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NSW Crest

Land and Environment Court
New South Wales

Medium Neutral Citation:
Tran v Kranjcec & anor [2014] NSWLEC 1164
Hearing dates:
19 August 2014
Decision date:
19 August 2014
Jurisdiction:
Class 2
Before:
Galwey AC
Decision:

The application is upheld in part. See orders at paragraph (15).

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS); damage; injury; application upheld in part; orders for tree removal and tree pruning.
Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006
Category:
Principal judgment
Parties:
Lap Thi Tran (Applicant)

Barica Kranjcec (First respondent)
Ivan Kranjcec (Second respondent)
Representation:
Lap Thi Tran, litigant in person (Applicant)

Ana Ladesic, daughter and agent (Respondents)
File Number(s):
20441 of 2014

Judgment

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

The application

1Mr and Mrs Kranjcec live in Fairfield East in Sydney's west. They have two large eucalyptus trees in their back garden, one of which is dead and the other has large dead sections. Their neighbours, the Trans, are concerned about dead branches falling from the trees. They say that falling branches have damaged the roof of a pergola over their swimming pool. They are concerned that more dead limbs will fall and may injure their family members or cause further damage. They have approached the Kranjcecs and asked that the trees be removed, but so far the Kranjcecs have refused to remove the trees. Mrs Tran has applied to the Court seeking orders pursuant to Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for the trees to be removed. In her filed application Mrs Tran also sought orders for compensation for damage to the pergola roof; however at the hearing she clarified that she did not wish to press that part of the application and only seeks removal of the trees.

The Court has jurisdiction over the trees

2At the onsite hearing I viewed the trees and the relevant parts of both parties' properties. The trees appear to be Grey Box (Eucalyptus moluccana), a locally indigenous species.

3Tree 1 is a mature tree approximately 20 metres tall near the respondents' rear boundary, a few metres from the side common boundary with the applicant's property. It has three main stems, one of which is dead and partly overhangs the common boundary. The other two stems are alive but have some large dead branches. If the dead stem or other branches fall they may damage the applicant's property or may injure a person in the rear garden of either property.

4Tree 2 is a large dead tree approximately 20 metres tall, a few metres further from the rear boundary but only two metres from the common side boundary. A significant portion of its dead crown extends above the applicant's property. The tree appears to have been dead for some time. Failure of large dead branches is likely in the near future - there are already signs of failed branches. Falling limbs are likely to cause damage to the applicant's property or injury to a person on either property. I am therefore satisfied that both trees meet the jurisdictional tests at s 10(2) of the Act and I can make orders to prevent damage or injury.

5Mr Tran, the applicant's husband, showed me dead branches he says have fallen from the tree. Ms Ladesic, daughter of the respondents, says those branches may have fallen from another neighbouring tree that was removed very recently, and that branches from that tree may have caused damage to the pergola roof. I do not need to consider those branches as I am satisfied after observations at the site that the trees are likely to cause damage or injury, and this engages the Court's jurisdiction. I do not need to know the origin of branches that damaged the pergola roof as Mrs Tran is not claiming compensation.

Orders will be made for the trees

6I am also satisfied that the level of risk justifies orders being made to remove the trees or hazardous parts of the trees.

7I find that removal of the dead tree, Tree 2, is required to prevent damage to the applicant's property or injury to any person. For Tree 1, only the dead sections need to be removed. The live parts that will remain will not overhang the applicant's property.

8The parties were asked to tell me who should pay for the works and why.

Who should pay for the works?

9Mrs Tran says that Tree 2 was dead around the time they installed their swimming pool in or around 2009. She says they notified the respondents of their concerns but the respondents refused to take any action. She showed me a copy of a 2009 letter from the NSW Community Justice Centre, the message of which was that the respondents had refused mediation over the matter. She says she even offered to pay for tree removal at one point. She says the trees are a high risk and wants them removed as soon as possible at the respondents' expense.

10Ms Ladesic says the trees were healthy when the Trans' pool was installed but its health declined soon after her parents went away for a period some time after that. She suggested more than hinted that the trees had been interfered with, perhaps poisoned, perhaps by the Trans. When asked if she could show me any evidence of this, which I would be obliged to consider when determining apportionment of costs to carry out any orders, she was unable to. Even if there was interference with the trees, I cannot be satisfied to any extent that that is the case.

11The Kranjcecs provided a 2009 report from Friendly Fred's Tree Services that described Tree 2, now dead, as being in fair health. Ms Ladesic says this shows the tree only declined after her parents' holiday at a later date. However in that report Mr Barrass, the arborist, noted that there was borer activity in the lower trunk. I observed that there was significant borer damage at the base of the dead tree and that this may have led to the tree's decline through ringbarking the tree to a significant extent.

12Ms Ladesic says the pool was built near the trees without her parents' knowledge. She says it could have been located elsewhere on the Trans' property. If there was scope to build elsewhere this would be something I would again consider in apportioning the cost of any works. However even if the pool had been located along the other side of the garden, the area near the trees would be one that the Trans could otherwise reasonably expect to use for children's play and outdoor leisure. Therefore I cannot find that there are any actions taken by the Trans that have caused the risk and so I will not apportion to them any of the costs of the works.

13There were other matters raised by the parties that are not relevant to the tree issues. It is hoped that their relationship improves rather than deteriorates any further.

14The Kranjcecs will bear the costs of the works. Ms Ladesic explained that her parents are pensioners and would need some time to pay for the works if that was ordered. They will be provided 3 months to do this.

Orders

15Therefore the Court makes the following orders.

(1)The application is upheld in part.

(2)Within 90 days of the date of these orders the respondents are to engage at their expense a suitably qualified and experienced arborist (minimum AQF level 3), with appropriate insurances, to:

(a)remove the dead tree (Tree 2) to no more than 500mm above ground level;

(b)remove the dead stem of Tree 1; and

(c)prune Tree 1 to remove any deadwood greater than 50mm diameter.

(3)The works are to be done in accordance with AS4373 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(4)The respondents are to give the applicant one week's notice of the works.

(5)The applicant is to provide all access necessary for the works during reasonable hours of the day.

____________________________

D Galwey

Acting Commissioner of the Court

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Decision last updated: 19 August 2014