Hussain v Mehic

[2010] NSWLEC 1287

Land and Environment Court

of New South Wales

CITATION:

Hussain v Mehic [2010] NSWLEC 1287

PARTIES:

APPLICANT
S Hussain

RESPONDENTS
E & J Mehic

FILE NUMBER(S):

20620 of 2010

CORAM:

Hewett AC - Fakes C

KEY ISSUES:

TREES (NEIGHBOURS) :- damage to property-broken tiles, risk of injury, compensation, tree removal sought, pruning of dead wood ordered.

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

CASES CITED:

Barker v Kyriakides [2007] NSWLEC 292

DATES OF HEARING:

21/10/10

 
DATE OF JUDGMENT: 

21 October 2010

EX TEMPORE JUDGMENT DATE:

21 October 2010

LEGAL REPRESENTATIVES:

APPLICANT
Mr S Hussain [litigant in person]

RESPONDENT
Mr E Mehic [litigant in person]

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hewett AC
Fakes C

21 October 2010

20620 of 2010 Hussain v Mehic

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 Rooty Hill against the owner of a tree growing on adjacent land. The respondent was present at the hearing.

2 The applicant is seeking the removal of the tree as he contends that the tree has caused damage to his property and could continue to do so.

3 The applicant also contends that the tree could cause injury to any person as a consequence of dead branches that fall from the tree from time to time.

4 The applicant also seeks compensation for a sum of $970 for replacement of roof tiles on the basis of two quotations for the replacement of tiles and the repair of roof trusses on two occasions.

5 The tree is a mature Grey Box (Eucalyptus moluccana), a locally indigenous species, approximately 18 metres in height, in general good health and with no obvious visible defects. Less than 5% of the tree canopy is comprised of dead wood. We were only able to inspect the tree from the applicant’s property as the respondents’ property is tenanted and access was unavailable at the time of our inspection. The tree is growing some 3 to 4 metres from the applicant’s dwelling.

6 The damage said to be caused by the tree is the breaking and cracking of several roof tiles. The first time this happened was in 2009. After this incident the applicant stated that he contacted the council who advised him to contact the tree owner. The applicant contends that he did contact the owner, who is the respondent in this case. He said he did not receive any reply and he then proceeded to replace the broken tiles, however there is no invoice for that work.

7 In 2010 two tiles were damaged as a result of falling dead wood. This damage had not been repaired at the time of our inspection.

8 The applicant also drew our attention to leaf litter on the pavement at the rear of the house and small twigs and leaves in the roof guttering that he said he needed to clean out every 2 to 3 months.

9 The applicant said he was concerned at the risk of injury to his children when playing in the back garden.

10 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.

11 In this regard we are satisfied that the respondents’ tree has caused damage to tiles on the applicant’s roof and that future damage could occur.

12 We are also of the opinion that falling dead wood could cause injury to any person.

13 Therefore, as three of the tests under s 10(2) of the Act are satisfied, the jurisdiction of the Court is enlivened and the Court may make orders.

14 However, in making an order the Court must consider a number of matters under s 12 of the Act. The relevant matters in this case are:

(a) The tree is wholly located on the respondent’s property

(b2) The pruning of dead wood would not have a detrimental impact on the tree

(d) Because of the size and the species of tree it is likely to be a remnant of the original vegetation of the area and it will make a contribution to the local ecosystem and to biodiversity

(e)&(f) Because the tree is clearly visible in the area it contributes to the natural landscape of the locality and it has some value to public amenity

(h)&(i) The respondent sought to have the tree removed when he developed his land in 2005, however the previous owner of the house on the applicant’s land pressed for the retention of the tree. As a result the council placed a bond on the tree and required its retention. The respondent says he has since gained advice from council that they would not refuse an application to remove the tree under the Tree Preservation Order. In addition, the respondent offered to pay 50% of the cost of removal in response to the applicant’s request for the tree to be removed.

15 On the evidence before us we are satisfied that dead wood falling from the tree has caused damage, could cause damage and could cause injury to a person.

16 However, based on our visual inspection of the tree and of the photographic evidence before us we see no reason to remove live branches and we do not see any reason to order the removal of the tree. We have no evidence of the falling of live branches from this tree.

17 With respect to the applicant’s concerns about the dropping of leaves and small twigs to his roof gutters and pavement, we are not minded to make any order on these matters. In the Tree Dispute Principle published in Barker v Kyriakides [2007] NSWLEC 292 the Court has held that those who live in urban leafy environs and who obtain the benefits of trees, the dropping of leaves and other debris from a tree would not ordinarily lead to the making of orders for the intervention with that tree. It is expected that a degree of normal housekeeping be undertaken and in this case, the cleaning of gutters every 2 to 3 months does not appear onerous.

18 With respect to the claim for compensation, the evidence provided was in the form of two quotes, neither of which we consider was commensurate with the actual damage shown in photographic evidence and as seen at the site hearing. Therefore we will not be making orders for the payment of compensation in the amount claimed. However it is reasonable to expect some compensation in respect of the two damaged roof tiles.

19 Therefore as a result of the foregoing the Orders of the Court are as follows:

1. The application is upheld in part
2. The application to remove the tree is refused
3. The application for compensation of $970 is refused
4. The respondent is to engage and pay for an AQF level 3 arborist to remove all dead wood down to a size of 25mm in basal diameter. This work is to be carried out in accordance with AS4373:2007 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry
5. The applicant is to provide reasonable access for the work to be carried out in a safe and efficient manner.
6. The respondent is to give the applicant a minimum of two working days notice prior to commencement of the work.
7. The pruning work is to be completed within 30 days of the date of these orders.
8. The respondent is to pay the cost of the replacement of 2 tiles to be provided by the applicant to the maximum cost of $50. This work is to be completed within 30 days of the date of these orders.
9. The respondent is to reimburse the applicant within 21 days of the receipt of a tax invoice for the tile replacement.

____________________________________

P Hewett
Acting Commissioner of the Court

____________________________________

J Fakes
Commissioner of the Court