Marshall v Mar

[2017] NSWLEC 1197

Land and Environment Court

New South Wales

Medium Neutral Citation:	Marshall v Mar [2017] NSWLEC 1197
Hearing dates:	20 April 2017
Date of orders:	20 April 2017
Decision date:	20 April 2017
Jurisdiction:	Class 2
Before:	Fakes AC
Decision:	Tree removal ordered
Catchwords:	TREES [NEIGHBOURS] Potential injury; dead tree
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Category:	Principal judgment
Parties:	Stephen Marshall (Applicant) Derek Mar (Respondent)
Representation:	Applicant: Stephen Marshall (Litigant in person) Respondent: Derek Mar (Litigant in person)
File Number(s):	47186 of 2017

JUDGMENT

1. COMMISSIONER: The applicant has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of a dead tree located at the rear of the respondent’s Illawong property. The orders are sought on the potential risk of injury arising from branches falling from the tree onto the applicant’s property.

2. The respondent does not contest the removal of the tree and has sought and obtained permission from Sutherland Shire Council for its removal.

3. While the parties share a limited boundary, I am satisfied that the tree is a tree to which the Trees Act applies being situated on adjoining land.

4. 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.

5. Damage to property is not pressed.

6. The tree in question is a large dead Eucalypt of unknown species. It is an advanced state of decline. It is inevitable that sections of it will fail as the wood deteriorates.

7. I am satisfied that s 10(2)(b) is met and the Court’s jurisdiction to make orders is engaged.

8. The only way to abate the risk is to remove the tree. Leaving a stump of up to 3m will be sufficient to make it safe; however, there is nothing to prevent the respondent from removing the tree to ground level.

9. The Orders of the Court are:

1. Within 30 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 level 3, and with appropriate insurance cover, to remove the tree to a height of 3m or less.

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 applicant is to provide all necessary access on reasonable notice for the purpose of quoting and for the safe and efficient carrying out of the works in (1).

_______________________

Judy Fakes

Acting Commissioner of the Court