Karabolovski v Watts
[2019] NSWLEC 1444
•13 September 2019
Land and Environment Court
New South Wales
Medium Neutral Citation: Karabolovski v Watts [2019] NSWLEC 1444 Hearing dates: 13 September 2019 Date of orders: 13 September 2019 Decision date: 13 September 2019 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is dismissed.
Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – risk of damage or injury – extent of damage – benefits of the tree Legislation Cited: Trees (Disputes Between Neighbours Act) 2006 (NSW) Category: Principal judgment Parties: Peter Karabolovski (First Applicant)
Rosa Karabolovski (Second Applicant)
Peter Watts (First Respondent)
Tonia Parker-Watts (Second Respondent)Representation: Counsel:
Solicitors:
R Karabolovski (Litigant in person) (Applicants)
C Adams (Solicitor) (Respondents)
Christopher Adams and Associates (Respondents)
File Number(s): 2019/138932 Publication restriction: No
Judgment
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
Background
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When Peter and Rosa Karabolovski (‘the applicants’) first purchased their Mangerton property, there were several units on the land. They have since demolished those units and constructed a single dwelling, where they live.
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Six years ago, Peter Watts and Tonia Parker-Watts (‘the respondents’) purchased the neighbouring propriety. Two large native trees grow on their property, one in the front setback and another (‘the tree’) in their rear garden, the latter next to the common boundary shared with the Karabolovskis and partly overhanging their property.
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The Karabolovskis have spent some effort trying to get the tree pruned. Concerned about damage and injury the tree may cause, and damage they say it has already caused, they applied to the Court, pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’), seeking orders for the tree to be removed, compensation and costs. Commissioners do not have the power to order costs so they would need to file a Notice of Motion with the Court should they wish to pursue that element of their application.
Framework of this decision
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Before the Court can make any orders, s 10(2) of the Trees Act requires it to first be satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicants’ property, or is likely to cause injury to any person. If satisfied of this test, the Court must consider a range of relevant matters set out at s 12 before making appropriate orders to remedy, restrain or prevent the damage, or to prevent injury.
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The hearing took place onsite this morning. Mrs Karabolovski represented herself and her husband. Mr Adams represented the respondents. They relied on a report by arborist Matthew Reed, who was not present at the hearing.
The tree
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The tree is a mature Blackbutt (Eucalyptus pilularis), part of the naturally occurring vegetation community of the area. It is approximately 20 metres tall and stands approximately one metre from the boundary fence, five metres from the applicants’ dwelling and ten metres from the respondents’ dwelling.
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This Blackbutt is in good health and has no obvious major structural defects. It was pruned in January and holds little deadwood in its crown. Mr Reed noted a defect on one branch. He conducted a risk assessment using the International Society of Arboriculture’s Tree Risk Assessment Qualification (TRAQ) methodology, and found a low risk of damage or injury from total tree failure or branch failure.
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A climbing fig has grown up the tree’s stem, partially concealing the stem’s condition, but there are no signs it has caused any damage. The respondents have begun its removal on advice from Mr Reed.
Has the tree caused damage, or is it likely to cause damage or injury?
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Mrs Karabolovski submitted that the tree has damaged their property. On numerous occasions branches have fallen from the tree onto their roof, breaking tiles. She said tiles have been repaired many times. She showed the Court one broken tile on the lower roof and minor damage to some gutter guard. She provided photos of other broken tiles. She filed a receipt from a builder for repairing roof capping.
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Mrs Karabolovski said the original fence was damaged by the tree and has been replaced, and that the tree damaged the units and a clothesline previously on their property. She provided no evidence of this.
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Mrs Karabolovski is worried that the tree will drop more branches, causing damage or injury. She said she loves the trees of the area, including this tree, but safety must come first.
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When the respondents would not do anything about the tree, she engaged, with their agreement, a contractor to prune the tree and paid for most of the works. She does not expect her insurer to deal with the cost of damage as it is foreseeable. She said the tree must be removed to prevent damage.
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Mr Adams submitted that there is no evidence that the tree has caused any damage. The applicants’ photos show some damaged tiles and capping but nothing to demonstrate its cause. He said the Court cannot be satisfied that the tree has caused damage.
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Mr Adams pointed out that the photo provided by Mrs Karabolovski presenting damage relating to the builder’s receipt showed broken mortar under the capping. He could not see how a branch might cause that damage.
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Mr Adams submitted that the tree contributes to the landscape value of the respondents’ property, to public amenity and to the natural environment. The respondents value their tree highly. He said any damage caused by the tree is minor, no more than to be expected in such an environment.
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Mr Adams argued that the recent pruning, described by Mr Reed as excessive, has removed most branches that might be able to damage the applicants’ property.
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I accept Mr Adams’ submissions that the applicants have not demonstrated causation of the damage. Their photos show broken roof tiles, but not the cause. Nevertheless, in the absence of other possible causes for a broken tile I observed at the hearing and some holes in the gutter guard beneath the tree’s crown, I am satisfied that such damage was most likely caused by branches falling from the tree. Therefore, the Court can make orders.
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Considering the minor damage that has occurred, branches that have fallen and broken any tiles were likely to be small. Mrs Karabolovski was unable to tell me if fallen branches were dead or alive. Since the tree has been pruned, the likelihood of further branch failures over the applicants’ property is low. Pruning removed a significant amount of the crown, indicated by the presence of epicormic growth now on some branches. There is now little overhang of the Karabolovskis’ property. The tree needs no further pruning at present.
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Although the receipt for roof repairs includes a hand-written not referring to damage caused by fallen branches, the Karabolovskis did not demonstrate to the satisfaction of the Court that the damage was caused by the tree. No compensation will be ordered.
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The tree is part of the local ecosystem. It provides shade and cooling, habitat, and contributes to public amenity. Balancing the social and environmental benefits of the tree with the likelihood and severity of any damage it might cause, I find that it would be excessive to make orders for ongoing pruning. Therefore the application is dismissed. Should circumstances change, the Karabolovskis could make a new application to the Court.
Orders
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As a result of the above, the orders of the Court are:
The application is dismissed.
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D Galwey
Acting Commissioner of the Court
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Decision last updated: 17 September 2019
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