Trinh v Hui

[2016] NSWLEC 1046

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Trinh v Hui & anor [2016] NSWLEC 1046
Hearing dates:	12 February 2016
Date of orders:	12 February 2016
Decision date:	12 February 2016
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application granted in part; tree removal ordered
Catchwords:	TREES [NEIGHBOURS] Damage and injury
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Hinde v Anderson & anor [2009] NSWLEC 1148 McCallum v Riodan & anor [2011] NSWLEC 1009 Zangari v Miller (No 2) [2010] NSWLEC 1093
Category:	Principal judgment
Parties:	Ms S Trinh (Applicant) Mr J Hui and Ms J Chung (Respondents)
Representation:	Applicant: Mr T Edwards (Agent) Respondents: Mr J Hui (Litigant in person)
File Number(s):	20041 of 2016

Judgment

1. COMMISSIONER: In early January 2016, after a period of very heavy rainfall, several large branches fell from a Liquidambar growing at the rear of the respondents’ property in Pymble. The majority of the branches fell onto the respondents’ property but one fell across the south-eastern corner of the applicant’s dwelling.

2. The applicant has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act).

3. The applicant seeks orders for the removal of the branch from her property, compensation for any damage which may have been caused to her dwelling, removal of all branches overhanging her property and proof of insurance of anyone engaged by the respondents to carry out the work. All actions are to be at the respondents’ expense.

4. The hearing was expedited in accordance with s 8(3) of the Act.

5. In applications under Part 2 of the Trees Act, 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.

6. The on-site hearing commenced on site with an inspection of the tree from the respondents’ property. As neither party engaged an arborist to provide any independent expert evidence, the following observations and findings are based on the arboricultural expertise I bring to the Court.

7. The tree is a large, mature and healthy specimen wholly located on the respondents’ property. A substantial section of the tree has failed. The failure of branches from the upper parts of the canopy has caused the fracturing and partial dislodgment of several very large branches in the lower portion of the canopy.

8. I am satisfied that the extent and nature of the structural damage to the tree that has occurred as a consequence of the storm/wet weather event could result in further failures which could cause injury to anyone on the respondents’ land, and potentially to anyone on the applicant’s land.

9. Therefore as s 10(2)(b) is met, the Court’s powers to make orders under s 9 of the Act are engaged.

10. Given the extent of the damage, orders will be made for the removal of the entire tree. This will include the removal of the branch that remains resting on the applicant’s roof.

11. Regarding the orders sought for compensation for damage that may have been caused to the applicant’s roof by the tree, the applicant was unable to say what, if any damage had been caused. At the hearing the applicant stated that she thought the guttering was slightly bowed, however, the extent of any deflection was not quantified and, in my opinion, was not discernible from the ground.

12. Had the applicant removed the branch at an earlier stage, any damage that may or may not have been caused would have been clear. This would then form the basis of the Court’s consideration as to what, if anything, required rectification, and further, who should pay for it.

13. Although the application includes photographs taken on 7 December 2014 of a branch from the Liquidambar that had fallen into the applicant’s back yard, there is no evidence that any damage was caused and there is no claim for any compensation for any rectification of any damage arising from that failure.

14. The Court cannot make orders for rectification/ compensation where there is no evidence of damage. Therefore, this element of the application is dismissed. Clearly, removing the tree will prevent any future damage.

15. As discussed in Hinde v Anderson & anor [2009] NSWLEC 1148, a fresh application can only be made if the circumstances have changed since the Court determined the earlier application and there is fresh evidence that could not have been adduced at the first hearing. The judgments in McCallum v Riodan & anor [2011] NSWLEC 1009 and Zangari v Miller (No 2) [2010] NSWLEC 1093 give some indication as to what the Court considers to be ‘changed circumstances’ and fresh evidence.

16. In conclusion, the Orders of the Court are:

1. Within seven days of the date of these orders, the respondents are to engage and pay for an arborist with a minimum AQF level 3 qualification in arboriculture, and with appropriate insurance cover, to remove the Liquidambar to ground level. The work is to include the removal of any parts of the tree from the applicant’s property.

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

3. The applicant is to provide all necessary access for the purpose of quoting and the safe and efficient carrying out of the works in order (1).

4. The application for compensation is refused.

__________________________

Judy Fakes

Commissioner of the Court

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Amendments

22 February 2016 - Paragraph [12] amended to correct the facts.

Decision last updated: 22 February 2016