Land and Environment Court New South Wales Medium Neutral Citation: Marshall v Mar [2017] NSWLEC 1197 Hearing dates: 20 April 2017 Date of orders: 20 April 2017 Decision date: 20 April 2017 Jurisdiction: Class 2 Before: Fakes AC Decision: Tree removal ordered Catchwords: TREES [NEIGHBOURS] Potential injury; dead tree Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Category: Principal judgment Parties: Stephen Marshall (Applicant) Derek Mar (Respondent) Representation: Applicant: Stephen Marshall (Litigant in person) Respondent: Derek Mar (Litigant in person) File Number(s): 47186 of 2017 JUDGMENT 1. COMMISSIONER: The applicant has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of a dead tree located at the rear of the respondent's Illawong property. The orders are sought on the potential risk of injury arising from branches falling from the tree onto the applicant's property. 2. The respondent does not contest the removal of the tree and has sought and obtained permission from Sutherland Shire Council for its removal. 3. While the parties share a limited boundary, I am satisfied that the tree is a tree to which the Trees Act applies being situated on adjoining land. 4. In applications under Part 2, the key jurisdictional test is found in s 10(2). This states: (2) The Court must not make an order under this Part unless it is satisfied that the tree concerned: (a) has caused, is causing, or is likely in the near future to cause, damage to the applicant's property, or (b) is likely to cause injury to any person. 1. Damage to property is not pressed. 2. The tree in question is a large dead Eucalypt of unknown species. It is an advanced state of decline. It is inevitable that sections of it will fail as the wood deteriorates. 3. I am satisfied that s 10(2)(b) is met and the Court's jurisdiction to make orders is engaged. 4. The only way to abate the risk is to remove the tree. Leaving a stump of up to 3m will be sufficient to make it safe; however, there is nothing to prevent the respondent from removing the tree to ground level. 5. The Orders of the Court are: 1. Within 30 days of the date of these orders the respondent is to engage and pay for an arborist with a minimum qualification in Arboriculture of AQF level 3, and with appropriate insurance cover, to remove the tree to a height of 3m or less. 2. The work is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry or its equivalent. 3. Should it be required, the applicant is to provide all necessary access on reasonable notice for the purpose of quoting and for the safe and efficient carrying out of the works in (1). _______________________ Judy Fakes 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: 21 April 2017