Jeong v Tse

[2010] NSWLEC 1109

Land and Environment Court

of New South Wales

CITATION:

Jeong v Tse & Anor [2010] NSWLEC 1109

PARTIES:

APPLICANT
Hyo Eun Jeong

RESPONDENTS
Poon Ling and Lynette Dawn Tse

FILE NUMBER(S):

20256 of 2010

CORAM:

Fakes C

KEY ISSUES:

TREES (NEIGHBOURS) :- Damage to property
Injury to persons
Compensation refused
Tree removed

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

12/05/2010

 
DATE OF JUDGMENT: 

12 May 2010

EX TEMPORE JUDGMENT DATE:

12 May 2010

LEGAL REPRESENTATIVES:

APPLICANT
Hyo Eun Jeong [litigant in person]

RESPONDENT
Poon Ling Tse [litigant in person]
Lynette Dawn Tse [litigant in person]

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C

12 May 2010

20256 of 2010 Hyo Eun Jeong v Poon Ling Tse and Lynette Dawn Tse

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 s 7 of the Trees (Disputes Between Neighbours) Act 2006 made by the owner of a property in Dudley Street Asquith against the owners of tree growing at the rear of a property in Sunnymeade Close Asquith.

2 The applicant is seeking the removal of the tree as he contends that falling branches from the tree have caused damage to his property and could continue to do so. He is also concerned that falling debris, or indeed the failure of the entire tree, could injure his family or visitors.

3 The applicant is also seeking compensation for a sum of $400 for repair of a garden shed, said to have been damaged by a falling branch.

4 Dealing with the compensation element of the application first. At the preliminary hearing on 19 April, the applicant was given the standard Court directions for tree matters. Direction 6 states that for compensation claims, the applicant is to provide details (including copies of any correspondence) of when and how the damage was brought to the attention of the owner of the tree (if this information has not been provided as part of the application).

5 Direction 7 states that The applicant’s documents are to detail the basis of any amount claimed for past damage (including all relevant receipts and/or invoices) and any quotations for proposed works which the applicant seeks that the Court orders be undertaken…).

6 As neither of these directions was complied with, this element of the application is dismissed.

7 The tree is a dead Pinus sp. (Pine) located in the north-western corner of the respondents’ property. The tree is approximately 16 m tall. The trunk is substantially covered in Wisteria and Ivy however the upper branches are clearly visible. There is one major dead and detached branch caught towards the top of the canopy that is likely to fall. The tree appears to have been dead for some time as there are signs of deterioration of large branches.

8 The applicant states that he brought the condition of the tree to the attention of the respondents when he purchased his property some three years ago. He contends that the tree was dead at that time.

9 The respondents state that they believe the tree had some live branches on it when they moved out and rented the property about 18 months ago. However, as previously stated, it appears that the tree has been dead for some time.

10 The applicant states that several branches fell from the tree earlier this year. Photographs included in the application clearly show a dead pine branch on the roof of the shed and another close to a set of children’s swings.

11 He contends that he notified the respondents’ property manager who then informed the respondents.

12 The respondents subsequently informed their property manager that they would give permission to the applicant to remove any overhanging branches, at his expense, as this was the arrangement they had with the former owner of the Dudley Street property.

13 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. Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of whether the damage or likelihood of injury is sufficiently serious to warrant the intervention of the Court, and if so what should be ordered and who should pay.

14 In this matter I am satisfied that the falling of dead branches from the tree has caused damage to the applicant’s property and could continue to do so. I am also satisfied that the state of deterioration of the dead branches is such that they will continue to fall and could cause injury to any person in the immediate vicinity. This includes any person on the respondents’ property or on adjoining properties over which some branches hang.

15 The applicant is concerned about the failure of the entire tree onto his property. There is no evidence to suggest that this is likely to occur. The orders specify that the tree is to be cut to a minimum height above ground of 6m. Should the respondents wish to have the tree removed to ground level, or at any height less than 6m, they can do so however there is no obligation, under the orders, to do so.

16 Therefore as three of the four tests under s 10(2) are met, the jurisdiction is enlivened and the Court can make an order under s 9.

17 The Orders of the Court are:

1. The application to remove the tree is allowed.
2. The application for compensation is dismissed.
3. The owners of the trees are to engage and pay for an AQF level 3 arborist to remove the tree to a minimum height of 6 m. Any lateral branches on the remaining section of trunk are to be removed back to the trunk.
4. The work is to be carried out in accordance with the WorkCover Code of Practice for the Amenity Tree Industry .
5. The works are to be completed within 30 days of the date of these orders.
6. The applicant is to provide all reasonable access, if required by the arborist, to enable the works to be completed in a safe and efficient manner.
7. The respondents’ tenant and the applicant are to be given at leat 3 working day’s notice of the commencement of the works.

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