Taseska v Kelly and Kober

[2010] NSWLEC 1009

Land and Environment Court

of New South Wales

CITATION:

Taseska v Kelly and Kober [2010] NSWLEC 1009

PARTIES:

APPLICANT
Blagorodna Taseska

RESPONDENTS
Jane Kelly
Ralph Kober

FILE NUMBER(S):

20776 of 2009

CORAM:

Fakes C

KEY ISSUES:

TREES (NEIGHBOURS) :- Damage to property
Injury to persons

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

CASES CITED:

Yang v Scerri [2007] NSWLEC 592

DATES OF HEARING:

15/01/2010

 
DATE OF JUDGMENT: 

15 January 2010

EX TEMPORE JUDGMENT DATE:

15 January 2010

LEGAL REPRESENTATIVES:

APPLICANT
Lenka Lozanoski (Agent)
Blagorodna Taseka (Litigant in person)

RESPONDENTS
Jane Kelly (Litigant in person)
Ralph Kober (Not in attendance)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C

15 January 2010

20776 of 2009 Taseska v Kelly and Kober

JUDGMENT

1 COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by Mrs Taseska of 3/ 9-11 Greenacre Road South Hurstville against the owners of a tree growing on 10 Rickard Road, South Hurstville. The owners of that property are Ms Kelly and Mr Kober. Mrs Taseska’s daughter, Ms Lozanoski, represented her mother. Mr Kober did not attend the hearing but Ms Kelly represented them both. Mr Dalgleish, Tree Management Officer from Kogarah Council was in attendance at the on-site hearing.

2 The applicant is seeking the removal of the tree as she contends that falling branches have caused damage to her property and could continue to do so. She also contends that the tree poses a risk of injury to people.

3 The tree is an over-mature Eucalypt some 14 m tall. The tree straddles the rear boundary of both properties. A metal dividing fence has been installed in two sections with the tree in between. However, the sections of the fence on either side of the tree are slightly offset, making it somewhat difficult to determine the actual alignment of the fence and whether it follows the boundary.

4 Although the tree is on the boundary and the fence line does not make it entirely clear whether the tree is principally on the respondents’ land, Ms Kelly did not contest that position (although she did dispute the position of the dividing fence). I am satisfied that it is likely more than 50% of the base of the tree is on the respondents’ property. I have reached this conclusion having had regard to the fact that the respondents did not contest the proposition (thus satisfying the jurisdictional test set by s 4(3) of the Act). Therefore the Court’s jurisdiction is enlivened and I can proceed to consider the matter under the Act.

5 The tree was inspected from both properties. The base of the tree is now located about 3-4 m from the rear of the applicant’s town house. According to Mr Dalgleish, these units were built in 2002. Mrs Taseska has lived in her unit for one year, the respondents have lived in their property for 8 years. The tree is at the far end of the respondents’ property and shrubs screen its base.

6 Visible from the applicant’s side is a large wound some 3 m high covering about one third of the trunk. The heartwood is exposed and there is evidence of extensive past borer activity. The northern section of the canopy is dead or nearly so. One substantial dead and rapidly drying limb overhangs the respondents’ property. In total about 75% of the tree is dead or in irreversible decline.

7 Under s 10(2), the Court must not make an order unless it is satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property or is a risk of injury to persons. In Yang v Scerri [2007] NSWLEC 592, a rule of thumb, which I consider is also appropriate here, puts the near future as being a period of 12 months from the date of the determination.

8 In this matter, the undisputed evidence is that falling branches have caused damage to the applicant’s property and could continue to do so. Large sections of dead wood exist in the canopy, the likelihood of failure is high and therefore there is a reasonable risk of injury. It should be noted that the risk of injury test set by the Act applies to any person on any property potentially affected by failure of any part of the tree and is not confined to risks to those on the applicant’s property.

9 It is likely that significant root damage occurred during the construction of the townhouses/ villas at 9-11 Greenacre Road. There are no practical options to enable the retention of the tree despite Ms Kelly’s concerns about the loss of tree cover in the general area. The tree is in irreversible decline and the tree requires removal.

10 At the on-site hearing, it was agreed by the parties that they share the responsibility and costs for the removal of the tree.

11 Therefore the Orders of the Court are:

1. The application to remove the tree is upheld.
2. The applicant is to obtain 3 quotes for the removal of the tree to the top of the fence. The respondents are to agree to the choice of contractor.

3. Each party is to pay 50% of the cost of the selected quote.

4. The work must be carried out by an arborist with a minimum AQF level 3 qualification in arboriculture with appropriate current insurances. All work must be carried out in accordance with the WorkCover Code of Practice for the Amenity Tree Industry.
5. The parties are to negotiate the timing of the works and each party must provide reasonable access for the works to be carried out in a safe and efficient manner.
6. The tree is to be removed within 30 days of the date of these orders.
7. The contractor is to provide separate invoices to each of the parties for 50% of the total cost.

_____________________________

Commissioner of the Court