Daley & anor v Murray [2015] NSWLEC 1489

Land and Environment Court New South Wales

Medium Neutral Citation: Daley & anor v Murray [2015] NSWLEC 1489 Hearing dates: 25 November 2015 Date of orders: 25 November 2015 Decision date: 25 November 2015 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is upheld. See orders at paragraph 15. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage by a fallen tree; risk of damage and injury; orders for tree removal; consent orders. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Category: Principal judgment Parties: Anthony Daley (First Applicant) Bronwyn Daley (Second Applicant) Catherine Murray (Respondent) Representation: Anthony Daley, litigant in person (First Applicant) Bronwyn Daley, litigant in person (Second Applicant) Catherine Murray, litigant in person (Respondent) File Number(s): 20869 of 2015

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Background 1. Prior to a severe storm in April 2015, Ms Murray ('the respondent') had three Spotted Gums standing in her back garden. After the storm she was left with two. The tree that fell during the storm caused damage to neighbouring properties, including to parts of the Daley's dwelling and surroundings, and to the fence on their common boundary. Pursuant to Part 2 of the Trees (Disputes Between Neighbours) Act 2006 ('the Trees Act') Mr and Mrs Daley ('the applicants') applied to the Land and Environment Court seeking orders for the remaining two trees ('the Trees') to be removed. They do not seek compensation for damage to their property, only for Ms Murray's share of repairs that they have carried out to the fence on the common boundary and for some costs associated with making their application. 2. The Daleys engaged arborist Mark Bury to assess the two remaining Trees and write a report. Mr Bury concluded that the Trees are stressed and that they grow in disturbed soils that may not be structurally suitable for supporting the Trees. Mr Bury assigned risk ratings to the Trees using two methods of risk assessment: Quantified Tree Risk Assessment (QTRA) and the Tree Risk Assessment Qualification (TRAQ). Mr Bury did not include any methodology, observations or workings to show how he arrived at the ratings, so they are of little assistance to the Court. 3. Ms Murray obtained advice from William Jones of Tree and Garden Services. Mr Jones wrote on a quote that the Trees were "not imminently dangerous under normal weather conditions" but recommended "they be removed within the next 3 months." Mr Jones quoted $3,091 to remove the Trees to "close to ground level". 4. The parties are agreed that the Trees need to be removed. Ms Murray intends to remove the Trees but due to financial circumstances her proposed timeframe to achieve this is approximately 12 months. The Daleys are concerned that the Trees may fall before then and seek orders for their earlier removal.