Wong v Yu

[2017] NSWLEC 1518

Land and Environment Court

New South Wales

Medium Neutral Citation:	Wong v Yu [2017] NSWLEC 1518
Hearing dates:	18 September 2017
Date of orders:	18 September 2017
Decision date:	18 September 2017
Jurisdiction:	Class 2
Before:	Fakes AC
Decision:	See [12]
Catchwords:	TREES [NEIGHBOURS] Damage to property, potential injury, compensation’ pruning ordered
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:	Mr Chun Cheung Wong (Applicant) Mr Jiang Yu (Respondent)
Representation:	Applicant: Mr C Wong (Litigant in person) Respondent: No attendance
File Number(s):	2017/157525

JUDGMENT

1. COMMISSIONER: The applicant has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of a Eucalyptus saligna (Sydney Blue Gum) growing on the respondent’s adjoining Pymble property. In the event that removal is opposed, the applicant requests the removal of the large branch that overhangs his dwelling. The applicant is also claiming compensation for the costs of repairing his roof and damage to a toilet and sewer pipes; the damage to his property being allegedly caused by the respondent’s tree.

2. Apart from concerns about past and possible future damage to his property, the applicant is concerned that branches falling from the tree may injure anyone on his property.

3. Tree dispute matters are almost always set down for an on-site hearing with the hearing commencing with an inspection of the tree/ trees from the respondent’s property. In the company of the applicant, I knocked three times on the respondent’s front door and rang the doorbell three times. There was no response. I am satisfied on the basis of material on the court’s file that the respondent has been appropriately served with all necessary documents and was aware of the date and time of the hearing. I proceeded to hear the matter in his absence.

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. Given the respondent’s non-attendance, the tree could not be inspected from his property. However, I am satisfied from what could be seen from the applicant’s property that the tree the subject of the application is wholly on the respondent’s land and is a tree to which the Trees Act applies.

6. Neither party engaged an arborist to provide independent expert opinion. The following comments are based on the arboricultural expertise I bring to the court. The canopy and branch attachments were viewed from ground level and were restricted to what could be seen from the applicant’s property; I used binoculars to view the upper canopy and branch attachments.

7. The tree is a mature Sydney Blue Gum, a locally indigenous species. The tree appeared healthy and apart from a normal quantity of dead wood, I saw no obvious structural defects that would lead me to conclude that the tree, or any significant living part of it, is likely to fail onto the applicant’s property in the near or foreseeable future. I saw nothing that would warrant an order for tree removal. However I am satisfied that dead wood should be removed from the tree as its failure is predictable and sufficiently large pieces overhang the applicant’s dwelling and areas of private open space. It is reasonably foreseeable that the failure of these branches could cause further damage and or injury. As the canopy overhangs other properties, and dead wood is present in those parts, there is a risk of injury to persons on those properties.

8. In regards to the compensation claims, I am satisfied that the branch that fell onto the applicant’s roof in April 2017, and which necessitated emergency repairs to it, came from the respondent’s tree as it is the only tree in the vicinity which overhangs the applicant’s roof. I am also satisfied that the applicant had advised the respondent of his concerns about the tree on a number of previous occasions. Orders will be made for the reimbursement of $517.00 for roof repairs.

9. The applicant contends that a root from the Blue Gum caused the cracking and lifting of a sewer junction beneath the bathroom as well as lifting of a toilet bowl. A plumber’s invoice dated 24 June 2016 notes the presence of a root.

10. There is no evidence to confirm that the root came from the respondent’s tree. I observed a number of large trees growing along the rear boundary of the adjoining property to the east of the applicant’s property. These trees are closer to the affected sewer. The satisfaction of the jurisdictional tests in s 10(2)(a) requires a clear nexus between the tree the subject of an application and the alleged damage. In the absence of any evidence which clearly identifies the origin of the root, no orders will be made for any reimbursement of plumbing costs.

11. As discussed in Hinde v Anderson & anor [2009] NSWLEC 1148, a fresh application can be made if the circumstances have changed since the Court determined the earlier application and there is fresh evidence. 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.

12. Therefore, on the basis of these findings, the Orders of the Court are:

1. The application to remove the tree is dismissed.

2. Within 30 days of the date of these orders, the respondent is to engage and pay for an arborist with a minimum qualification in Arboriculture of AQF level 3, to remove all dead wood with a diameter of 30mm or greater at its base from all parts of the canopy of the Sydney Blue Gum at the rear of the respondent’s property.

3. The work in (2) is to be carried out in accordance with the relevant provisions of AS4373:2007: Pruning of Amenity Trees and with the WorkCover NSW Code of Practice for the Amenity Tree Industry or its equivalent.

4. Should it be required, the applicant and his tenants are to provide all reasonable access on reasonable notice for the purpose of quoting and the safe and efficient carrying out of the works in Order (2).

5. The works in (2) are to be carried out every two years within two weeks either side of the anniversary of the first pruning in 2017. Orders (3) and (4) apply.

6. Within 21 days of the date of these orders, the respondent is to reimburse the applicant the sum of $517.00.

______________________

Judy Fakes

Acting Commissioner of the Court

Decision last updated: 20 September 2017