Collins v Sneddon

[2007] NSWLEC 682

Land and Environment Court

of New South Wales

CITATION:

Collins v Sneddon & Anor [2007] NSWLEC 682

PARTIES:

APPLICANT
Peter Collins

RESPONDENT
Bruce Sneddon & Sue Sneddon

FILE NUMBER(S):

20636 of 2007

CORAM:

Hoffman C

KEY ISSUES:

Trees (Neighbours) :- removal of two trees, damage to property by a third tree and claim for compensation.

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

17/09/2007 and 17/10/2007

 
DATE OF JUDGMENT: 

19 October 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr P. Collins, litigant in person

RESPONDENT
Mr B. Sneddon, litigant in person
Mrs S. Sneddon, litigant in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

19 October 2007

20636 of 2007 Peter Collins v Bruce Sneddon & Anor

JUDGMENT

1 Commissioner: This is Appeal No. 20636 of 2007 between Peter Collins and Bruce and Sue Sneddon in regard to two trees that still exist on No. 28 Valley View Crescent, Glendale, and damage caused by a third tree that fell from No.28 onto No.26 during a violent storm in June of this year. No.26 Valley View Crescent is the home of the applicant.

2 An on-site hearing began at No.28, the respondents’ home, on 17th September, 2007.

3 This appeal was heard concurrently with Appeal No.20637 of 2007 Hacene Vs Sneddon, the applicant in that case, Mr Hacene owns and lives at No.30 Valley View Crescent. That case involved one of the trees the subject of this appeal, namely the large gum tree in the front yard of No.28. That case has been determined with orders for the tree to be removed.

4 The second tree is a very tall gum growing close to the rear of Mr & Mrs Sneddon’s house, and adjacent the boundary with No.26. The house on No.26 is quite close to the common boundary and its rear façade is adjacent that of the Sneddon’s house.

5 Mr Collins estimated the tree’s height at about 15 m, and from observation on-site I agree with that. It could be higher. The size of the tree meant that if it fell towards the houses it would certainly inflict great damage to the buildings. Mr Collins said his daughter’s bedroom is in the corner of his house closest to the tree and he is concerned for her safety.

6 It was common ground between the parties that the June storm was violent and several trees on No.28 had fallen and damaged property on both No.26 and 30. Those trees have been removed and the parties indicated on-site where they had been and the directions in which they fell.

7 In Mr Collins case, the third tree in this appeal had fallen on his garage and workshop and a stack of paving bricks all of which were still in a severely damaged state. He outlined the extent of the damage and that he had to rent a storage space in an industrial estate to store his tools and equipment until the insurance company rebuilt the garage and workshop. There was the cost of the above and his stress, and time and inconvenience arranging and transporting the tools and equipment, and he did not know for how long he would have to rent the storage space. Many of the damaged tools are irreplaceable old woodworking tools collected over many years.

8 He made a bulk claim of $10,000 for the costs that he believed the insurance company would not pay.

9 I asked if he had spoken to his insurance company in regard to those costs, and he had not. I asked Mr Sneddon is he had asked his insurance company about the possibility of such costs being admissible as part of his insurance cover, and he had not. Also I indicated to Mr Collins that a bulk claim of $10,000 is not appropriate as Mr Sneddon could not reasonably be asked to test it during the hearing. In any case the Standard Directions under cl 6 to parties under the Trees (Disputes between Neighbours) Act 2006 legislation required any claim to be detailed.

10 In view of the lack of detail and the need to know what costs, if any, the insurance companies would pay, an adjournment was granted and Directions issued.

11 On resumption of the Hearing, Mr Sneddon advised his insurance company would defend against any claim by Mr Collins because no letter of demand had been received within the appropriate time period. Mr Collins advised that he had an advice from his insurance company that it would pay all the costs that he is concerned about, and therefore he withdrew his claim for compensation in this appeal.

12 The parties had said on-site they had expected an Acting Commissioner with full arborist qualifications to attend and assess the trees sought for removal. On 17 October I invited Mr Sneddon to obtain an expert arborists report if he chose, and I would adjourn the Hearing to allow it. He did not take up that opportunity.

13 That left for determination, what if any action should be taken in regard to the large gum tree adjacent the rear of the Sneddon’s house. A photo of the tree was tendered as taken from No.30 Valley View Crescent. The position of the photographer is on the concrete paving at the rear of the Hacene house looking over its garage roof to the Sneddon house and the subject tree.

14 This photo is convenient because it shows in profile a large branch on the tree that overhangs the south-east corner of the Sneddon house and its driveway, and partly overhangs the Collins property close to its house.

15 That particular branch appears to have an included bark fault at the fork where it connects to its more vertical parent. Other than that the tree appears healthy, thriving and without other faults that would necessitate lopping or removal.

16 Under the Act applicable in this Hearing I am satisfied that the faulty branch referred to above represents a potential danger to persons and property in both the Sneddon and the Collins properties under s 10(2)(a) and (b) and s 12(a) of Trees (Disputes between Neighbours) Act 2006. None of the other matters under s 12 are in conflict with an order to remove the branch. Mr Sneddon said he did not oppose the removal of the branch.

17 On the question of costs of work on trees, Mr Collins said as a result of the June storm, he had an arborist look at his own trees, and some are faulty. One in particular is similar to the tree in No.28’s front yard that has a bifurcated trunk. It has to come down and he would have to pay for that. He felt that each tree owner should pay for work on their own trees.

18 He indicated that an arborist had visited his property and, presumably with Mr Sneddon’s consent the tree in No.28’s front yard. The arborist would send a quote. Mr Sneddon made no comment on the arborist’s visit, but said he had not seen any quote yet, and made no further submissions.

19 In view of the determination in Hacene V Sneddon, I make no order in regard to the front yard tree in this appeal. In regard to the tree at the rear I make orders under s 9(2)(b) and (c) and (h) as set out below.

20 The Orders of the Court are:

1. The appeal is upheld.

2. The large gum tree adjacent the rear of the house on No.28 Valley View Crescent, Glendale, shown in the photograph attached in Annexure A to these orders, shall have the branch removed as marked on that photograph. No other work to the tree is required.

3. The removal of the branch shall be undertaken by an AQF Level 3 Arborist with appropriate insurance and the pruning to be in accordance with AS 4373-07 Pruning of Amenity Trees. The costs of the works to be paid by the owner(s) of the tree.

4. Order 3 to carried out within 3 months of the date of these orders.

5. Documents on the Court’s file are retained.

________________________
K G Hoffman
Commissioner of the Court
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