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…