Duggan v Oldfield [2017] NSWLEC 1660

Land and Environment Court New South Wales

Medium Neutral Citation: Duggan v Oldfield [2017] NSWLEC 1660 Hearing dates: 20 November 2017 Date of orders: 20 November 2017 Decision date: 20 November 2017 Jurisdiction: Class 2 Before: Fakes AC Decision: Tree removal ordered see [12] Catchwords: TREES [NEIGHBOURS] : Damage to property; potential injury Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Texts Cited: Nil Category: Principal judgment Parties: Nicholas Duggan (Applicant) Phillip Oldfield (Respondent) Representation: Applicant: Nicholas Duggan (Litigant in person) Respondent: Phillip Oldfield (Litigant in person) File Number(s): 2017/256932 Publication restriction: No

JUDGMENT 1. COMMISSIONER: The applicant contends that a mature Eucalyptus saligna (Sydney Blue Gum) growing at the rear of the respondent's Surry Hills property has caused damage to his bathroom. In addition, the applicant is concerned that branches falling from the tree, as a consequence of what he describes as 'self-pruning', could cause damage to other parts of his property or injury to anyone on a number of nearby properties. 2. Given these concerns, the applicant has applied under s 7 part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders against the respondent seeking the removal of the tree and its root system, demolition and reconstruction of the bathroom, and reimbursement of all/any costs, including legal costs. In regards to the last element of the claim, 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. 3. 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 level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. At [62] Craig J states in part "something more than a theoretical possibility is required in order to engage the power under [the Trees] Act…". 2. Neither party engaged an arborist to provide either an expert report or to attend the on-site hearing. The following observations are based on the arboricultural expertise I bring to the Court and from information provided by the parties. [The tree is identified in the application claim form as Corymbia maculata (Spotted Gum) however, as stated above the tree is a Sydney Blue Gum.] 3. The respondent purchased his property in 1976 and shortly afterwards planted the tree in the corner of his small backyard. He stated that he was surprised at how quickly it grew. On the suggestion of an arborist from the City of Sydney and because of the presence of fungal fruiting bodies on the trunk, the respondent recently engaged a consulting arborist to undertake internal diagnostic testing of the affected trunk. However, the report had not been provided by the time of the hearing. The fruiting bodies appear to be from a species of Phellinus and are indicative of some internal decay, the extent of which can only be determined by internal investigations. The presence of new growth around the edge of the fruiting bodies suggests the decay process is quite active. 4. The tree has reached a considerable size both in height and girth. The trunk is pressing on the external wall of the applicant's bathroom which abuts the rear boundary. According to the respondent, the base of the tree on the side closest to the applicant's property was trimmed on a number of occasions to facilitate building works. 5. The applicant obtained a report from a structural engineer. Whilst minimal in its content, the report confirms that the pressure being applied by the growth of the tree to the masonry walls of the applicant's bathroom has caused internal and external damage to the extent that it must be partially rebuilt. The internal and external damage was confirmed on site. 6. I am satisfied to the extent required by s 10(2)(a) that the tree has caused, is causing, and will continue to cause, damage to the applicant's property. I saw nothing to suggest branch failure in the foreseeable future however subject to the findings of the internal testing there may be a significant internal defect which could pose a risk to nearby residents. 7. While the tree make a significant contribution to the amenity of the local area, given the proximity of the tree to the applicant's property, and the absence of practicable means of abating or avoiding future damage, orders will be made for the removal of the tree. 8. Since the making of the application the parties reached an agreement that should the respondent pay for the removal of the tree, the applicant will not press the claim for the rectification of the damaged bathroom. 9. On this basis, the Orders of the Court are: 1. The respondent is to engage and pay for a suitably qualified and experienced arborist with a minimum qualification in Arboriculture of AQF level 3 and with an appropriate level of public liability insurance to remove the Eucalyptus saligna to a height of at least 400mm above ground and to poison the remaining stump. The work is to be completed by 28 February 2018. 2. The work in (1) is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry or equivalent safety standard. 3. Should it be required, the applicant is to provide all reasonable access on reasonable notice for the purpose of quoting and or 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: 20 November 2017