Khan v Saleeby - [2009] NSWLEC 1048

Land and Environment Court

of New South Wales

CITATION: Khan v Saleeby [2009] NSWLEC 1048

PARTIES:
APPLICANT
Sultan Khan
RESPONDENT
Adrian Saleeby

FILE NUMBER(S): 21078 of 2008

CORAM: Thyer AC

KEY ISSUES: TREES (NEIGHBOURS) :- Removal of a tree by 30 April 2009.

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING: 29/01/2009

EX TEMPORE JUDGMENT DATE: 29 January 2009

LEGAL REPRESENTATIVES:
APPLICANT
Sultan Khan
RESPONDENT
Adrian Saleeby

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Thyer AC

29 January 2009

21078 of 2008

Sultan Khan v Adrian Saleeby

JUDGMENT

1 ACTING COMMISSIONER: A large Ironbark tree stands in the south-eastern corner of the backyard of 33 Adella Avenue, Blacktown. The tree is about 1 m from both the side and rear boundaries. Most of the tree is dead. The property is owned by Mr Saleeby.

2 Mr Khan is the owner of the adjoining property to the south. He has made an application under the Trees (Disputes Between Neighbours) Act 2006 to rectify and prevent property damage and to avoid risk of injury to people. He seeks orders for removal and disposal of the tree. He was accompanied at the hearing by his son Shaneel Khan.

3 When assessing an application under the Act, the Court must be satisfied that one or more of the four tests in s 10(2) (a) and (b) of the Act are met by each tree before making an order regarding that tree. These tests are:

4 Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of:

The tree

5 Mr Saleeby had the tree inspected by Mr Lawrie Smith who is an arborist, and provided his report dated 9 December 2008, at the hearing. The tree is described as follows:

It is an over-mature Eucalyptus crebra;
Height 20 m, crown spread 16 x 14 m;
There are two co-dominant stems (trunks) originating from the root crown;
The larger trunk is dead;
The smaller trunk (over Mr Saleeby’s property) is alive but has heavy end loading and is now exposed to increased wind loading, and there is minor cracking in the wood beneath the co-dominant junction of this branch;
A large canker wound on the larger trunk is spreading upwards from the root crown and the symptoms are consistent with Armillaria root decay;

The smaller, live trunk has a very high hazard potential and should be removed as a high priority;
The deadwood throughout the canopy of the larger trunk does not appear to be an immediate risk to people and property. However, the tree should be removed in the near future (within 6 months).

6 I observed the tree to be as described by Mr Smith, and I agree with his conclusions.

Other background

7 In 1994, Mr Khan constructed a large shed in his backyard, with Council approval. The shed is on a concrete slab that was laid at that time, with a floor area of about 50 sq m. The back wall of the shed is about 2 m from the trunk of the tree. The land slopes very gently upwards from the tree to the shed. Mr Khan says there was little or no excavation for the slab, but some filling to support the slab at the back of the shed.

8 I note that the building of the shed preceded a number of years of lower than average rainfall, and covering of that area of the root zone of the tree is likely to have put additional stress on the tree.

9 The parties agree that they first noticed dropping of leaves from the tree two to three years ago, about 12 years after the shed was built.

10 In Mr Khan’s application, he was concerned about dents in the roof of the shed caused by dead branches falling from the tree. He did not seek compensation for that minor damage. He advised at the hearing that the shed roof had been badly damaged by a hail storm in December 2008 after the application was made, and that the shed roof had been replaced due to the hail damage. He is now concerned that the new roof will be damaged by further falling branches.

11 Mr Khan is concerned that cracks in the concrete floor of the shed may have been caused by the tree. He is also concerned that stormwater pipes from the shed may be damaged and that items in the shed may be damaged by water if leaves block the guttering.

12 Mr Khan is concerned for the safety of people using his backyard, as small dead branches have fallen, and large dead branches overhang his yard. However, he says that if orders are made for removal of the tree within three months, he is willing to restrict access of visitors to his backyard for that time.

13 Mr Khan is satisfied on advice from Mr Saleeby that the tree does not have termites, and on that basis withdraws his request that the timber of the tree be disposed from the property. The parties agreed at the hearing that the timber from the tree should initially be stacked near the present location of the tree, and within a year it be relocated to further from Mr Khan’s property.

14 Mr Saleeby paid $165 for the arborists report, and has obtained some quotations for cutting the tree down, the cheapest of which was $1,300. That price does not include removal of the timber from Mr Saleeby’s property.

15 Mr Saleeby states that he would have difficulty paying for the tree removal if he had to pay it in total. He requests that Mr Khan pay half the costs.

16 Mr Khan has paid about $200 for costs of bringing his application. He is willing to make some contribution to the cost of cutting the tree down, but not as much as half of the cost.

Findings

17 I observed that the dead crown of the tree overhangs three backyards in addition to Mr Saleeby’s. From Mr Smith’s report and my own observations, I find that large dead branches are likely to fall into all those backyards, and the tree may collapse into any of those properties. On that basis I find that the tree is likely to cause injury, thus meeting the test in s 10(2)(b) of the Act, and I will order its removal.

18 I accept that falling dead branches have damaged the roof of Mr Khan’s shed, thus meeting the first test in s 10(2)(a) of the Act.

19 I do not have a comfortable level of satisfaction that the tree has damaged the concrete floor of Mr Khan’s shed. Based on Mr Khan’s description, I find that the cracks are likely to be normal surface cracks associated with curing of the slab.

20 Under the considerations in s 12 (j) of the Act, I accept Mr Saleeby’s claim that he will have difficulty paying for removal of the tree in the next few months. However, due to the dangerous condition of the tree, and on the basis that Mr Khan will restrict access to his backyard, I will order that the tree be removed within three months, rather than one month as I would usually order for a tree in this condition.

21 Under the considerations in s 12 (i) of the Act, I find that construction of the large shed in Mr Khan’s backyard has contributed to stress on the tree and is likely to be part of the reason for its decline. I recognise that the shed was approved by Council, but the shed could have been smaller, and I observed that Mr Khan has a spacious back yard and the shed could have been placed further from the tree. I also note that no work was carried out to lessen damage to the tree such as watering of surrounding areas to help the tree overcome the root loss, nor was there any investigation of the likely damage to the tree, which could have been predicted on the basis that there are other mature trees to the north of the tree, so the majority of its roots were likely to be growing into Mr Khan’s property. On that basis I find that Mr Khan should contribute to the cost of cutting the tree down.

22 At the hearing both parties requested that I also take into consideration for apportionment, the costs they have already had in relation to the tree. In Mr Saleeby’s case that is the $165 cost of the arborist’s report. In Mr Khan’s case it is about $200 in court and other costs.

23 I have apportioned Mr Khan’s contribution to be one quarter of the costs. That apportionment is on the basis that I find him to be responsible for half the cause of stress on the tree at the time of building his shed. But I find that his contribution should be further halved on the basis of other factors such as the length of time between the building of the shed and when the parties noticed the decline of the tree, and the long period of drought and possibly age related decline of the tree which were outside of Mr Khan’s making or control.

24 The total cost for cutting the tree down and for the arborist’s report, is $1,465. On the basis of one quarter contribution, Mr Khan would be required to pay $366.25. However, considering Mr Khan’s claim that he has already paid about $200, I have subtracted his prior payments and find that he should pay the rounded figure of $165 to Mr Saleeby after the tree is cut down. Mr Khan gave his consent for orders that he pay that amount.

25 As there will be Court orders for removal of the tree, it is not necessary to also obtain Council consent for removal of the tree.

Orders

26 The application is upheld, and the Court makes the following Orders that apply to 33 Adella Avenue, Blacktown:

___________________

Peter Thyer

Acting Commissioner of the Court

CITATION:	Khan v Saleeby [2009] NSWLEC 1048
PARTIES:	APPLICANT Sultan Khan RESPONDENT Adrian Saleeby
FILE NUMBER(S):	21078 of 2008
CORAM:	Thyer AC
KEY ISSUES:	TREES (NEIGHBOURS) :- Removal of a tree by 30 April 2009.
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
DATES OF HEARING:	29/01/2009
EX TEMPORE JUDGMENT DATE:	29 January 2009
LEGAL REPRESENTATIVES:	APPLICANT Sultan Khan RESPONDENT Adrian Saleeby