Kamboj v Breach; Gonzales v Breach

[2016] NSWLEC 1584

Land and Environment Court

New South Wales

Medium Neutral Citation:	Kamboj v Breach; Gonzales v Breach [2016] NSWLEC 1584
Hearing dates:	6 December 2016
Date of orders:	06 December 2016
Decision date:	06 December 2016
Jurisdiction:	Class 2
Before:	Fakes AC
Decision:	Application granted see [11]
Catchwords:	TREES [NEIGHBOURS] Damage to property; potential injury
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Uniform Civil Procedure Rules 2005
Cases Cited:	Barker v Kryiakides [2007] NSWLEC 292 Liang & anor v Marsh & anor [2011] NSWLEC 1026 Robson v Leischke [2008] NSWLEC 152
Category:	Principal judgment
Parties:	Mr H S Kamboj (Applicant: 16/273280) Ms L S Gonzales (Applicant: 16/282510) Mr D Breach (Respondent both matters)
Representation:	Applicant 16/273280: Mr H Kamboj (Litigant in person) Applicant: 16/282510: Ms L Gonzales (Litigant in person) Respondent: Mr D Breach (Litigant in person)
File Number(s):	273280 of 2016 and 282510 of 2016

Judgment

1. COMMISSIONER: The applicants in these two proceedings, Mr Kamboj and Ms Gonzales, own properties which directly adjoin the rear of the respondent’s Blacktown property. Both applicants have applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of a large and declining Eucalypt growing against the common dividing fence between the parties’ properties.

2. The orders are sought on the basis that the tree is hollow at its base and should it fail, it could cause damage to both applicants’ properties and or injury to anyone on those properties at the time. Mr Kamboj is also concerned that the tree has damaged the dividing fence between his property and that of the respondent.

3. In applications under Part 2, the key jurisdictional test is found in s 10(2). This states:

(2)   The Court must not make an order under this Part unless it is satisfied that the tree concerned:

(a)   has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or

(b)   is likely to cause injury to any person.

4. None of the parties provided any independent arboricultural evidence that would meet the requirements of Schedule 7 in the Uniform Civil Procedure Rules 2005. With the arboricultural expertise I bring to the Court I observed the tree to be a mature specimen of Eucalyptus tereticornis (Forest Red Gum), a species naturally found in the area. The tree is in an advanced state of decline. One of the main upper stems is dead and the remaining structural branches have very thin canopies and significant amounts of dead wood. The tree is bifurcated near its base and there is significant decay. The stems appear to have started to separate.

5. I am satisfied on the basis of the condition of the tree that as it continues to decline, branch and stem failure is inevitable. The failure of sections of the tree could cause injury to anyone on any of the three properties. While the branches are some distance from the applicants’ dwellings, limb/stem failure could damage the dividing fence. I am also satisfied that the expansion of the trunk has displaced a number of palings on Mr Kamboj’s side of the dividing fence, however this is likely to have occurred before Mr Kamboj purchased his property about two years ago. Some displacement of palings is also likely to have been caused by a vine growing on the respondent’s property and which he has been attempting to kill. The vine is not part of Mr Kamboj’s application.

6. During the on-site hearing, Ms Gonzales indicated shrubs, probably Allamanda spp., growing on the respondent’s property but overhanging her fence. She is concerned that flowers falling from the shrubs litter her yard. The shrubs are less than 3m tall. The respondent stated that he does prune them but can’t access the parts that overhang her property. The respondent has no objection to Ms Gonzales pruning any overhanging material. While this may be an agreement between the parties, for several reasons, it is not an order the Court will make. Firstly, these plants were not part of Ms Gonzales’ application and therefore it would be procedurally unfair to allow them in at the last minute; further, it would not engage the Court’s jurisdiction as no damage or injury has been caused or is likely to be caused by them. Mere overhanging is not damage and the dropping of debris is not usually a reason for the Court to make orders (see the Tree Dispute Principle in Barker v Kryiakides [2007] NSWLEC 292).

7. Returning to the Eucalypt, as s 10(2) is satisfied, the Court’s jurisdiction to make orders about that tree is engaged.

8. While the tree may contribute to the local ecosystem and would have once contributed to the amenity of the area, its advanced state of decline and its hazardous nature outweigh any benefits the tree may have.

9. Mr Kamboj submits that the tree should be removed to ground level in order to facilitate the repair of the portion of the dividing fence that has been displaced by the tree. He also contends that the stump should be treated to ensure against potential termite infestation. Mr Kamboj obtained a brief report from a Pest Controller who noted the decay at the base of the tree but states that he found no evidence of termites.

10. In my view, no remedial action is either practical or appropriate and the only order that can be made is that the tree must be removed. The parts of the tree most likely to fail are the upper parts of the canopy. It will be sufficient, for risk management purposes, to remove the tree to a height no greater than 3m above ground. The remaining section is to be poisoned to prevent suckering. In regards to Mr Kamboj’s request that the tree be removed to ground level, I note the Pest Controller’s statement and the fact that the Trees Act is limited to trees and not to other organisms that may use them for food or habitat (see Robson v Leischke [2008] NSWLEC 152 at [189]). As stated above, the damage to the fence is highly likely to have pre-dated Mr Kamboj’s purchase of the property (see Liang & anor v Marsh & anor [2011] NSWLEC 1026 at [33] to [35]). Some of the palings have been displaced, however the impact is aesthetic rather than functional. The respondent will be required to rectify any palings displaced when the majority of the tree is removed.

11. Therefore, as a consequence of the foregoing, the Orders of the Court are:

1. Within 90 days of the date of these orders, the respondent is to engage and pay for an arborist with a minimum qualification in Arboriculture of AQF 3 and current and appropriate insurance cover to remove the tree to a maximum height of 3m above ground; removal to less than this height is at the respondent’s discretion.

2. The work is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry, or its equivalent.

3. Should it be required, the applicants are to provide reasonable access on reasonable notice for the purpose of quoting and or the safe and efficient carrying out of the works in order 1.

4. Within 14 days of the completion of the works in (1), the respondent is to refix any loose or dislodged palings on Mr Kamboj’s property.

5. Mr Kamboj is to provide the respondent with access on reasonable notice for the refixing of any palings.

______________________

Judy Fakes

Acting Commissioner of the Court

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Decision last updated: 07 December 2016