Vieira v Kaleski

[2007] NSWLEC 640

Land and Environment Court

of New South Wales

CITATION:	Vieira v Kaleski [2007] NSWLEC 640
PARTIES:	APPLICANT Jose Vieira RESPONDENT Anne and Peter Kaleski
FILE NUMBER(S):	20531 of 2007
CORAM:	Tuor C - Fakes AC
KEY ISSUES:	Trees (Neighbours) - Neighbour Application :- Application seeking removal of coral trees and lopping of eucalyptus trees and compensation for damage.
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
DATES OF HEARING:	26 September 2007
EX TEMPORE JUDGMENT DATE:	26 September 2007
LEGAL REPRESENTATIVES:	APPLICANT Mr J Vieira RESPONDENT Mr A Halstead, solicitor

JUDGMENT:

- 3 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C and Fakes AC

26 September 2007

20531 of 2007 Jose Vieira v Anne and Peter Kaleski

JUDGMENT

1 This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) concerning a number of trees located on the property at 25 Lucinda Avenue, Wahroonga. The property is owned by Mr and Mrs Kaleski.

2 The trees are 5 coral trees (Erythrina x sykesii) and numerous eucalypts located along the western and southern boundaries of 25 Lucinda Avenue, Wahroonga.

3 The application is made by Mr J Vieira of 29 Lucinda Avenue, Wahroonga.

4 The applicant seeks orders from the Court that all the coral trees are to be removed and all overhanging branches of the eucalypt trees be pruned to the boundaries. The applicant also seeks compensation of $7,304.00 to remove and replace 2 camellias at the rear of the property, which he asserts were damaged by a fallen branch from the most northerly coral tree. He also seeks a further $3,414.00 for repairs to a car, which was allegedly damaged by a fallen dead branch from an overhanging eucalypt tree located on 25 Lucinda Avenue.

5 The applicant also seeks regular de-coning of a Bunya Pine located on the southeast corner of 25 Lucinda Avenue, which overhangs Lucinda Avenue. However, as this tree does not adjoin the applicant’s property, it is beyond the jurisdiction of the Act.

6 In the matter of the coral trees, the Court has agreed, in part, with the findings of the arborist for the respondent, Mr M Kokot. Specifically there is substantial root damage to the two most northerly coral trees (this being damage to major structural roots) and evidence of major limb failure. The root damage is likely to have been exacerbated by changes to the soil level on 29 Lucinda Avenue, however, there is no evidence of how or when this occurred. As these trees are adjacent to a play area there is a likely risk of injury to the occupants of 29 Lucinda Avenue in the foreseeable future. The Court therefore orders that these two trees should be removed within 60 days of the date of these Orders and that costs be met by the owners of the trees.

7 With regard to the remaining coral trees and the eucalypts, the Court has been persuaded by the arborist’s report that those trees and all trees along the southern and western boundaries of 25 Lucinda Avenue be inspected on an annual basis. The first inspection is to be made within 60 days of the date of these Orders, and is to include an aerial inspection carried out by an arborist having qualifications of at least Level 3 in Arboriculture.

8 At the time of the inspections, any dead wood within two meters of the boundary fence, being the southern and western boundary of 25 Lucinda Avenue, that are 30 mm in diameter are to be removed in accordance with AS4373-2007. Within 14 days of the inspections, the owners at 29 Lucinda Avenue are to be provided with a copy of the report of the arborist.

9 It is also noted that the owner of 25 Lucinda Avenue has agreed to undertake regular inspection of the Bunya Pine.

10 In the matter of the compensation, the Court has not been persuaded by the evidence that the damage to both the camellias and the car are as a direct result of the failure of the branches of trees on 25 Lucinda Avenue. Consequently that part of the application is dismissed.

11 The Court makes the following orders:

1. The two (2) most northerly coral trees (Erythrina x sykesii) along the western boundary of 25 Lucinda Avenue are to be cut down to ground level within 60 days of the date of these Orders, at the cost of the owner.

2. The other three (3) coral trees and the Eucalyptus trees along the western and southern boundaries of 25 Lucinda Avenue are to be inspected annually by an arborist having qualifications of at least AQF Level 3 in Aboriculture. The first inspection is to be within 60 days of the date of these Orders and shall include an aerial inspection to determine if there are any defective branches that are likely to fail within a 12 month period.

3. At the time of the inspections, any dead wood with a diameter of over 30mm and any identified structurally defective branches are to be removed to within two (2) metres of the boundary inside 25 Lucinda Avenue. The work is to be carried out by an arborist having qualifications of at least AQF Level 3 in Aboriculture and in accordance with AS.4373 - 2007. The inspections and any work required are to be at the cost of the owner.

4. The owner of 29 Lucinda Avenue is to be provided with a copy of the arborist’s report within 14 days of the inspection.

5. The claim for compensation is dismissed

The Court notes the undertaking of the owner of 25 Lucinda Avenue to undertake annual inspections of the Bunya Pine.

___________________ ___________________

Annelise Tuor Judy Fakes
Commissioner Acting Commissioner