Krauth v Schneider [2017] NSWLEC 1517

Land and Environment Court New South Wales

Medium Neutral Citation: Krauth v Schneider [2017] NSWLEC 1517 Hearing dates: 19 September 2017 Date of orders: 19 September 2017 Decision date: 19 September 2017 Jurisdiction: Class 2 Before: Fakes AC Decision: See [13] Catchwords: TREES [NEIGHBOURS] Damage to property; potential injury; compensation; procedure Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Turner v O'Donnell [2009] NSWLEC 1349 Category: Principal judgment Parties: Nhan Krauth (Applicant) Hans Schneider (Respondent) Representation: Applicant: Ms N Krauth (Litigant in person) Respondent: Ms V Grill (Agent) File Number(s): 251284 of 2017

JUDGMENT 1. COMMISSIONER: On 17 August 2017 the applicant filed a Class 2 application, pursuant to s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act), seeking the urgent removal of a large Eucalyptus saligna (Sydney Blue Gum) from the respondent's land. The urgent nature of the request was due to the advanced state of its decline and the potential risk to the applicant's property or death or injury to anyone on her property. 2. Apart from the removal of the tree, the applicant seeks orders for compensation of $6600 for roof and ceiling repairs said to have been required after a branch fell from the tree onto the roof of the applicant's dwelling in April 2015. 3. Section 8 (1) of the Trees Act states that an applicant for an order under Part 2 must give at least 21 days notice of the lodging of the application to the respondent and, in essence, to the local council or relevant authority. Section 8(3) permits the Court to waive or vary the requirement to give notice within 21 days if it thinks it is appropriate to do so. 4. Photographs in the application claim form show a large dead tree, part of which appears to overhang the applicant's dwelling. On the basis of these photographs, the Court applied s 8(3) and expedited the matter. Directions were given in the usual format however the timetable for the filing and serving of additional material was compressed. 5. The matter was held on site on 19 September 2017. 6. During the course of the hearing the applicant produced a letter from Fox Stannard Lawyers written to the respondent. The letter (Exhibit B) was not in the Court file although the respondent had received it. The letter seeks to extend the claim to cover replacement of a section of dividing fence and adjust the compensation claim to $3195 to cover three excess insurance payments of $500, and half the cost of replacing the section of dividing fence. The letter also states that Fox Stannard Lawyers are instructed to seek a four week adjournment of the matter on certain conditions. 7. Apart from the request to vacate the hearing date not being made in the usual manner, or the failure to formally seek to amend the Class 2 application, given the fact that the Court had gone to significant effort to expedite the proceedings, the request to adjourn was denied. The other points of claim are considered below. 8. The applicant additionally seeks reimbursement of $780 for legal fees. In this regard, Commissioners of the Court do not have the jurisdiction to order payment of legal costs, costs of expert reports, application fees and the like. If sought, claims for these costs must be made by a Notice of Motion, which is heard and determined by a Judge or Registrar of the Court. 9. 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. The inspection of the tree on site confirmed that the tree is dead and that if left will gradually decay and collapse. I am satisfied on the evidence that a branch from the tree caused some damage to the dividing fence. It is also possible that a branch may have fallen from the tree onto the applicant's roof in 2015. Given the advanced state of decline, it is possible that further branch failure could, in the near future, cause damage to the applicant's dwelling and potentially cause injury. 2. As the jurisdictional tests in s 10(2) are met, orders will be made for the removal of the tree to a point on the trunk just below the first lateral branch. The removal of the upper canopy will remove the parts of the tree most at risk of failure. The remaining trunk poses negligible risk to the applicant's dwelling as the weight bias is away from the dwelling and towards an extensive area of the unoccupied, disturbed bushland which comprises the majority of the respondent's very large allotment. The remaining trunk may become useful habitat. As the tree is growing on a slope, the roots are likely to play a role in soil stabilization. 3. No orders will be made for any compensation for the alleged damage for the following reasons. * There is no evidence to substantiate the claim that the roof and ceiling damage was caused by a branch from the respondent's tree. While it is possible, there are other trees in the vicinity. A quote for ceiling repairs from The Roofing Professionals dated 23 April 2015 notes "Storm damage: branch through roof and ceiling over bedroom…" Another quote from that company for roof repairs dated 30 April 2015 notes storm damage 23/4/15 but no mention of a branch although it is assumed the two quotes refer to different elements of necessary repairs after the same event. * Neither the respondent nor his real estate agent has any correspondence from the applicant advising them that a branch from the Blue Gum had caused damage to the applicant's roof. The first time the respondent became aware of this was on receipt of the Class 2 application and claim form. The applicant acknowledged this omission. As discussed in Turner v O'Donnell [2009] NSWLEC 1349 at [23] the applicant's failure to advise the respondent of the damage to the roof denied the respondent the ability to take remedial or rectifying steps. Had the respondent been advised, the branch failure onto the fence may have been avoided. * The claim for the replacement of the fence appears to be as a consequence of vegetation other than the tree the subject of the application and is thus beyond the scope of this application. There is no itemised invoice for the repair of the section of fence shown as damaged by the branch. 1. Therefore, on the basis of these findings, the Orders of the Court are: 1. Within 30 days of the date of these orders, the respondent (or his agent), is to engage and pay for an experienced and appropriately insured arborist with a minimum qualification of AQF level 3 in Arboriculture to remove the dead Sydney Blue Gum at the rear of the respondent's property to a point below the lowest lateral branch. 2. The work in 2 is to be carried out in accordance with appropriate industry safety standards such as the WorkCover NSW Code of Practice for the Amenity Tree Industry or its equivalent. 3. Should it be required, the applicant (or her agent) is to provide all reasonable access on reasonable notice for the quoting and safe and efficient carrying out of the works in (2). 4. The claim for compensation is refused. ______________________ 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 September 2017