Roebeck v Nandi
[2015] NSWLEC 1289
•28 July 2015
Land and Environment Court
New South Wales
Medium Neutral Citation: Roebeck & anor v Nandi [2015] NSWLEC 1289 Hearing dates: 28 July 2015 Date of orders: 28 July 2015 Decision date: 28 July 2015 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is upheld. See orders at paragraph 5.
Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage; fence; tree removal; consent orders. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Category: Principal judgment Parties: Clautina Roebeck (First Applicant)
Eddie Roebeck (Second Applicant)
Marlene Nandi (Respondent)Representation: Mr and Mrs Roebeck, litigants in person (Applicants)
Mr Nandi, son and agent (Respondent)
File Number(s): 20339 of 2015
Judgment
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
Background
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Two Chinese Tallow trees grow between two dwellings in Enfield, adjacent to the common boundary. The trees are on the property owned by Mrs Nandi (‘the respondent’). Her neighbours, the Roebecks (‘the applicants’), have applied to the Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’) seeking orders for removal of the trees and repairs to the colourbond fence. Prior to the hearing the parties drafted consent orders, but before making the orders I must be satisfied that the Court's jurisdiction is enlivened and that the orders are appropriate.
Jurisdiction
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The trees are in a narrow garden bed along the boundary. Tree T1 is the larger tree, but T2 is closer to the boundary. The trees are less than 10 metres tall. The colourbond fence is slightly displaced adjacent to T1 and more severely displaced alongside T2. The applicants’ arborist suggests that T2 is most likely a sucker from the roots of T1. I accept this is likely. The fence displacement equates to damage. The proximity of the displacement to the trees’ locations satisfies me that displacement is due to tree growth. Although perhaps minor at present next to T1, I accept that further damage is likely in the near future. Therefore the Court's jurisdiction is enlivened with regard to both trees.
Are the orders appropriate?
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The benefits of the trees are minimal, and they are growing in a restricted space where they are likely to cause further problems. Their disadvantages outweigh their benefits. I accept that removal is an appropriate strategy to prevent further damage. The parties agree that they will share the cost of repairing or replacing the damaged fence panels.
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Mrs Nandi's son says that his mother is selling her property, with settlement due on 17 August. The parties consented to a further order that will allow for the new owner to be heard should the works ordered not be completed by 17 August.
Orders
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By consent, the orders of the Court are:
The application for the removal of the two trees identified as T1 and T2 (‘Trees’) is upheld.
By 5 August 2015, the Respondent is to engage and pay for an AQF level 3 Arborist, with proof of current adequate and appropriate insurance cover, to remove the Trees, any roots and their stumps, which are to be ground to a depth of at least 300mm. The Trees, any roots and their stumps are to be removed by 5 August 2015.
The work is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.
The Applicants are to provide all reasonable access for the work to be carried out in a safe and efficient manner.
The Respondent is to give the Applicants at least two working days' notice of the commencement of the work.
The Applicants and the Respondent are to each pay 50% of the costs of any repair to the dividing fence or, if required, the replacement of the damaged panels of the dividing fence. If the damaged panels of the dividing fence are to be replaced, the Applicants and the Respondent agree that it shall be of the same or similar material as the current fencing.
The Applicants are to arrange for two quotes for repair or replacement of the damaged panels of the dividing fence in accordance with order (6) above, and to provide a copy of the quotes to the Respondent by 10 August 2015.
The Applicants are to engage and pay for the contractor with the cheapest quote to carry out the quoted works by 17 August 2015.
The Respondent will pay the Applicants 50% of the works within two weeks of receiving a receipted paid invoice. If no such invoice is received by the Respondent within 60 days of the date of the orders, this order lapses.
If the fencing works described in orders (6) to (8) are not completed by 17 August, liberty to relist on 2 days’ notice.
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D Galwey
Acting Commissioner of the Court
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Decision last updated: 31 July 2015
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