Daley v Murray
[2015] NSWLEC 1489
•25 November 2015
Land and Environment Court
New South Wales
Medium Neutral Citation: Daley & anor v Murray [2015] NSWLEC 1489 Hearing dates: 25 November 2015 Date of orders: 25 November 2015 Decision date: 25 November 2015 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is upheld. See orders at paragraph 15.
Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage by a fallen tree; risk of damage and injury; orders for tree removal; consent orders. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Category: Principal judgment Parties: Anthony Daley (First Applicant)
Bronwyn Daley (Second Applicant)
Catherine Murray (Respondent)Representation: Anthony Daley, litigant in person (First Applicant)
Bronwyn Daley, litigant in person (Second Applicant)
Catherine Murray, litigant in person (Respondent)
File Number(s): 20869 of 2015
Judgment
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
Background
-
Prior to a severe storm in April 2015, Ms Murray (‘the respondent’) had three Spotted Gums standing in her back garden. After the storm she was left with two. The tree that fell during the storm caused damage to neighbouring properties, including to parts of the Daley’s dwelling and surroundings, and to the fence on their common boundary. Pursuant to Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’) Mr and Mrs Daley (‘the applicants’) applied to the Land and Environment Court seeking orders for the remaining two trees (‘the Trees’) to be removed. They do not seek compensation for damage to their property, only for Ms Murray’s share of repairs that they have carried out to the fence on the common boundary and for some costs associated with making their application.
-
The Daleys engaged arborist Mark Bury to assess the two remaining Trees and write a report. Mr Bury concluded that the Trees are stressed and that they grow in disturbed soils that may not be structurally suitable for supporting the Trees. Mr Bury assigned risk ratings to the Trees using two methods of risk assessment: Quantified Tree Risk Assessment (QTRA) and the Tree Risk Assessment Qualification (TRAQ). Mr Bury did not include any methodology, observations or workings to show how he arrived at the ratings, so they are of little assistance to the Court.
-
Ms Murray obtained advice from William Jones of Tree and Garden Services. Mr Jones wrote on a quote that the Trees were “not imminently dangerous under normal weather conditions” but recommended “they be removed within the next 3 months.” Mr Jones quoted $3,091 to remove the Trees to “close to ground level”.
-
The parties are agreed that the Trees need to be removed. Ms Murray intends to remove the Trees but due to financial circumstances her proposed timeframe to achieve this is approximately 12 months. The Daleys are concerned that the Trees may fall before then and seek orders for their earlier removal.
Consent orders sought
-
At this afternoon’s onsite hearing the parties expressed some willingness for further negotiations, so the hearing was adjourned for a short period, after which they returned with proposed consent orders. Before making orders by consent, the Court must still be satisfied that the jurisdictional tests of the Trees Act are met for each tree that is the subject of the application and that the orders are appropriate for remedying, restraining or preventing damage to the applicants’ property, or for preventing injury.
Jurisdictional tests and suitability of orders
The fallen tree
-
The tree that fell stood on Ms Murray’s land. It damaged property on neighbouring land, including the fence along the common boundary. This satisfies the jurisdictional test at s 10(2) of the Trees Act: the fallen tree caused damage to the applicants’ property. That the tree is now removed does not prevent orders being made with regard to damage that it caused. According to s 4(4) of the Trees Act “a tree that is removed following damage or injury that gave rise to an application under Part 2 is still taken to be situated on land for the purposes of the application if the tree was situated wholly or principally on the land immediately before the damage or injury occurred.” It follows that the Court can make orders regarding the fallen tree.
-
The proposed consent orders include an order for Ms Murray to reimburse the Daleys for repairs they have completed to the damaged section of the fence. Considering the situation described above, this is an order that the Court would see fit to remedy damage caused by that tree. Ownership of the damaged property (the fence) is shared by the parties.
The two remaining trees
-
This afternoon I observed the two remaining Trees, both Spotted Gums (Corymbia maculata). They are tall, reaching some 15-20 metres in height. They both have wounds on their stems, perhaps a result of damage that occurred some years ago during landscaping works, before Ms Murray owned the property. The wound on the stem of the westernmost tree extends from ground level several metres up its northern side. Signs of borer damage, decay and termites are visible in the exposed necrotic areas. A similar but much smaller wound is on the northern side of the easternmost tree’s stem. Buttress roots below these wounds on both Trees are likely to be dead and decaying, as they have received no photosynthates from above for many years.
-
Landscaping works that occurred before Ms Murray’s purchase of the property clearly involved soil level changes and terracing of the ground. A large surface root near the easternmost tree is severely damaged and mostly dead. The root is close to the stem and is structural. It is likely that other structural roots were also damaged at the same time.
-
The stump of the fallen tree remains a short distance to the south of the easternmost tree. Very large rocks are plentiful in the garden, many partly submerged in the soil. The upturned stump of the fallen tree had no roots on one side where it grew against one of these large rocks. The remaining Trees have similar large rocks next to their stems. It is likely that their root systems too are restricted.
-
The combination of these factors – restricted root systems; damaged structural roots and disturbed soil; damaged root buttresses on the northern sides – significantly increases the risk of the Trees failing.
-
Other factors further increase the risk of failure. The site is very exposed, near the top of a hill. These Trees are taller than surrounding structures – their canopies would receive the full force of winds. The three trees grew together, but the large canopy of one tree is now missing. As a result the remaining two canopies are more exposed and are likely to experience higher wind loads than they did prior to the other tree falling.
-
For the reasons explained above, I conclude that both Trees are likely to fail in the near future, and are likely to cause damage to the applicants’ property and injury to people on the respondent’s property or any neighbouring property. Pruning cannot sufficiently reduce the risk. Removal of both Trees is required.
-
The jurisdictional tests are met and the proposed consent orders are an appropriate response to the situation. The orders include the parties’ agreed solution to addressing the need to remove the Trees and the respondent’s financial circumstances. The Daleys’ payment to Ms Murray of half the costs of tree removal is intended as a loan to enable the works to be completed promptly.
Orders
-
As a result of the foregoing, the orders of the Court by consent are:
The application is upheld.
Within seven days of the date of these orders, the Daleys are to pay Ms Murray $1,545.50, being half the amount quoted for removal of the two remaining Trees.
Within 60 days of the date of these orders Ms Murray is to engage and pay for a suitably qualified arborist (minimum AQF level 3) with all appropriate insurances to remove the trees to no more than 60 cm above ground level. The works are to be done in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry. Access for the works is to be gained principally through the respondent’s property.
Given reasonable notice the applicants are to allow access to their property if required during reasonable hours of the day to gather debris created during the works.
Within seven days of the date of these orders Ms Murray is to pay the Daleys $117.15, being half the costs incurred by them in repairing a damaged section of the common boundary fence.
Within 12 months of the date of these orders Ms Murray is to pay the Daleys $1,545.50, being a repayment of the amount she received in order (2).
____________________________
D Galwey
Acting Commissioner of the Court
**********
Decision last updated: 27 November 2015
Daley v Murray [2015] NSWLEC 1489
0
0
1