Duckett v Duffy

[2009] NSWLEC 1322

Land and Environment Court

of New South Wales

CITATION:

Duckett v Duffy [2009] NSWLEC 1322

PARTIES:

APPLICANT
Kevin Duckett

RESPONDENT
Sean and Lee Duffy

FILE NUMBER(S):

20349 of 2009

CORAM:

Thyer AC

KEY ISSUES:

TREES (NEIGHBOURS) :- removal of the tree and compensation

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

11 September 2009

EX TEMPORE JUDGMENT DATE:

11 September 2009

LEGAL REPRESENTATIVES:

APPLICANT
Kevin Duckett (litigants in person)

RESPONDENT
Sean and Lee Duffy (litigants in person)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

11 September 2009

20349 of 2009 Kevin Duckett v Sean and Lee Duffy

JUDGMENT

1 A large, mostly dead Gum Tree stands in the rear yard of 83 Manoa Road, Budgewoi which is owned by Sean & Lee Duffy. The edge of the tree trunk is about one metre from the common boundary with the adjoining property to the east, and some branches overhang that property.

2 Mr Duckett is the owner of 86 Sunrise Avenue, Budgewoi, the adjoining property to the east. He makes an application under the Trees (Disputes Between Neighbours) Act 2006 (the Act) for removal of the tree and compensation of $220 for repair of the swimming pool fence which was damaged by a falling dead branch from the tree. He seeks orders for removal of the tree.

3 When assessing an application under the Act, the Court must be satisfied that one or more of the four tests in s 10(2)(a) and (b) of the Act are met by the tree before making an order regarding that tree. These tests are:

Has the tree caused damage to the applicant’s property on the land?
Is the tree now causing damage to the applicant’s property on the land?
Is the tree likely in the near future to cause damage to the applicant’s property on the land?
Is the tree likely to cause injury to any person?

4 Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of:

Is the damage or risk sufficiently serious to warrant the Court intervening?
If so, what should the Court order?
Who should pay to carry out those orders?

5 I observed the tree at the hearing and find it to be a Gum tree (Eucalyptus sp) approximately 15 metres tall with crown spread of about 10 metres and a trunk diameter of about 0.5 m. The crown of the tree is about 90% dead with only small sections of live leaf.

6 I observed injury to the bark and decay in the timber at the base of the tree. I also observed that a branch from the adjoining tree has been rubbing against the trunk at about two metres above ground, causing damage. That area appears to be the access site for longicorn beetles, and their larvae are likely to have caused the death of bark and cambium over more than half the base of the tree up to about 2 metres height.

7 My assessment is that the tree is in serious decline and will not recover.

8 I observed much deadwood in the crown of the tree, and some of that appears to be in an advanced stage of decay. On that basis, I find that further dropping of dead branches is likely.

9 In relation to the tests under s10(2) of the Act, a dead branch has fallen and damaged the pool fence of Mr Duckett’s property in the past, meeting the first test in s10(2)(a) of the Act. I Find that further branches are likely to fall and cause damage to Mr Duckett’s property in the near future, meeting the third test in s10(2)(a), and those branches also present a serious risk of injury to persons, meeting the test in s10(2)(b) of the Act. I am therefore able to make orders regarding the tree.

10 I find that the tree should be removed within a period of three months because of the serious likelihood of damage and injury.

11 It is the Duffys’ opinion that the tree may have been damaged by construction of Mr Duckett’s pool which was completed in his backyard, to the north-east of the tree, in 2008. However, I note that Mr Duckett says the tree has been dying for a couple of years, and that only a small number of roots up to about 30 mm thickness were pruned when the pool was built. On the basis of the information observed and provided, I find that the tree is dying principally due to damage at the root crown and on the trunk of the tree and the effect of subsequent decay fungi and borers.

12 Ms Duffy says that they will have some financial difficulty in meeting the cost of removal of the tree, but that an extension of time to carry out the work would not be of benefit. On that basis, due to the serious risk of damage and injury from the tree, I will order that the tree be removed at the Duffys’ cost by 15 December 2009.

13 I note that at the hearing, Mr Duckett has withdrawn his claim for $220 compensation for repairs to the pool fence, in order to reduce the financial cost to the Duffys. I acknowledge the withdrawal of that claim, and will not make any order for compensation.

Orders

14 The application is upheld in part and the Court makes the following Orders:

1. These orders apply to 83 Manoa Road, Budgewoi;
2. The tree shall be removed to a height of less than 2 metres, at the Duffys’ cost, by 15 December 2009, by a contractor with suitable insurances;
3. Mr Duckett shall allow access for persons but not vehicles over his property for the work to be carried out, on reasonable notice and at reasonable times.

___________________

Peter Thyer
Acting Commissioner of the Court
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