Duncan v Osland

[2013] NSWLEC 1136

Land and Environment Court

New South Wales

Medium Neutral Citation:	Duncan & anor v Osland [2013] NSWLEC 1136
Hearing dates:	23 July 2013
Decision date:	23 July 2013
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application upheld; tree to be removed; compensation for damage
Catchwords:	TREES [NEIGHBOURS] Damage to property; possible injury; compensation for damaged property
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Ghazal v Vella (No. 2) [2011] NSWLEC 1340
Category:	Principal judgment
Parties:	Mr G & Mrs S Duncan (Applicants) Mr G Osland (Respondent)
Representation:	Applicants: Mr G & Mrs S Duncan (litigants in person) Respondent: Mr G Osland (Litigant in person)
File Number(s):	20322 of 2013

Judgment

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

1. COMMISSIONER: This is an application pursuant to s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owners of a property in Rathmines against the owner of a tree growing on an adjoining property.

1. The applicants are seeking orders for the removal of dead wood from the tree or the removal of the tree on the basis that falling dead wood has caused damage to the roof of a freestanding rumpus room and could continue to do so. They are also concerned that falling branches may injure someone.

1. The respondent has no objections to removing the tree but was under the impression that permission was required from the local council.

1. In applications under Part 2, the key jurisdictional test is found in s 10(2). This states that the Court must not make an order unless it is satisfied that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant's property or is likely to cause injury to any person.

1. The tree in question is an over-mature/ senescent Eucalypt. Its size and location suggest that it is a remnant of the original bushland. It is located in the rear north-eastern corner of the respondent's property. It partially overhangs the applicants' property to the east and another property to the north.

1. Photographs in the application claim form, verified on site, show that most of the upper canopy of the tree is dead. The remaining foliage is on lower branches and there is a significant proportion of epicormic growth on some of those living branches. There are some small hollows in the tree. The respondent stated that the tree has been in this condition for some time.

1. During Easter 2013, a dead branch fell from the tree onto the roof of the rumpus room below. It created a 400 mm long crack in the metal sheeting. The respondent was advised of the damage shortly after it happened. A letter in the claim form indicates that the respondent was advised of the problem with the tree in 2010.

1. I am satisfied that the tree caused the damage to the applicants' roof, and that given its condition, it could…