Prior v Michael; Pettitt v Michael

[2016] NSWLEC 1495

Land and Environment Court

New South Wales

Medium Neutral Citation:	Prior v Michael; Pettitt v Michael [2016] NSWLEC 1495
Hearing dates:	26 October 2016
Date of orders:	26 October 2016
Decision date:	26 October 2016
Jurisdiction:	Class 2
Before:	Fakes AC
Decision:	Application granted; tree removal ordered
Catchwords:	TREES [NEIGHBOURS] Damage to property; potential injury; dead tree
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Category:	Principal judgment
Parties:	Eric Prior (Applicant: 277395/16) Philip Pettitt (Applicant: 277408/16) George Michael (Respondent: both matters)
Representation:	Applicant: Eric Prior (Litigant in person; 277395/16) Applicant: Philip Pettitt (Litigant in person; 277408/16) Respondent: Mr R Michael (Agent; both matters)
File Number(s):	277395 of 2016277408 of 2016

Judgment

1. COMMISSIONER:   The applicants in these matters, Mr Prior and Mr Pettitt, own adjoining properties downslope and to the rear of the respondent’s property in Newport. For several years the applicants have attempted to negotiate the removal of a dead Pinus radiata located close to the common boundaries of the three properties; it is clear that this has been a cause of some frustration. Although the respondent recently arranged for some branches to be removed, the majority of the dead tree remains.

2. The applicants have separately applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of the dead tree on the basis that branches falling from it could cause damage to property on their land or could cause injury to anyone. In Mr Pettitt’s case, a claim is made for compensation of $789.00 for the replacement of an aviary irreparably damaged by a branch from the tree.

3. Following a preliminary assessment of the application forms, it was determined that given the advanced state of decline of the tree, the usual period of notice should be varied in accordance with s 8(3) of the Trees Act and the matter expedited.

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. As neither party engaged an arborist to provide independent expert evidence, the following comments are made on the basis of the arboricultural expertise I bring to the Court.

6. The tree is a mature specimen which appears to have been dead for several years; indicated by the loss of bark from many of the branches. There is evidence of branch failure including the presence of a large limb on top of Mr Pettitt’s aviary. A number of large branches overhang Mr Pettitt’s property, including a carport and main entrance to his dwelling, and extend across Mr Prior’s boundary.

7. I am satisfied that the tree has caused damage to Mr Pettitt’s property and could, in the near future, cause damage to both applicants’ property and foreseeably, could cause injury to anyone on their properties.

8. Therefore as the tests in s 10(2) are satisfied, the Court’s jurisdiction to make orders is engaged.

9. Given the advanced state of decline, the tree is to be removed. There is no need to remove the tree to ground level however; the majority of the trunk is to be removed to a safe height. As the respondent’s land is quite steep, access may be required from Mr Pettitt’s land.

10. During the on-site hearing Mr Pettitt agreed, on the basis that the tree would be removed, not to press for the replacement of the aviary.

11. As a consequence, 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 of AQF level 3 in Arboriculture, and with appropriate insurance cover, to remove the dead Pinus radiata at the rear of the respondent’s property to a height of no more than 2 m above ground.

2. The work 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 applicants are to provide all reasonable access on reasonable notice for the purpose of quoting and for the safe and efficient carrying out of the works in Order (1).

___________________________

Judy Fakes

Acting Commissioner of the Court

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