Powell v Pikulyk [2019] NSWLEC 1562

Land and Environment Court New South Wales

Medium Neutral Citation: Powell v Pikulyk [2019] NSWLEC 1562 Hearing dates: 18 October 2019 Date of orders: 08 November 2019 Decision date: 08 November 2019 Jurisdiction: Class 2 Before: Galwey AC Decision: See orders at [32] Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – damage – damage to vehicle – compensation sought – orders for pruning Legislation Cited: Trees (Disputes Between Neighbours Act) 2006 (NSW) Texts Cited: AS4373:2007 'Pruning of amenity trees' Safe Work Australia (2016) 'Guide to managing risks of tree trimming and removal work' Category: Principal judgment Parties: Christopher Mark Powell (First Applicant) Katherine Ann Rhys Powell (Second Applicant) Raymond Pikulyk (First Respondent) Patricia Pikulyk (Second Respondent) Representation: C Powell, litigant in person (First Applicant) K Powell, litigant in person (Second Applicant) R Pikulyk, litigant in person (First Respondent) P Pikulyk, litigant in person (Second Respondent) File Number(s): 2019/128844 Publication restriction: No

Judgment

Background to the application 1. A large mature gum tree grows on the North Rocks property belonging to Patricia and Raymond Pikulyk ('the respondents'). It is close to the common boundary they share with their neighbours, Katherine and Christopher Powell ('the applicants'). 2. Some time ago, the Powells asked the Pikulyks to remove a large dead branch above their property, concerned that it would fall and cause damage. The Powells said a live branch fell onto their carport, breaking tiles which in turn fell on, and damaged, their parked car. 3. After some discussions, the Pikulyks agreed to prune the tree. Unable to agree on access arrangements for the works, the pruning was postponed. The Powells applied to the Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) ('the Trees Act'), seeking orders for the tree to be pruned or removed, and for compensation for damage to their car. 4. The Pikulyks obtained an arborist report from Scott Gatenby of Apex Tree & Garden Experts. They engaged an arborist to prune the tree in the week prior to the hearing, removing the large dead branch that concerned the Powells. 5. Although the Powells would prefer all branches above their property removed, they clarified at the onsite hearing that they were generally satisfied with the state of the tree. They wished to press their compensation claim.