Land and Environment Court New South Wales

• Medium Neutral Citation: Barker & anor v Morris & anor [2014] NSWLEC 1205
• Hearing dates: 3 October 2014
• Decision date: 03 October 2014
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application upheld in part; orders for tree removal

• Catchwords: TREES [NEIGHBOURS]: Damage to property; risk of injury; compensation
• Legislation Cited: Dividing Fences Act 1991; Trees (Disputes Between Neighbours) Act 2006
• Category: Principal judgment
• Parties: Mr R and Ms P Barker (Applicants); Mr K Morris and Ms M Morris (Respondents)
• Representation: Applicants: R & P Barker (Litigants in person); Respondents: K Morris (Litigant in person)
• File Number(s): 20460 of 2014

Judgment

1 COMMISSIONER: The applicants own a property in North Nowra. They have applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the removal of a dead tree from an adjoining property on the basis that branches falling from it have caused damage to the dividing fence and could cause injury to anyone on their property.

2 Orders are also sought for compensation for half the cost of replacing the dividing fence between the parties properties, which the applicants contend was damaged by branches falling from the tree, and for half the cost of the Court's filing fee. In regards to the latter element of the claim, Commissioners of the Court do not have the jurisdiction to award such costs. Should they wish to do so, the applicants may file a separate Notice of Motion, which would be heard by the Registrar or a Judge of the Court.

3 In applications under Part 2 of the Act the key jurisdictional test is found in s 10(2). This states that the Court must not make an order unless it is satisfied that the tree 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.

4 The tree in question is a large dead Eucalypt in the rear corner of the respondents' property, a vacant lot. It is one of three dead trees in that corner of the respondents' property. A portion of its canopy overhangs the applicants' backyard. A letter from the applicants to the respondents dated 15 February 2013 advises them of two dead trees on the respondents' property and branches from them falling into the applicants' yard. The applicants contend that on 21 June 2014, in calm conditions, a large branch fell from the tree onto the clothesline in the backyard and nearly injured their tenant.

5 Neither party sought any independent arboricultural advice. With the expertise I bring to the Court, I am satisfied on the evidence of the tree itself that branches will continue to fall from it, and given its proximity to the applicants' property, it is likely in the near future to cause damage to the applicants' property and it could cause injury to someone. Therefore as s 10(2) is met, the Court's jurisdiction to make orders is engaged.

6 Given the advanced state its decline, there are no discretionary matters in s 12 of the Act that warrant any other orders except removal of the tree at the respondents' expense. In order to save some costs, it is sufficient to have the tree removed to a single trunk no more than 3m above ground. Should the respondents wish to remove it to any height less than 3m they can. While the application did not identify the other two nearby dead eucalypts, the first respondent was advised that those trees also pose a risk of damage or injury and some action would be prudent.

7 In regards to compensation for damage to the fence, there is no evidence of the alleged damage. A letter dated 8 October 2013 advises the respondents that the "back fence of your property and our adjoining property is in disrepair. Palings are falling off and the wood has rotted." The letter then states that the applicants are getting quotes for its replacement and any lack of a response from the respondents would be taken as confirmation to proceed. There is no mention in the letter of any damage to the fence as a consequence of the tree or any request for the respondents to share the cost of the replacement. The remainder of the correspondence in the application is between the applicants and Shoalhaven Council and the Rural Fire Service.

8 Therefore, on the evidence before me, I have nothing that would enable me to require the respondents to reimburse the applicants 50% of the cost of the fence. Even if the applicants had answered 'Yes' to Question 17 in the claim form and called in the Court's jurisdiction under s 13A of the Dividing Fences Act 1991, the absence of any damage to the fence as a consequence of the tree would also have prevented the making of orders under that Act.

9 Therefore the Orders of the Court are:

(1) The application is upheld in part.

(2) By the 14 November 2014, the respondents are to engage and pay for an AQF level 3 arborist, with an appropriate and current insurance cover, to remove the tallest dead tree in the south-eastern corner of 39 Peak Avenue, North Nowra to a single trunk with a minimum height of 3m above ground level.

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

(4) If required, the applicants and their tenants are to provide access for the purpose of quoting and or the safe and efficient carrying out of the works in (2) on reasonable notice.

(5) The application for compensation is dismissed.

__________________

Judy Fakes

Commissioner of the Court

Decision last updated: 03 October 2014