Phillips v Kyong Holdings Pty Ltd

[2016] NSWLEC 1293

Land and Environment Court

New South Wales

Medium Neutral Citation:	Phillips v Kyong Holdings Pty Ltd [2016] NSWLEC 1293
Hearing dates:	18 July 2016
Date of orders:	18 July 2016
Decision date:	18 July 2016
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	See [12]
Catchwords:	TREES [NEIGHBOURS] Damage to property; apportionment of tree removal costs
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	Applicant: Mr Liam Phillips Respondent: Kyong Holdings Pty Ltd
Representation:	Applicant: Mr L Phillips (Litigant in person) Respondent: Ms L Bowd (Agent)
File Number(s):	152895 of 2016

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 tree growing on an adjoining property.

2. The applicant contends that the tree is causing damage to the retaining wall that forms the boundary between the parties’ properties and unless the tree is removed, further damage will ensue.

3. The tree the subject of the application is a healthy and mature Corymbia maculata (Spotted Gum) growing on the southern boundary of the respondent’s property and close to the retaining wall. The applicant’s property is to the south of and below the respondent’s 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. Injury is not pressed. In a guidance decision published in Yang v Scerri [2007] NSWLEC 592, as a rule of thumb, the ‘near future’ is deemed to be a period of 12 months from the date of the determination.

6. The applicant engaged an arborist to inspect the tree. The Spotted Gum is one of three trees planted in a garden bed which adjoins the applicant’s northern boundary. The base of the Spotted Gum is within about 250mm of the dividing fence which is built above the retaining wall. The two other trees are approximately 2m away.

7. The retaining wall is constructed of concrete blocks which appear to have concrete poured into the cavities within the blocks. The wall has been pushed out of alignment in the immediate vicinity of the base of the Spotted Gum. The remaining wall is vertically aligned. The deflected portion of the wall is less than 100mm from the applicant’s dwelling.

8. I am satisfied on the evidence that the tree has caused the damage to the wall, and as the tree continues to grow, further deflection will occur and which could lead to structural failure of that part of the block work onto the applicant’s house.

9. Therefore as s 10(2)(a) is satisfied, the Court’s powers to make orders under s 9 of the Trees Act are engaged. The making of orders requires consideration of relevant matters in s 12 of the Act. Relevant here:

• The tree has been planted very close to the common boundary.

• The tree is one of several which make a positive contribution to the scenic value and amenity of the respondent’s property and, because it forms part of the general tree canopy, to public amenity.

• The applicant purchased his property in late 2013. He was aware of some deflection of the wall at that time however, over the past few years the bowing has increased.

10. With the arboricultural expertise I bring to the Court, I am satisfied in the circumstances of this matter that the tree should be removed. The tree is healthy and can be expected to grow much larger. The proximity of the tree to the wall, and the wall to the applicant’s dwelling, would make rectification of the wall very difficult and probably expensive. In the circumstances it is reasonable to avoid further costly complications. While the tree makes a contribution to the immediate locality, the two nearby trees will remain to continue that contribution.

11. Given that the applicant essentially came to the nuisance, I consider it reasonable that he make some contribution to its removal.

12. Therefore, the Orders of the Court are:

1. The application to remove the tree is granted.

2. Within 60 days of the date of these orders the respondent is to obtain up to three quotes from an arborist with a minimum AQF level 3 qualification in Arboriculture, and with appropriate insurance cover, to remove the tree to ground level and treat the stump to prevent regrowth. Should the applicant wish to, he may obtain up to two quotes for that work. Within the 60 day time frame the parties are to exchange quotes and agree on the choice of contractor. Should there be no agreement the cheapest quote is to be selected.

3. The respondent is to engage and pay for the nominated contractor and the works in (2) are to be completed within 90 days of the date of these orders.

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

5. 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 (2).

6. The applicant is to reimburse the respondent 30% of the cost of the works in (2) within 21 days of the receipt of a tax invoice for the completed work.

________________________

Judy Fakes

Commissioner of the Court

**********