Land and Environment Court
New South Wales

Medium Neutral Citation:

Ahmad v Verhey [2012] NSWLEC 1121

Hearing dates:

16 May 2012

Decision date:

16 May 2012

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

(1)The application to remove the tree is upheld.

(2)Both parties are to obtain at least one quote for the works in Order (3) within 14 days of the date of these orders. They are to agree on the quote to be accepted. If they cannot agree, the applicant may choose the quote to be accepted.

(3)Within 30 days of the date of these orders the applicant is to engage and pay for a suitably qualified arborist (minimum AQF level 3) to remove the Eucalyptus tree on the common boundary at the rear of the two adjoining properties owned by the parties. The tree is to be removed to ground level and the stump ground sufficiently to allow construction of a new fence along the boundary.

(4)The works in Order (3) are to be done in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(5)Within 7 days of receiving a copy of a paid invoice for the works in Order (3), the respondent is to pay to the applicant 50% of the invoice amount up to a maximum of $1,265.

(6)If the applicant does not provide the respondent with a copy of the paid invoice within 60 days of the date of these orders, Order (5) lapses.

(7)The applicant is to give the respondent 5 days' notice of the works in (3).

(8)Both parties are required to provide all access required for the works to be carried out during reasonable hours of the day.

(9)Within 14 days of the date of these orders both parties are to obtain at least one quote to remove the common boundary fence at the rear of the two adjoining properties and to replace it with a paling fence. They are to agree on the quote to be accepted. If they cannot agree, the applicant may choose the quote to be accepted.

(10)The selected fencing contractor is to remove and replace the fence within 60 days of the date of these orders.

(11)The parties are to share the cost of the fencing works in (9) equally.

(12)The applicant is entitled to have a colourbond or other fence constructed but shall be responsible for the entire amount above 50% of the cheapest quote for the works in (9).

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS): damage to property; dividing fence; tree removal ordered; replacement of fence; consent orders.

Legislation Cited:

Dividing Fences Act 1991
Trees (Disputes Between Neighbours) Act 2006

Category:

Principal judgment

Parties:

Ejaz Ahmad (Applicant)

Albert Verhey (Respondent)

Representation:

Ejaz Ahmad (Applicant in person)

Robert Kirby, Solicitor (Respondent)

File Number(s):

20185 of 2012

Judgment

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

Introduction

1ACTING COMMISSIONER: Mr Ahmad claims that a tree on neighbouring land has damaged his property. He seeks removal of the tree and replacement of the fence along the common boundary. The parties have submitted consent orders that they would like the Court to make under Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act). These orders include the removal of the tree, the sharing of the costs of tree removal, the removal and replacement of the boundary fence and the sharing of costs for the fence works. Before any such orders can be made the Court must first be satisfied that it has jurisdiction over the tree and the fence. Therefore I must determine today if the respondent's tree has caused damage to the applicant's property and if the proposed consent orders are suitable for dealing with any such damage.

2At the onsite hearing Mr Ahmad represents himself. Mr Verhey, the owner of the land on which the tree is situated, is represented by Mr Kirby, solicitor. Mr Ahmad has owned and lived at his property since 2001. Mr Verhey has owned his property, which is occupied by tenants, since 1996. Both dwellings were constructed in the early 1980s.

3Mr Ahmad contends that the tree has caused damage to roof tiles on his dwelling and that the base of the tree has pushed over the wooden paling fence. He also says that falling limbs are likely to cause injury to his children, who play in the back garden beneath the tree. He tried to bring these matters to the respondent's attention 7-8 years ago by informing Mr Verhey's real estate agent of his concerns. Until the parties recently drafted consent orders, they were unable to reach agreement.

Does the Court have jurisdiction?

4Firstly, for the Court to have jurisdiction, the tree must be situated wholly or principally on the respondent's land. The boundary fence was, according to the applicant, constructed around the tree. That fence has been displaced further by the tree and cannot be relied upon as a marker of the common boundary. Using the corner posts of fences at the end of the applicant's side boundaries, and assuming these are located at the corners of the property, it is apparent that the tree straddles the common boundary of the applicant's and respondent's properties but that more than half of its trunk at ground level is on the respondent's land. Therefore I am satisfied that the tree is principally located on land adjoining the applicant's land.

5Under s 10(2)(a) of the Act, concerning damage, the Court "must not make an order under this Part 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". I am satisfied that the tree has damaged the fence as its stem has increased in size, and that falling limbs have caused damage to roofing tiles on the applicant's dwelling. I am also satisfied that falling limbs may cause injury. The Court's jurisdiction is therefore enlivened.

Matters to consider under s 12 of the Act

6There are no matters in s 12 of the Act that would prevent the making of the orders consented to by the parties. Although the tree can be seen from other points in the neighbourhood, and therefore contributes to public amenity, it is the two properties on which the tree grows that enjoy most of its benefits.

The fence along the common boundary

7Both parties agree that the tree has damaged the fence, and I accept this. Under s 13A of the Dividing Fences Act 1991 this Court therefore has jurisdiction to make orders regarding repairs or replacement of the fence, and apportionment of payment for those works between the parties.

8The fence is in a dilapidated state along its length but is most displaced where it passes the tree. Replacement of this entire section of fence is appropriate. The parties agree to pay half the costs of a replacement fence of similar materials, unless Mr Ahmad wants a more expensive fence, in which case he would pay the additional costs.

Conclusions

9Because the tree has caused damage to the dwelling and the fence, and poses a risk of injury, it falls within the Court's jurisdiction. The parties have agreed to consent orders that I consider are appropriate to the situation. Tree removal will prevent further damage, prevent injury and allow the dividing fence to be reinstated along the common boundary.

Orders

10Therefore, the orders of the court, by consent, are: