Dewar v Dafville Pty Ltd

[2020] NSWLEC 1066

Land and Environment Court

New South Wales

Medium Neutral Citation:	Dewar v Dafville Pty Ltd [2020] NSWLEC 1066
Hearing dates:	13 February 2020
Date of orders:	13 February 2020
Decision date:	13 February 2020
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	(1)   The application is granted. (2)   Within 30 days of the date of these orders, the respondent is to engage and pay for a suitably qualified arborist (minimum AQF level 3) with all appropriate insurances to remove the tree that is the subject of this application to no more than one metre above ground level. (3)   These works must be carried out in accordance with the 2016 Safe Work Australia Guide to managing risks of tree trimming and removal work. (4)   The respondent is to give the applicants two days’ notice of the works in (2). (5)   The applicants are to allow all access required to complete the works in (2) during reasonable hours of the day.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – likelihood of damage – applicants seek tree removal and costs – no appearance by respondent – tree removal ordered
Legislation Cited:	Trees (Disputes Between Neighbours Act) 2006 (NSW) Uniform Civil Procedure Rules 2005
Texts Cited:	2016 Safe Work Australia Guide to managing risks of tree trimming and removal work
Category:	Principal judgment
Parties:	Kevin Dewar (First Applicant) Susan Dewar (Second Applicant) Dafville Pty Ltd (Respondent)
Representation:	Counsel: P Steele (Solicitor) (Applicants) No appearance (Respondent)   Solicitors: Peninsula Law (Applicants)
File Number(s):	2019/358333
Publication restriction:	No

Judgment

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

Background to the application

1. Behind and upslope from the Umina Beach property belonging to Susan and Kevin Dewar (‘the applicants’) is an undeveloped property owned by Dafville Pty Ltd (‘the respondent’). The respondent’s steep land is covered by native bushland. A few metres from the common boundary a Woollybutt (Eucalyptus longifolia) (‘the tree’) in very poor condition stands on the respondent’s property, its dead branches extending to and beyond the boundary. Dead branches have fallen from the tree. Concerned that further branch failures might damage their roof tiles or other parts of their dwelling, the Dewars wrote to the respondent in September and October of 2019 asking for the tree to be removed urgently. The Dewars wrote that they would make an application to this Court if no action was taken. The Dewars then filed their application on 14 November 2019, seeking orders pursuant to s 7 of the Trees (Disputes Between Neighbours Act) 2006 (NSW) (‘the Trees Act’) for tree removal and costs. On 9 December 2019 the respondent wrote to the Court requesting more time to obtain a land survey report. They wrote that they had applied to “Gosford Council” (the site is within Central Coast Council) to remove the tree.

2. During the two weeks before the hearing the applicants’ solicitor, Mr Steele, corresponded with the Court, asking the Court to make consent orders that were signed by himself and a solicitor for the respondent. There was no record on the file of the respondent appointing a solicitor. Mr Steele wrote that, to make the consent orders, the Court could rely on evidence in an arboricultural report (Exhibit B) filed with the application.

3. Having read the ‘Tree Risk Assessment Report’ written by Mark Bury, I determined that I could not make the proposed consent orders and the matter must proceed to an onsite hearing. The report is riddled with inconsistencies and statements that are not based on any evidence. Mr Bury identified the tree as two different species within the report: Angophora floribunda and Eucalyptus longifolia. He described the tree as 8 metres tall when his own photos show it is taller. Despite this apparently 8-metre tree being around 5 metres from a covered courtyard and 7 metres from the applicants’ dwelling proper, Mr Bury concluded it was likely to cause over $300,000 of damage to the dwelling. He wrote that the tree showed signs of “root plate shear failure” but provided no evidence of this. He wrote that the tree is on “Council Land”. He wrote that the site “would not be considered to be urban bushland.” Mr Bury’s report did not include any statement acknowledging that he agreed to be bound by the Expert Witness Code of Conduct in Schedule 7 of the Uniform Civil Procedure Rules 2005. His report is dated 10 August 2019, so was likely commissioned for the purpose of getting the respondent to agree to tree removal, rather than as expert evidence to be used in this Court. In fact, in his disclaimer on page 24 Mr Bury included: “The report is not to be used in Land and Environment Court without the author’s permission.” No written permission was provided. Even if the information within the report had seemed reliable, which it did not, I would not have based orders on the report without proceeding to an onsite hearing.

The onsite hearing

4. Mr Steele appeared for the applicants. The respondent did not appear. Mr Steele provided the contact number for the respondent’s solicitor with whom he had corresponded. Their office informed the Court via telephone that the solicitor was out of the office, had not received instructions to appear, and was under the impression that the matter had been settled. I heard the matter ex parte.

Orders for tree removal

5. The situation spoke for itself and required no expert evidence and little in the way of submissions from Mr Steele. The respondent’s property is bushland. The tree, Eucalyptus longifolia, is on the respondent’s property, several metres uphill from the applicants’ dwelling. It is 15 metres or more tall. For two metres above ground the stem is still alive, demonstrated by the presence of live epicormic shoots, but above this the tree’s stem and all its branches are dead. There are no signs of rootplate movement or instability. On the stem, a large fruiting body of a wood-decay fungus indicates internal decay. Dead branches in the crown are brittle. Branches have fallen and more are likely to fall in the near future. Branches are likely to damage the applicants’ roof tiles. This meets the jurisdictional test at s 10(2)(a) of the Trees Act, so I can make orders to prevent damage to the applicants’ property. Considering the condition of the tree, there is no practical alternative to removing it. The respondent will be ordered to remove the tree. There is no direct access to the respondent’s property, so access for the works must be through the applicants’ property.

Costs

6. Should the applicants file a Notice of Motion for costs, I note several relevant points. A solicitor for the respondent signed the proposed consent orders that were similar in nature to the orders made here. It is unclear why the respondent did not agree to removing the tree on those terms prior to the Dewars applying to the Court, thus saving their own legal expenses as well as the Dewars’ application fee and legal costs. As for the cost of Mr Bury’s report, considering its poor standard and lack of reliable substance, it seems to me that it would be unfair for the respondent to pay for that.

Orders

7. As a result of the foregoing, the Court orders:

1. The application is granted.

2. Within 30 days of the date of these orders, the respondent is to engage and pay for a suitably qualified arborist (minimum AQF level 3) with all appropriate insurances to remove the tree that is the subject of this application to no more than one metre above ground level.

3. These works must be carried out in accordance with the 2016 Safe Work Australia Guide to managing risks of tree trimming and removal work.

4. The respondent is to give the applicants two days’ notice of the works in (2).

5. The applicants are to allow all access required to complete the works in (2) during reasonable hours of the day.

……………………………….

D Galwey

Acting Commissioner of the Court

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Decision last updated: 21 February 2020