Muscat v Kiang

[2017] NSWLEC 1557

Land and Environment Court

New South Wales

Medium Neutral Citation:	Muscat v Kiang [2017] NSWLEC 1557
Hearing dates:	5 October 2017
Date of orders:	05 October 2017
Decision date:	05 October 2017
Jurisdiction:	Class 2
Before:	Fakes AC
Decision:	Tree removal ordered see[7]
Catchwords:	TREES [NEIGHBOURS] : Potential damage and injury; dead tree
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Category:	Principal judgment
Parties:	Ms C Muscat (Applicant) Mr M Kiang (Respondent)
Representation:	Applicant: In person Respondent: In person
File Number(s):	279855 of 2017

JUDGMENT

1. COMMISSIONER:   In 2009 lightning struck a mature Quercus robur (English Oak) growing at the rear of the respondent’s Marrickville property. As a result of that lightning strike, the tree has continued to decline and is now in the process of decaying at its base. Despite the applicant’s repeated requests to the respondent to take some action, and consent for its removal being granted by Marrickville (now Inner West) Council, nothing has happened.

2. The applicant has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the urgent removal of the tree on the basis that its continued decline poses a risk to her property and to anyone on her land.

3. Section 8(3) of the Trees Act enables the Court to vary the requirement for an applicant to provide at least 21 days’ notice of the lodging of an application under the Trees Act if it thinks it appropriate to do so in the circumstances. The photographs and other material in the application form demonstrated the advanced state of decline of the tree and warranted the expedition of the matter.

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. With the arboricultural expertise I bring to the Court, and with the benefit of the site inspection, I am satisfied that the tree is in advanced state of decline and poses a foreseeable risk of damage to the applicant’s property, in particular the studio adjacent to the tree, and of injury to anyone on all nearby properties, including the respondent’s property. As s 10(2) is met, the Court’s jurisdiction to make orders is engaged.

6. The only appropriate order in the circumstances is that the tree is to be removed at the respondent’s expense.

7. The Orders of the Court are:

1. 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 English Oak to ground level. The work is to be completed within 30 days of the date of these orders.

2. The work in (1) is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry or equivalent safety standard.

3. Should it be required, the applicant is to provide all reasonable access on reasonable notice for the purpose of quoting and or the safe and efficient carrying out of the works in (1).

______________________

Judy Fakes

Acting Commissioner of the Court

Decision last updated: 05 October 2017