Markovina v Haylock

[2009] NSWLEC 1249

Land and Environment Court

of New South Wales

CITATION:

Markovina v Haylock [2009] NSWLEC 1249

PARTIES:

APPLICANT
Markovina, Dan & Anor

RESPONDENT
Haylock, John

FILE NUMBER(S):

20189 of 2009

CORAM:

Fakes AC

KEY ISSUES:

TREES (NEIGHBOURS) :- removal of tree; risk of injury.

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

16 July 2009

EX TEMPORE JUDGMENT DATE:

16 July 2009

LEGAL REPRESENTATIVES:

APPLICANT
Mr D Markovina (Litigant in Person)

RESPONDENT
N/A

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes AC


16 July 2009

20189 of 2009 Dan and Monica Markovina v John Haylock

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1 ACTING COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 made by Dan and Monica Markovina of 3 Ash Street Colo Vale against the owner of a tree located at 1 Ash Street. The owner of that property is John Haylock. Mr Haylock notified the Court that he would be unable to attend the on site hearing and would not object to the removal of the tree if that was to be ordered.

2 The applicants are seeking the removal of the tree as they contend that is it poses a risk of injury to themselves, their family and others.

3 The tree was identified by an un-named arboris/ horticulturist from Kambaleigh Nursery & Landscaping as a Eucalyptus obliqua (Messmate Stringbark). This person was engaged by the applicants. The tree is a late-mature remnant of the original vegetation. It is in poor to average health and has several serious structural defects. It is located at the front north-western corner of the respondent’s property between the driveway and the south-western corner of the applicant’s property. It consists of two remaining trunks; one large with a basal wound and another that appears as a separate tree but is highly likely to be connected to the other stem below ground level. The tree is approximately 22 m tall.

4 Approximately 12 months ago, a large co-dominant stem failed at the base of the tree and fell across the applicants’ front garden and onto the front verandah of their house. Photographic evidence of this was provided by the applicants. The failure was due to a combination of bark inclusion and decayed and degraded wood.

5 The base of the larger of the two remaining trunks clearly shows the wound. There is evidence of another failure of a lage section of stem higher in the canopy. A spiral crack was observed in the lower portion of the larger trunk; the wood behind this crack had disintegrated to powder.

6 The tree is subject to strong winds. Apart from potential injury there is also the risk of damage to the power pole and line that is located adjacent to the tree and to the water meter on the applicants’ property.

7 Under section 10(2) the Court cannot make an order unless it is satisfied that the tree has caused, is causing, or could, in the near future, cause damage to property or injury to persons. As three of these four tests are satisfied, the Court has the jurisdiction to make an order.

8 Whilst this tree provides some visual amenity and would make a contribution to the local ecosystem and to biodiversity, both considerations under section 12 of the Act, the tree is hazardous and poses a risk to the applicants and to the respondent’s tenant.

9 The orders of the Court are that the application is upheld. Both remaining trunks of the tree are to be removed to ground level within 30 days of the date of these orders. This is to be at the full cost of the respondent. The applicants are to provide any reasonable access that may be required for these works to be carried out in a safe manner as long as three working days notice of the works is given. Similar notice must be provided to the respondent’s tenant. The work is to be undertaken by an AQF level 3 arborist with all necessary insurances and in accordance with the WorkCover Code of Practice for the Amenity Tree Industry. The arborist must also abide by Wingecarribee Shire Council requirements relating to no burning of foliage on site and the possible need for a Traffic Management Plan if there are likely to be any impacts on public land or risks to public safety.

___________________

J Fakes
Acting Commissioner of the Court