Duncan & anor v Osland [2013] NSWLEC 1136

Land and Environment Court New South Wales

Medium Neutral Citation: Duncan & anor v Osland [2013] NSWLEC 1136 Hearing dates: 23 July 2013 Decision date: 23 July 2013 Jurisdiction: Class 2 Before: Fakes C Decision: Application upheld; tree to be removed; compensation for damage Catchwords: TREES [NEIGHBOURS] Damage to property; possible injury; compensation for damaged property Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Ghazal v Vella (No. 2) [2011] NSWLEC 1340 Category: Principal judgment Parties: Mr G & Mrs S Duncan (Applicants) Mr G Osland (Respondent) Representation: Applicants: Mr G & Mrs S Duncan (litigants in person) Respondent: Mr G Osland (Litigant in person) File Number(s): 20322 of 2013

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1COMMISSIONER: This is an application pursuant to s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owners of a property in Rathmines against the owner of a tree growing on an adjoining property. 2The applicants are seeking orders for the removal of dead wood from the tree or the removal of the tree on the basis that falling dead wood has caused damage to the roof of a freestanding rumpus room and could continue to do so. They are also concerned that falling branches may injure someone. 3The respondent has no objections to removing the tree but was under the impression that permission was required from the local council. 4In applications under Part 2, the key jurisdictional test is found in s 10(2). This states that 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. 5The tree in question is an over-mature/ senescent Eucalypt. Its size and location suggest that it is a remnant of the original bushland. It is located in the rear north-eastern corner of the respondent's property. It partially overhangs the applicants' property to the east and another property to the north. 6Photographs in the application claim form, verified on site, show that most of the upper canopy of the tree is dead. The remaining foliage is on lower branches and there is a significant proportion of epicormic growth on some of those living branches. There are some small hollows in the tree. The respondent stated that the tree has been in this condition for some time. 7During Easter 2013, a dead branch fell from the tree onto the roof of the rumpus room below. It created a 400 mm long crack in the metal sheeting. The respondent was advised of the damage shortly after it happened. A letter in the claim form indicates that the respondent was advised of the problem with the tree in 2010. 8I am satisfied that the tree caused the damage to the applicants' roof, and that given its condition, it could in the near future cause damage to the applicants' property and it could cause injury to anyone on any property which it overhangs. 9Therefore as s 10(2) is satisfied, the Court's jurisdiction to make orders under s 9 of the Act is engaged. 10While the tree is likely to contribute to biodiversity and to the local ecosystem, particularly by providing hollows, its condition is such that the removal of dead wood, while possible, is impractical and not cost-effective. Therefore, with the expertise I bring to the Court, I have determined that the tree should be removed. 11Given the presence of hollows, the orders will include a requirement for the tree to be thoroughly inspected for the presence of wildlife and any wildlife found is to be placed in the care of an appropriate wildlife agency such as WIRES. The arborist undertaking the removal is to notify the nearest agency of the date of the work and have arrangements in place should wildlife be found. 12It is sufficient for the tree to be removed at the point at which the main trunk divides into 3 stems. This is just above a nest box that is fixed to the tree. The trunk must be treated to prevent any re-growth. 13In regards to the compensation, the applicants have approval from their insurance company to proceed with the repairs. They have a quote of about $1,500 for the work. The excess on their insurance policy is $1000. In the circumstances, especially as the respondent was aware of the condition of the tree, it is reasonable that the respondent should reimburse the applicants the cost of their excess. 14Should either party be interested, the respective roles of a local council and the Court in regards to tree matters is discussed in Ghazal v Vella (No. 2) [2011] NSWLEC 1340. 15Having considered the evidence, the Orders of the Court are: (1)The application is upheld. (2)Within 30 days of the date of these orders, the respondent is to engage and pay for an AQF level 3 arborist to remove the tree to a point no higher than where the main trunk divides into three stems. The trunk is to be treated so as to prevent any suckering. (3)The arborist is to liaise with the nearest wildlife carer and inform them of the date of the scheduled removal. A rescue plan must be in place should any wildlife be found. (4)Prior to any cutting, the arborist must thoroughly inspect all hollows for the presence of wildlife. Should any be found, the wildlife carer is to be notified and any rescue plan implemented. (5)The work is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry. (6)After the tree is removed, the applicants are to have the roof repaired through their insurer. The applicants are to obtain a statement from the insurance company detailing the amount of the excess payable. (7)Within 30 days of the receipt of the statement of excess from the applicants' insurer, the respondent is to reimburse the applicants that sum. The amount payable is limited to $1000. ___________________________ Judy Fakes 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: 24 July 2013