tulloch (Applicant) Deane Dight (Respondent) Representation: Catherine Tulloch (Applicant in person) Andrew Simpson (Respondent) Pikes Lawyers File Number(s): 20081 of 2012 Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1ACTING COMMISSIONER: Mrs Tulloch seeks the removal of two trees, both Silky Oaks, and compensation for damage to her dwelling caused by these trees. She also seeks the cessation of dumping of lawn clippings along a fence, and repair or replacement of the fence. The application is made under the Trees (Disputes Between Neighbours) Act 2006 (the Act). 2The respondent, Mrs Dight, lives abroad but does not oppose tree removal. In fact the onsite hearing was accompanied by the sound of chainsaws as a tree crew engaged by the respondent's agent undertook their removal. Her representative, Mr Simpson, contests the amount of compensation and questions the Court's jurisdiction over some of the claims. 3I must determine if the trees caused damage and, if so, what orders as described by s 9 of the Act would be appropriate. If the trees caused damage to the fence the Court has jurisdiction to make orders under s 13A of the Dividing Fences Act 1991. 4However lawn clippings are not trees and I have no jurisdiction to make any orders for anybody to cease dumping them. Consequently, that element of the application is dismissed. Background 5The two Silky Oaks have grown on the respondent's land for many years. They are near the common boundary between the applicant's and respondent's properties. According to Mrs Dight's arborist, Ian English, they suffered root loss in the mid-1990s when Mrs Tulloch constructed her dwelling. Mrs Tulloch had all permits for the works carried out. 6Ian English assessed the trees in 2008 and, while also providing alternative management options such as pruning, recommended the trees be removed. Mrs Dight did not have the trees removed. 7Mrs Tulloch first brought her concerns regarding the trees to the respondent's attention a few years ago. More recently she sent emails to the respondent's agent who manages the property. Records of emails submitted by Ms Tulloch show that she repeatedly requested action on 9 November 2011, 28 November and then again on 3 January 2012 after a limb fell onto her dwelling. 8A branch fell from one of the trees on 3 January 2012, causing damage to roof tiles on Mrs Tulloch's dwelling. Her insurer had the damage repaired at a cost of $2,145.20 to the insurer. The insurer sent Mrs Tulloch correspondence showing that she would have to pay the $1,000 excess as per her insurance policy. Does the Court have Jurisdiction? 9Mrs Tulloch submitted photographs showing the tree limb that fell and the damaged tiles. The respondent does not dispute that the trees have caused damage to both the dwelling roof and the fence. The Court's jurisdiction is enlivened for both trees. Matters to consider under s 12 of the Act 10Before making any orders I am to consider the matters listed in s 12 of the Act. Both trees are close to the common boundary and overhang Mrs Tulloch's dwelling. Both trees are dead and provide little value in regard to amenity or the environment. A permit is not required for their removal. The applicant took reasonable steps to alert the trees' owner to the hazard. The respondent did not take reasonable steps to remove the hazard before any damage was caused. Findings 11It is clear that both trees are hazardous and their removal is required to prevent further damage occurring. Although the trees are being removed as the hearing takes place, without orders from the Court there would be nothing to ensure that the works are completed. Therefore orders for removal will still be made. 12Mrs Dight had time to take action after being alerted of the trees' poor condition. As a property owner she has certain responsibilities. If she was unable to be contacted or communicate any decisions due to her remote posting, her agent should have the authority to act on her behalf. No action was taken within a reasonable timeframe before the damage occurred. Mrs Tulloch cannot be expected to be out of pocket for the damage. Although she has a letter showing she owes her insurer the $1,000 excess, it is not clear if her insurer is going to pursue the damage costs from Mrs Dight's insurer, in which case, if they were successful, they may return the excess amount to Mrs Tulloch. Mrs Tulloch rang here insurer during the hearing and was informed that the excess will be temporarily suspended until they finalise the claim. Therefore orders for compensation will be made so as to avoid the possibility of Mrs Tulloch receiving $1,000 from both the respondent and the insurer. The fence along the common boundary 13Both parties agree it is likely that the tree has damaged the fence, and I accept this. Under s 13A of the Dividing Fences Act 1991 this Court therefore has jurisdiction to make orders regarding repairs or replacement of the fence, and apportionment of payment for those works between the parties. 14Mrs Tulloch included a quote for fencing works with her application. A Grade Fencing Contractors provided a quote dated 4 April 2012 with two options: repair of the damaged section at a cost of $850; or replacement of the 15.5 metre section of fence along this part of the common boundary at $1,315 plus extras for obstruction by rocks and so on. Removal of the old fence was quoted at $200. Both parties agree that it would be preferable to replace the entire section of fence due to its dilapidated state. 15Mrs Tulloch submits that the respondent should pay the equivalent of the repair costs with the remainder of the replacement costs being split between the parties. Mr Simpson, for the respondent, accepts that the respondent should pay more than half as her trees have damaged the fence; however he argues that the applicant's proposal is excessive and that it would be reasonable to split the replacement costs 60/40. 16My own view is that the tree has damaged approximately 30% of this section of the fence, for which the respondent should pay. The remaining cost (70%) should be split evenly between the parties. Therefore the respondent should pay 65% (30% + 35%) and the applicant should pay 35%. Conclusions 17Both trees have caused damage to the dwelling and fence. The trees are dead. The trees' owner was alerted to the risk and had opportunity to remove them prior to the damage. The respondent should not suffer a material loss as a result of the trees. At the time of the hearing it was unclear whether she would be required to pay her insurer the $1,000 excess. 18The trees need to be removed to prevent further damage. By the end of the hearing one tree was almost entirely removed and the other tree was still standing, with some limbs removed. Orders for removal are therefore still applicable. 19The Court has no jurisdiction over grass clippings. The Court has jurisdiction over the fence. As the respondent's trees have caused damage to a section of the fence, she will pay a greater portion of its replacement costs. Orders 20Considering all of the foregoing, the orders of the court are: (1)The application to remove the trees is upheld. (2)The respondent is to remove both trees to no more than 400 mm above ground level within seven days of the date of these orders. (3)The works in (2) are to be done by a suitably qualified arborist (minimum AQF level 3) in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry. (4)The parties are to engage the fencing contractor as per the quote of A Grade Fencing dated 4 April 2012, or another contractor as agreed by the parties, to replace the 15.5 metre section of fence along the common boundary within 60 days of the date of these orders. (5)The costs for the works in (4) are to be paid by the parties as follows: the applicant is to pay 35% and the respondent is to pay 65%. (6)If Mrs Tulloch incurs the $1,000 excess related to the insurance claim she is to provide the respondent with written evidence of its payment. (7)The respondent is to pay the applicant $1,000 within 14 days of receiving written evidence described in (6). (8)If written evidence described in (6) is not provided to the respondent within 12 months of the date of these orders, order (7) lapses. 21The Court notes that as at 27 April 2012 Mrs Tulloch's insurer has temporarily suspended the excess until the claim is resolved. D Galwey Acting Commissioner of the Court ********** 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: 04 May 2012