Powell v Pikulyk
[2019] NSWLEC 1562
•08 November 2019
Land and Environment Court
New South Wales
Medium Neutral Citation: Powell v Pikulyk [2019] NSWLEC 1562 Hearing dates: 18 October 2019 Date of orders: 08 November 2019 Decision date: 08 November 2019 Jurisdiction: Class 2 Before: Galwey AC Decision: See orders at [32]
Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – damage – damage to vehicle – compensation sought – orders for pruning Legislation Cited: Trees (Disputes Between Neighbours Act) 2006 (NSW) Texts Cited: AS4373:2007 ‘Pruning of amenity trees’
Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’Category: Principal judgment Parties: Christopher Mark Powell (First Applicant)
Katherine Ann Rhys Powell (Second Applicant)
Raymond Pikulyk (First Respondent)
Patricia Pikulyk (Second Respondent)Representation: C Powell, litigant in person (First Applicant)
K Powell, litigant in person (Second Applicant)
R Pikulyk, litigant in person (First Respondent)
P Pikulyk, litigant in person (Second Respondent)
File Number(s): 2019/128844 Publication restriction: No
Judgment
Background to the application
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A large mature gum tree grows on the North Rocks property belonging to Patricia and Raymond Pikulyk (‘the respondents’). It is close to the common boundary they share with their neighbours, Katherine and Christopher Powell (‘the applicants’).
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Some time ago, the Powells asked the Pikulyks to remove a large dead branch above their property, concerned that it would fall and cause damage. The Powells said a live branch fell onto their carport, breaking tiles which in turn fell on, and damaged, their parked car.
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After some discussions, the Pikulyks agreed to prune the tree. Unable to agree on access arrangements for the works, the pruning was postponed. The Powells applied to the Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’), seeking orders for the tree to be pruned or removed, and for compensation for damage to their car.
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The Pikulyks obtained an arborist report from Scott Gatenby of Apex Tree & Garden Experts. They engaged an arborist to prune the tree in the week prior to the hearing, removing the large dead branch that concerned the Powells.
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Although the Powells would prefer all branches above their property removed, they clarified at the onsite hearing that they were generally satisfied with the state of the tree. They wished to press their compensation claim.
Framework of this decision
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Before the Court can make any orders, s 10(1) of the Trees Act requires that I be satisfied that the applicants have made reasonable effort to reach agreement with the respondents.
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Then, s 10(2) of the Trees Act requires that I be satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicants’ property, or is likely to cause injury to any person. If satisfied of this test, I must consider a range of relevant matters set out at s 12 before making appropriate orders to remedy, restrain or prevent the damage, or to prevent injury.
Powells’ submissions
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The Powells presented their claim as a straightforward series of events leading to their compensation claim. They say a branch fell onto their carport during a storm on the night of 27 January 2019 while they were away. Their house-sitter observed the branch, broken tiles and damage to the car (a Honda sedan) the next day. I allowed the tendering of a Statutory Declaration from the Powells’ house-sitter, Susan Law. She described finding the branch and broken tiles on 28 January and observed damage to the Powells’ car.
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In February, the Powells paid $624 to replace their windscreen. In July, they obtained a quote of $3,529.52 from Bailey Smash Repairs for repairs to their car. The quote included replacement of the windscreen again, as it needed to be removed to repair other parts.
Pikulyks’ submissions
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The Pikulyks disputed the claims made by the Powells. In particular, they said a branch fell months earlier, not in January. They provided photographs to the Court showing failure of a different branch in December 2018.
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The Pikulyks approached Bailey Smash Repairs and obtained photos of the damage, which they had not observed. The photos were date-stamped “2/7/2018”, so the Pikulyks argued that damage to the Powells’ vehicle predated any branch failure. They suggested that the Powells were merely attempting to shift the cost of repairing existing vehicle damage on to them.
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The Pikulyks referred to photos showing a live branch on the Powells’ carport roof above their car, broken tiles viewed from beneath, a broken tile on the Powells’ windscreen and the broken windscreen. They argued that a tile on the car in one of the Powells’ photos does not match the hole in the roof in another photo.
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The Pikulyks asserted that the Powells’ carport is an illegal structure built by previous owners of the property, although the Powells are now responsible for its alleged non-compliance. Its construction damaged their tree, causing dieback of its crown. On page 8 of his report, arborist Scott Gatenby wrote: “This type of construction adjacent to the trunk of the tree will have almost certainly caused the formation of the deadwood over #45.”
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The Pikulyks provided three pages of “Respondents Alternate Orders” that included arguments and reasons, but in summary were:
Retaining the tree.
Applicants to relocate their carport.
Applicants to pay the respondents $3,520, the cost incurred for pruning deadwood from the tree that the respondents say was a result of the applicants’ carport construction.
Applicants to pay the respondents $1,188, the cost of the respondents’ arborist report.
Findings
Reasonable effort
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The applicants wrote to the respondents requesting mediation, which was refused by the respondents. I am satisfied that the applicants made a reasonable effort to reach some agreement.
Damage and injury
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In describing the course of events that led to damage to their property, the applicants came across as honest and believable. I take their submissions at face value.
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Despite the respondents’ contentions to the contrary, the applicants’ submissions and evidence were consistent and plausible. The respondents’ photos of another branch failure, taken on 15 December 2018, related to another tree not in the vicinity of the Blackbutt, and had nothing to do with the tree or damage in this matter.
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The arborist report described the tree as healthy, with normal signs of vigour and no major structural defects. He suggested that deadwood forming above the applicants’ property might be a result of impacts within the root zone from the carport construction beneath the tree. That is possible, but the branch that fell and damaged the Powells’ carport was a live branch.
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I find that a live branch from the tree fell and damaged the Powells’ carport roof, breaking several tiles. I can therefore make orders, including orders to prune or remove the tree to prevent further damage, and orders for compensation.
Compensation
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The Powells do not seek compensation for damage to their carport roof, only for damage to their car.
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The car repair quote from Bailey Smash Repairs is dated 3/7/2019. The photos that the Pikulyks obtained from Bailey Smash Repairs were date-stamped “2/7/2018”. If the quote was provided on 3 July 2019, the assessment was most likely made shortly beforehand. It seems more likely that the camera date (year) was set incorrectly, rather than anything more sinister on the part of the Powells.
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The quote includes extensive works, some of which could not be related to the incident: for instance, “inner boot trims” and “rear bumper”.
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There is no evidence that failure of the live branch was foreseeable. Even if the Pikulyks had removed deadwood from the tree, this branch may still have fallen.
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For these reasons, I will not make orders for compensation.
Preventing further damage or injury
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The large dead limb was removed shortly before the hearing, so can longer cause damage. I assessed the tree at the onsite hearing. A long branch above the applicants’ property is attached to the large stub left from removal of the dead branch. Its attachment is poor and will weaken as decay affects the branch stub. This branch is likely to fail in the near future, in which case it would damage the applicants’ carport. At the least, this live branch should be removed. Another live limb attached to the same stub is smaller and not above the applicants’ dwelling, so is less hazardous.
Matters at s 12
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I have considered the matters at s 12 of the Trees Act.
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The tree is close to the common boundary and overhangs the Powells’ property.
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Construction of the Powells’ carport may have affected the tree’s health, but there is insufficient evidence to demonstrate: firstly, that the pruning required to remove deadwood was a direct result of the impacts of construction works on the tree; and secondly, that it contributed in any way to the failure of the live limb that caused damage. Therefore the possible non-compliance of the carport’s construction, and any impacts it had on the tree, are not factors that will influence the orders.
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The tree contributes to public amenity, biodiversity and local environmental values. It provides habitat. In his report, arborist Scott Gatenby suggested it is likely to be remnant, which I accept.
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Pruning to remove the live branch above the applicants’ property should not adversely affect the remainder of the tree. Removing the other live limb attached to the larger branch stub would require the removal of the entire stem, leaving a much larger wound on the remaining stem, which is undesirable.
Conclusions
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No orders will be made for compensation. To prevent further damage, I will make orders for pruning the poorly attached limb over the applicants’ property.
Orders
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As a result of the foregoing, the Court orders:
Within 60 days of the date of these orders, the respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances to prune the Blackbutt near the north-eastern corner of their property to remove the live branch above the neighbouring property, pruning back to its branch collar (see photos below).
All pruning works ordered above must be carried out in accordance with AS4373:2007 Pruning of amenity trees and the 2016 Safe Work Australia Guide to managing risks of tree trimming and removal work.
The respondents are to give the applicants 7 days’ notice of all works ordered above.
The applicants are to allow all access required to complete the works ordered above during reasonable hours of the day.
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D Galwey
Acting Commissioner of the Court
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Decision last updated: 18 November 2019
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