Chesters v Oakes

[2016] NSWLEC 1504

Land and Environment Court

New South Wales

Medium Neutral Citation:	Chesters v Oakes [2016] NSWLEC 1504
Hearing dates:	25 October 2016
Date of orders:	25 October 2016
Decision date:	25 October 2016
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is upheld. See orders at paragraph 14.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS); damage; debris; orders for pruning.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Category:	Principal judgment
Parties:	Michael Chesters (Applicant) Michael Oakes (Respondent)
Representation:	Michael Chesters, litigant in person (Applicant) Michael Oakes, litigant in person (Respondent)
File Number(s):	197205 of 2016

Judgment

Background

1. Mr Chesters (‘the applicant’) owns a residential property in Cardiff. Part of the dwelling on the property is not completed nor approved for inhabiting. A small flat at the rear of the dwelling is habitable.

2. Two native trees on the neighbouring property, owned by Mr Oakes (‘the respondent’), stand roughly in line with the rear of Mr Chesters’ dwelling, 6—7.5 metres from the common boundary.

3. Approximately three years ago a branch fell from the tree nearest Mr Chesters’ dwelling (Tree 1). Mr Chesters says it damaged some roof guttering and two roofing panels, causing damage that cost $200 to repair. Mr Oakes acknowledges that a branch fell but disputes that it hit or damaged Mr Chesters’ dwelling.

4. Mr Chesters is concerned that more branches may fall onto his property, or that one or both trees may fall onto his property. He says debris on his roof is from these trees. He says water pools in Mr Oakes’ property, increasing the risk of trees toppling. He has applied to the Court pursuant to the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’) seeking orders for removal of these two trees.

5. Mr Oakes does not want to remove the trees, but says if Mr Chesters wishes to remove them he can do so at his own expense.

The trees

6. Like numerous other trees on the property and on nearby properties, the two subject trees are mature native gum trees (Eucalyptus sp.). They are 25—30 metres tall. No arboricultural evidence was obtained by the parties, so I bring my own experience to assessing the trees’ condition. They appear to be in good health, with no major structural defects apparent from the ground. There are signs that termites may have been, or may be, present in the trees, but this does not necessarily imply structural weakness.

7. Some deadwood is present in the trees’ crowns. Branches of Tree 1 extend across the common boundary and above Mr Chesters’ property; branches of Tree 2 do not.

8. Raised ground around the base of the trees may be due to growth of the trees’ root buttresses, or may be due to other causes. There are no signs of cracks in the soil, root damage, or any other indications of an increased risk of root failure.

Jurisdiction

9. Debris on Mr Chesters’ roof and gutters may be from these trees or from other trees, including some on his property. This debris does not amount to damage. Any damage that might result from blocked gutters would be preventable through ordinary property maintenance.

10. I accept Mr Chesters’ evidence that a branch from Tree 1 damaged his property. Therefore, I may make any orders I deem appropriate to prevent further damage to his property, or to prevent injury.

11. Tree 2 has not damaged Mr Chesters’ property. There is no evidence to satisfy me that it is likely to do so in the near future, or that it is likely to cause injury. Therefore, according to s10(2) of the Trees Act, I cannot make orders for Tree 2.

Orders

12. There is nothing to suggest Tree 1 is likely to fail entirely in the near future. Any branches falling onto his property could cause damage. Those most likely to fall are dead branches and a limb that is becoming overextended – it is becoming very long relative to its diameter and branch taper. Risk can be minimised with pruning.

13. Mr Oakes says he has limited financial resources to get any works done. He will be given 12 months to carry out the works.

14. Therefore the orders of the Court are:

1. Within 12 months of the date of these orders, the respondent is to engage at his cost a suitably qualified arborist (minimum AQF level 3) with appropriate insurances to prune Tree 1 as follows:

1. remove all deadwood greater than 20 mm in diameter within 5 metres of the common boundary; and

2. remove the lowest live limb extending above the applicant’s dwelling, indicated in the photograph below.

2. The works in (1) are to be done in accordance with AS4373 Pruning of amenity trees and the WorkCover NSW Code of practice for the amenity tree industry.

3. The respondent is to give the applicant at least 7 days’ notice of the works in (1).

4. The applicant is to allow any access necessary for the works ordered above in (1) to be done during reasonable hours of the day.

____________________________

D Galwey

Acting Commissioner of the Court

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