Mourani v Dunne

[2010] NSWLEC 1066

Land and Environment Court

of New South Wales

CITATION:

Mourani v Dunne [2010] NSWLEC 1066

PARTIES:

APPLICANT
Joseph Mourani

RESPONDENTS
R. Dunne
E. Dunne
D. Dunne

FILE NUMBER(S):

21026 of 2009

CORAM:

Fakes C

KEY ISSUES:

TREES (NEIGHBOURS) :- Damage to property
Compensation
Injury to persons
Orders for pruning

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

23/03/10

EX TEMPORE JUDGMENT DATE:

23 March 2010

LEGAL REPRESENTATIVES:

APPLICANT
J. Mourani (litigant in person)

RESPONDENT
R. Dunne (litigant in person)
D. Dunne (litigant in person)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C

23 March 2010

21026 of 2009 Mourani v Dunne

JUDGMENT

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

1 COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 made by Mr Mourani of 28 Midson Road Eastwood against the owners of a tree growing at the rear of 26 Midson Road. That property is owned by Mr R. Dunne, Ms E. Dunne and Ms D Dunne.

2 The applicant is seeking the pruning of branches back to the fence line as he contends that the tree poses a risk of injury to persons and that it has caused damage to his property. The applicant is also seeking compensation of a sum of $528 for the supply and replacement of roof tiles, said to have been broken by branches falling from the tree.

3 The tree is a mature and healthy Eucalyptus saligna (Sydney Blue Gum). Its size and location suggest that this is a remnant of the original vegetation. There is about 5% dead wood in the tree, plus some hanging and detached dead branches caught in the canopy. Approximately 15% of the canopy overhangs less than 10% of the applicant’s back yard.

4 The damage said to have been caused by the tree, is damage to roof tiles from falling dead wood. A box of broken tiles was seen on site and in photographs tendered as part of the applicant’s evidence. Mr Mourani was given the opportunity to show me the damaged roof however it appears as though tiles have been replaced, and, as there was nothing to be seen, the offer was not taken up. A photograph in the applicant’s evidence shows a section of tiled roof and the caption reads ‘breakage of tiles due to impact’. However, the photograph does not clearly show any damage nor are there any branches on the roof. That is, there is nothing in evidence to link the alleged damage to the tree.

5 When questioned as to when the applicants were notified of the damage to the roof, it appears that it was in late November/ early December 2009 when the applicant sought an inspection of the tree from Parramatta City Council’s Tree Management Officer. The respondents were not shown the evidence and therefore had no opportunity to take action to remedy the problem if, in fact, the tree had caused the damage.

6 For the reasons outlined above, in particular the inability of the applicant to prove the connection between the tree and the damaged tiles, the application for compensation is dismissed.

7 Under s 10(2), the Court must not make an order unless it is satisfied that the tree concerned has caused, is causing or is likely in the near future to cause damage to the applicant’s property, or is likely to cause injury to any person.

8 The Court must also consider a number of matters under s 12. The relevant clauses in this case are:

(a) The tree is wholly located in the respondents’ property.
(d) The tree will contribute to the local ecosystem and to biodiversity. The tree is likely to be a remnant of the original forest.
(e) The tree contributes to the scenic value of the land on which it is growing and contributes to the landscape character of the locality.
(f) It can be seen from Midson Road, a busy local road, and therefore has value to public amenity.
(h)&(i) Actions taken. The applicant sought permission from Parramatta City Council to prune the respondents’ tree (see below).

9 In a series of documents (exhibit AA) filed by the council in accordance with the Court’s directions, there is a letter to Ms E Dunne dated 14 September 2004 advising her of council’s approval for pruning works. The council also tendered the ‘Determination of Development Application for Tree Works TA/613/04. The specific approval was for:

Tree 1: Eucalyptus spp – selective pruning of 5x lowest branches no greater than 80mm in diameter overhanging property No 28. Remove hanging branches in tree and broken branch stubbs (sic), deadwood. NB: Do not touch upper canopy.

10 Conditions of consent included the appropriate disposal of waste, restrictions as to the use of chainsaws and other machinery, and the works to be carried out in accordance with the Australian Standard by a qualified arborist. The determination also included information about non-compliance and the right of appeal. The consent was for a period of five years.

11 Another letter filed by the council indicates that Mr Mourani exercised his right to appeal and he sought a review of the determination to increase the number and size of branches to be pruned.

12 The applicant stated that the permitted pruning was not carried out. The respondents state that they have not had the tree pruned. It was clear at the on-site hearing that some inexpert pruning had been carried out in proximity to the dividing fence. It was asserted by the respondents that this had been done on behalf of the applicant, but the applicant denied this.

13 Returning to s 10(2), whilst there has been no reported injury and the damage to the roof is unsubstantiated, the size of the dead wood, both attached and detached, is of a size that could cause injury to any person. The area beneath the tree on the respondents’ property is infrequently used and thus the likelihood of injury on that side is low. However, there is a higher likelihood on the applicant’s side.

14 Therefore, as one of the tests under s 10(2) is satisfied, the jurisdiction is enlivened and the Court can make an Order under s 9.

15 The orders of the Court are:

1. The application to prune the tree is upheld in part.
2. The respondents are to engage and pay for an AQF level 3 arborist to remove all dead wood down to a diameter of 30mm from the portion of the canopy that overhangs the applicant’s property to a distance of at least 3m within the respondents’ property (measured from the dividing fence). All detached branches are to be removed from the entire tree.
3. This work is to be carried out in accordance with AS4373:2007 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry.
4. The applicant is to provide all reasonable access for this work to be undertaken in a safe and efficient manner.
5. The applicant is to be given at least 3 working days notice of the works.
6. This work is to be completed within 40 days of the date of these orders.
7. The removal of dead wood is to be carried every two years within 14 days either side of the anniversary of the first pruning. Orders 2,3,4,and 5 above apply to all subsequent work.

__________________________________