Land and Environment Court New South Wales

• Medium Neutral Citation: Kellock v Callinan; Le Poidevin v Callinan [2013] NSWLEC 1006
• Hearing dates: 9 January 2013
• Decision date: 09 January 2013
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application dismissed in 20837 of 2012

Application upheld in 21075 of 2012; tree removal ordered

• Catchwords: TREES [NEIGHBOURS] Damage to property
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Yang v Scerri [2007] NSWLEC 592
• Category: Principal judgment
• Parties: Mr T Kellock (Applicant: 12/20837); Ms F Le Poidevin (Applicant: 12/21075); Ms T Callinan (Respondent both matters)
• Representation: Applicant: Mr T Kellock (Litigant in person); Applicant: Ms F Le Poidevin (Litigant in person); Respondent: Ms T Callinan (Litigant in person)
• File Number(s): 20837 of 2012; 21075 of 2012

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1 COMMISSIONER: These are two applications made under s 7 part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by owners of two adjoining units (units 4 and 5) in Bathurst.

2 Both applicants are concerned about a Golden Elm tree growing at the rear of the respondent's property. The owner of unit 4, Mr Kellock, has also nominated a Claret Ash as being of concern. The applicants are seeking the removal of the Golden Elm on the basis of it causing actual or future damage to their properties or potentially causing injury. Mr Kellock also seeks the pruning of the Claret Ash as a precaution against future damage. Ms Le Poidevin, the owner of unit 5 is seeking orders for the rectification of displaced paving in her rear courtyard.

3 The respondent does not wish to remove the Golden Elm as she values it for the amenity it provides.

4 The Golden Elm is a healthy, early mature specimen growing at the rear of the respondent's property about 300mm from the metal fence that separates the respondent's property from unit 5. It has codominant stems with included bark.

5 The Claret Ash is a healthy semi-mature specimen approximately 3 m from the boundary fence between the respondent's and Mr Kellock's property.

6 In applications made under Part 2, the key jurisdictional test is found in s 10(2) of the Act. This states that the Court must not make an order unless it is satisfied that any of the trees concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant's property or is likely to cause injury to any person.

7 If any part of this section is met, the Court's jurisdiction to make orders under s 9 is engaged and the Court can make any orders it thinks fit to remedy, rectify or prevent damage to property or injury to any person.

The Kellock property

8 Dealing first with Mr Kellock's application (matter 20837 of 2012), he accepts that the Golden Elm has not caused any damage to his property, however, given the advice from an arborist regarding the possible failure of the co-dominant trunks, he is concerned that the tree may fail mechanically and cause damage to his property or injure someone.

9 In the guidance the guidance decision in Yang v Scerri [2007] NSWLEC 592 the Court has determined that the 'near future' is a period of 12 months from the date of the hearing; a timeframe I consider appropriate in this matter. In regards to injury, the Court considers the risk posed by a tree in the foreseeable future based on the characteristics of the tree/s and the circumstances of the site apparent at the time of the hearing.

10 With the expertise I bring to the Court, I saw no signs that would lead me to conclude that the trunk of the Golden Elm is likely to fail in the near or foreseeable future.

11 In regards to the Claret Ash, while the tips of some branches are touching the fence and are close to the guttering, they are unlikely to cause damage to either of those structures in the near future.

12 Therefore as s 10(2) is not satisfied for either tree, the Court has no jurisdiction to order any intervention with them with respect to the Kellock application and that application is dismissed.

The Le Poidevin property

13 The Golden Elm overhangs Ms Poidevin's property. The rear courtyard is partially paved and a significant portion of the paving has been lifted and the area is quite uneven.

14 I am satisfied to the extent required by s 10(2) that roots of the Golden Elm have caused this damage and will continue to do so. Therefore s 10(2) is satisfied and the Court can consider what orders should be made.

15 The making of orders requires consideration of matters in s 12 of the Act. Relevant here are:

(a) The tree is wholly located on the respondent's property within 300mm of the paved area.

(b2) This sub-section deals with the impact of pruning. In order to rectify the paving it is inevitable that root pruning must be carried out. The level of the displacement indicates quite large woody roots. Given the proximity of the tree to the paving, severing woody roots is likely to have a detrimental impact on the tree's stability and health. I concur with the applicant's arborist that the installation of a root barrier to prevent further damage would similarly destabilise the tree.

(b3)(e)(f)The tree certainly makes a contribution to the amenity of the respondent's property and as it can be seen from the street, it also contributes to the streetscape and to public amenity.

(h)(i) The applicant has owned her property since 2010. She was aware of some displacement when she purchased it but contends that the problem has worsened during the time she has lived there making the paved area unsuitable for use.

16 After considering the issues and the competing interests of the parties, I find, reluctantly, that the tree should be removed. As discussed above, the potential consequences of root pruning required to repair the paving and to prevent ongoing damage could destabilise the tree. The Court cannot make orders that may increase the risk of damage to property or injury to people.

17 In regards to the rectification of the damage, the applicant maintains that she should not be responsible for the removal of roots and that the respondent should pay for this.

18 Given that the applicant was aware of the problem when she purchased the property I consider there should be some apportionment of the costs of removing the roots. However, the costs associated with the lifting and relaying of the paving should be borne by the applicant.

19 In matter 20837 of 2012, the Orders of the Court are:

(1) The application is dismissed.

20 In matter 21075 of 2012, the Orders of the Court are:

(1) The application is upheld.

(2) Within 60 days of the date of these orders the respondent is to engage and pay for an AQF level 3 arborist with appropriate insurance cover to remove the Golden Elm to a height of up to 1.5m above ground. The stump is to be poisoned or ground to a depth of 300mm.

(3) The work must be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(4) If required by the arborist, the applicant must provide access for the work to be carried out efficiently and safely. A minimum of two working days notice is required.

(5) Within 60 days of the date of these orders, the applicant is to lift the pavers and expose the roots.

(6) The applicant is to obtain three quotes for the removal of the roots beneath the currently paved area to a depth of 150 mm below the bottom of the pavers for the area of the lifted pavers.

(7) The applicant is to provide a copy of the quotes to the respondent and the parties are to agree on the cheapest quote.

(8) The applicant is to engage and pay for the nominated contractor to remove the roots within 90 days of the date of these orders otherwise order 9 lapses.

(9) Within 21 days of the receipt of a tax invoice for the completed work, the respondent is to reimburse the applicant 80% of the cost of the root removal.

___________________

J Fakes

Commissioner of the Court

Decision last updated: 11 January 2013