Hacene v Sneddon

[2007] NSWLEC 615

Land and Environment Court

of New South Wales

CITATION:

Hacene v Sneddon [2007] NSWLEC 615

PARTIES:

APPLICANT
Christel and Youcef Hacene

RESPONDENT
Sue and Bruce Sneddon

FILE NUMBER(S):

20637 of 2007

CORAM:

Hoffman C

KEY ISSUES:

Trees (Neighbours) :- Removal of a tree, damage to property, safety to persons, bifurcated trunk, cost of removal

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

17/09/2007

EX TEMPORE JUDGMENT DATE:

17 September 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr and Mrs Hacene, litigants in person

RESPONDENT
Mr and Mrs Sneddon, litigants in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

17 September 2007

20637 of 2007 Christel and Youcef Hacene v Sue and Bruce Sneddon

JUDGMENT

1 This is Appeal No. 20637 of 2007 between Christel Hacene and Anor v Bruce Sneddon and Anor in regard to a tree in a front yard of No. 28 Valley View Crescent, Glendale.

2 An on-site hearing was held on 17 September 2007. Present at the hearing was Mr and Mrs Hacene, Applicants, self represented and Mr and Mrs Sneddon, Respondents, self represented.

3 In the appeal Mr Hacene said that although there had been significant damage to his house, in his opinion and those of his witnesses, from the subject tree and other trees. He was not seeking any compensation for damages as apparently those costs were being covered by insurance.

4 During the storms in June/July of 2007 very large trees on No. 28 Valley View Crescent, had fallen and impacted upon buildings on both No. 30 Valley View Crescent, the Hacene’s, and upon No. 26 Valley View Crescent owned by the Collins.

5 In the case of the subject tree four eyewitnesses had provided letters to Mr and Mrs Hacene indicating that during the storm they had seen the subject tree being whipped around so much by the storm that it’s branches appeared to impact the roof. Mr Hacene was inside at the time with his wife and they heard the impacts on the roof and subsequently during the storm water came in. After the storm there were branches not on roof but in other parts of the property and adjoining properties any of which he said could have done the damage and blown off. However, the letters submitted by the neighbours who had observed the damage all indicated that the subject tree had been the source of damage to the house whilst other trees had been the source of damage to the garage, pergola and pool areas.

6 The letters from the eye-witnesses were tendered:

• Mr M Wood, No. 24 Valley View Crescent,
• Ms D. Cain, of No 15 Valley View Crescent,
• Mr P. Dodd of No. 17 Valley View Crescent and
• Ms Y Sydenham and Mr A Sydenham of No. 13 Valley View Crescent

7 Mr Hacene sought to have the tree removed. The respondent had not called for cross examination the persons who were eye-witnesses and written the above letters. Therefore their evidence stood.

8 The tree is a tall gum possibly 20 to 25 metres tall having twin trunks which fork close to the ground. Mr Hacene said that he had been advised by Arborists working with Emergency Services after the storm of 8 June that the tree had included bark at the fork of the two trunks and the cavity at the fork contained wood rot.

9 An inspection of the tree showed that indeed, it appeared to have included bark connection at the point of the fork of the twin trunks. Also there was a deep hollow in the fork possibly as deep as 300 millimetres which was damp and appeared to verify the opinion that it was potentially dangerous. The tree being about 20-25 m tall if it fell towards the Hacene’s house, which was about 5 metres away, would cover the whole of the house with impact on its structure. The house is a timber frame building with a tiled roof.

10 Mr Sneddon said that in his opinion if Mr Hacene wants the tree removed then he should pay for the cost. He would prefer to keep the tree as it is indeed an attractive feature of the front yard. However if the Court’s decision was that it be removed then he would abide by that.

11 In considering the evidence I have formed the opinion that the tree is potentially unsafe and presents a real hazard to the house and possibly human life for the occupants of No. 30 Valley View Crescent, and that it should be removed.

12 In regard to the cost of removal Mr Hacene said that there had been numerous occasions of damage from branches and trees impacting on his property from No. 28 and he had always paid for those costs and accepted the stress and other obligations of attending to the repairs. He felt that in this particular case he was not prepared to pay any of the cost burden of removing the tree.

13 I have formed the opinion that since the tree has a structural fault which makes it dangerous, and the fact that four witnesses have given uncontested letters that the subject tree was the source of recent roof damage from the storms in June, the cost of its removal should be at the cost of its owner at No. 28 Valley View Crescent.

14 Therefore the Orders of the Court are:

1. The appeal is upheld.
2. The subject tree in the front yard of No. 28 Valley View Crescent, Glendale is to be removed.
3. The removal must take place within 3 calendar months of this judgment.
4. The cost of removal to be borne by the owner of No. 28 Valley View Crescent.

___________________

K G Hoffman
Commissioner of the Court
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