Horvat v Golledge

[2011] NSWLEC 1016

Land and Environment Court

New South Wales

Medium Neutral Citation:

Horvat v Golledge [2011] NSWLEC 1016

Hearing dates:

21 January 2011

Decision date:

21 January 2011

Jurisdiction:

Class 2

Before:

Galwey AC
Fakes C

Decision:

1. Application to remove tree dismissed.

2. Application for compensation dismissed

3. Respondents to engage and pay for an AQF level 3 arborist to remove all dead wood down to 20 mm in diameter.

4. The work is to be completed within 60 days of the date of these orders.

5. The work is to be carried out in accordance with AS4373:2007 and the WorkCover Code of Practice for the Amenity Tree Industry.

6. Orders 3 and 5 are to be undertaken every 2 years within 14 days either side of the anniversary of these orders.

Catchwords:

TREES [NEIGHBOURS]; damage to property, injury to persons; tree subject to a previous application.

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006

Cases Cited:

Ball v Bahramali & Anor [2010] NSWLEC 1334

Category:

Principal judgment

Parties:

Frank Horvat (Applicant)
Kevin Golledge (Respondent)

Representation:

Mark Horvat [agent] (Applicant)
Kevin Golledge [litigant in person] (Respondent)

File Number(s):

20758 of 2010

Judgment

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

1. COMMISSIONERS: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Georges Hall against the owner of a tree growing on an adjoining property. The applicant is represented by his grandson, Mr Mark Horvat.

1. The applicant is seeking the removal of the tree as he contends it has caused damage to his property as well as injury to himself and it is likely to do so in future.

1. The applicant is also seeking compensation of $220 to replace 2 colourbond roof sheets of a pigeon coop.

1. The tree is a Eucalyptus scoparia (Wallangarra White Gum) in average health with less than 5% dead wood in the canopy, some of which is up to 60mm in diameter. The crown mostly overhangs the respondent's property but a portion overhangs the north-eastern corner of the applicant's property.

1. The tree was the subject of a previous application made under the Act in 2009. Orders were given by the Court for the tree to be pruned specifically for removal of dead wood down to 20mm in diameter. The respondent carried out these orders in July 2009. At that time some additional pruning was carried out on the tree.

1. The applicant contends that since that time further limbs have fallen; one on the 24 April 2010 causing damage to the roof of the pigeon coop located beneath the tree, and another hitting the applicant in June 2010. The applicant states that limbs that have fallen are mostly dead and are up to 50mm in diameter. We were shown branches of this size and broken branch stubs could be seen in the tree's crown.

1. The applicant states that the tree is declining and poses a risk of future damage or injury through falling limbs.

1. Before the Court can make an order, it must be satisfied, under s 10(1)(a) that the applicant has made a reasonable effort to reach agreement with the tree's owner.

1. The respondent stated that he had not been approached about the tree since the 2009 hearing. The applicant stated that his wife had informed the respondent's wife that a branch had fallen. For the reasons outlined in Ball v Bahramali [2010] NSWLEC 1334 at paras 41-44, the Court considers that sufficient opportunity exists until the end of the hearing and we are satisfied that s 10(1)(a) is met.

1. Under s 10(2) of the Act, 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. We find that on the evidence before us, falling branches are likely to have caused the damage - one dent in the roof of the pigeon coop, and a minor injury to the applicant. We also find that there is a risk that falling dead branches may, in the near future, cause damage or injury. Therefore as several of the tests under s 10(2) are satisfied, the jurisdiction is enlivened and the Court may make an order.

1. However, before making an order under s9, the Court must consider a number of matters under s12 of the Act. The relevant clauses are:

(a)   The tree is entirely on the respondent's land.

(b2) The removal of dead wood will have no impact on the tree's health or structure.

(b3) The tree provides shade to the respondent's back yard and is valued for that reason.

(d) The tree is likely to contribute to the local ecosystem.

(e) The tree contributes to the scenic value of the land on which it is growing and to the locality.

(h&i)(ii) The respondent has carried out the pruning ordered by the Court and also removed additional branches.

1. The Court has a degree of discretion in the making of orders under s 9. We consider that the damage to the roof of the pigeon coop is minor and cosmetic in nature and that the coop is still functional. We do not think that the roof needs to be replaced and therefore no orders will be made for the payment of compensation.

1. We find that there is dead wood in the crown and that the failure of that dead wood is predictable and may cause damage or injury. We therefore consider that the removal of dead wood is warranted. However, considering the value of the tree, its overall condition and the minor amount of dead wood, the removal of the tree is not warranted.

1. Therefore, the Orders of the Court are:

(1)   The application to remove the tree is dismissed.

(2)   The application for compensation is dismissed.

(3)   The respondent is to engage and pay for an AQF level 3 arborist to remove all dead wood down to 20 mm in diameter.

(4)   This work is to be completed within 60 days of the dates of these orders.

(5)   The work is to be carried out in accordance with AS4373:2007 Pruning of Amenity Trees and with the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(6)   Orders 3 and 5 are to be undertaken every 2 years within 14 days either side of the anniversary of these orders.

D. Galwey

Acting Commissioner of the Court

J Fakes

Commissioner of the Court

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Decision last updated: 08 February 2011