Keiselis v Park & anor [2017] NSWLEC 1648

Land and Environment Court New South Wales

Medium Neutral Citation: Keiselis v Park & anor [2017] NSWLEC 1648 Hearing dates: 14 November 2017 Date of orders: 14 November 2017 Decision date: 14 November 2017 Jurisdiction: Class 1 Before: Fakes AC Decision: Within 21 days of the date of these orders the respondents are to reimburse the applicant the sum of $4310.00 for the rectification of damage caused to the applicant's property as a consequence of the failure of the respondents' tree. Catchwords: TREES [Neighbours]: Damage to property, compensation. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 Texts Cited: Nil Category: Principal judgment Parties: Carmel Keiselis (Applicant) Jun Bo Park & Hyo Jin Kim (respondent) Representation: Applicant: Carmel Keiselis (Litigant in person) Respondents: Mr S Lee (Solicitor)

Solicitors: Respondents: The Hills Legal House File Number(s): 2017/278397 Publication restriction: No

Judgment 1. COMMISSIONER: On 18 March 2017, in the early hours of the morning, a large portion of a Pinus radiata (Monteray Pine) growing on an adjoining property, collapsed and fell onto the applicant's backyard pool. As illustrated in photographs included in the Class 2 Application and Claim Form, the pool liner, coping and deck were damaged. 2. The applicant has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the reimbursement of $4310.00, the amount spent by the applicant in repairing and reinstating the pool. 3. Orders are also sought for the reimbursement of legal costs however this is beyond a Commissioner's jurisdiction. If sought, claims for legal costs, costs of expert reports, application fees and the like must be made by a Notice of Motion, which is heard and determined by a Judge or Registrar of the Court. 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. Neither party engaged an arborist to provide independent expert evidence; the following observations are based on the arboricultural expertise I bring to the court. 2. The tree that failed was one of several established Pines growing close to the respondents' rear boundary. Other similar trees are growing on an adjoining property and are possibly remnants of a windbreak, which was established prior to residential subdivision of this part of Wyoming in the Central Coast local government area. 3. Photographs in the application claim form indicate that the tree failed at about halfway up the trunk. The remainder of the trunk has been removed to a small stump. The absence of foliage on any of the fallen pieces, the way in which the bark has separated, and the appearance of the branch timber suggest to me that the tree was dead and in a state of disintegration when it failed. This is reinforced by the extensive borer damage visible in the remaining cross-section of stump. 4. I am satisfied to the extent required by s 10(2)(a) that the respondents' Pine tree caused damage to the applicant's pool and thus the Court's jurisdiction to make orders under s 9 of the Trees Act is engaged. 5. According to the applicant, there was some urgency in having the pool repaired and refilled as the pool functions in part as a retaining structure. A quote was obtained for its repair. The evidence in the application claim form indicates that the applicant notified the respondents' agent shortly after the collapse. The agent inspected and photographed the damage. The next day, the respondents inspected the damage and advised the applicant they would be contacting their insurance company the next day. Later that week it appears that the respondents were advised that the failure was unforeseeable and their insurance company would not cover the cost of repairs. It appears from the letter that this advice was conveyed to the applicant on 24 March. On this basis the applicant proceeded to have the damage repaired. The application under the Trees Act is a consequence of the applicant's unsuccessful attempts to have the cost of repairs reimbursed. 6. Citing Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280, the respondents' solicitor submits that the failure of the tree was an unforeseeable natural disaster for which the respondents cannot be held responsible. He contends that the respondents' agent regularly inspects the rental property and that whilst the applicant's alleged concerns about the tree were conveyed to their tenant, the tenant did not pass those concerns onto the respondents. The respondents' solicitor also asserts that the respondents were not provided with an opportunity to obtain other quotes. As such, the respondents' position is that they should not be required to pay any compensation or reimbursement. 7. Having considered the evidence and heard from the parties, I find that the damage was foreseeable. While the agent or the respondents may not have arboricultural expertise, it should be self evident that a tall dead tree close to an adjoining property would pose some risk. The Court has commonly held that the failure of dead wood is predictable but manageable. The respondents were advised of the damage in a timely manner and inspected the damage. From the written material and oral evidence adduced on site, the respondents' position has been and remains that they should not pay for the repairs and as such, I accept that the applicant had no alternative but to pay for the work herself and then seek reimbursement through the Trees Act. 8. On the basis of the foregoing, the Orders of the Court are: 1. Within 21 days of the date of these orders the respondents are to reimburse the applicant the sum of $4310.00 for the rectification of damage caused to the applicant's property as a consequence of the failure of the respondents' tree. __________________________ 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: 04 May 2018