Joaquim v Adamson

[2009] NSWLEC 1312

Land and Environment Court (NSW)|2009-06-30

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Court

Land and Environment Court (NSW)

Decision date

2009-06-30

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Judgment (96 paragraphs)

[1]

Introduction 1 COMMISSIONERS: Mr and Mrs Joaquim live at 21 Turriell Bay Road, Lilli Pilli. Mr and Mrs Adamson live next door at 23 Turriell Bay Road. Mr and Mrs Adamson have a large number of trees on their property. Mr and Mrs Joaquim havemade an application pursuant to the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) seeking orders for removal of a number of these trees, two at the front of the Adamson property and six at the rear. 2 The most prominent of these trees is a Hills Fig tree located in close proximity to the dwelling on each of the Joaquim and Adamson properties. The Hills fig is dying, asymmetrically, with the portion closest to the Joaquim's property being dead or nearly so. The causes of the death of this tree are significant matters for consideration in these proceedings. The inspection and subsequent court hearing 3 In order to understand some of what follows, it is necessary to set out a little of the procedural history in this matter. When this application first came before the Court, at a preliminary hearing on 24 April 2009, the applicants were represented by their barrister, Mr Caffrey, and the respondents appeared in person. 4 During the course of the preliminary hearing, as is the practice of the Court in these matters, the appropriate directions from the set of standard directions in tree dispute matters were made (the set of standard directions in tree dispute matters is publicly available on the Court's Internet website) and copies were provided to the parties. 5 Particularly relevant to this decision, Standard Directions 5, 6 and 7 were made as this application included not merely an application for orders requiring interference with or removal of a number of trees on the respondents' property but also an application for the respondents to pay the applicants compensation for claimed past damage to the applicants' property. Accompanying the application was a timeline dated 26 February 2009 prepared by the applicants setting out the history of what they considered to be matters relevant in the proceedings. 6 These directions (5, 6 and 7) were in the following terms: 5. The applicant is to lodge with the Court and give a copy to the owner of the tree and to the council, by 4.30pm on 1/5, any further statements, reports, affidavits, photographs or any other documents upon which the applicant intends to rely;

[40]

SENIOR COMMISSIONER: Mr Caffrey direction 6 was not, from its terms, confined to written material. The applicant was to provide details and it then says "(including copies of correspondence)". Your clients have provided a time line, the original of which was attached to their application and comprises the unamended version of the letter of 26 February 2009 and in response to directions 5, 6 and 7 of the court's standard directions in tree disputes, they provided a supplementary bundle, which included a number of documents including, as I have taken you to, an amended version of the letter of 26 February 2009, which is an amended time line as noted in their response to question 14 on p 5 of their amended application. Do you understand? It was not confined and their document is not confined, to letters. It includes, by necessary inference, their recollection of times and events which have taken place in the past, which are not necessarily supported by correspondence. They are entitled to do that and they have done that. We are not going to hear any further evidence from Mr or Mrs Joaquim as to what might or might not have been omitted from that document, because the time is well past, without any adequate reason for why any omissions occurred, for them to provide further evidence in response to direction number 6 of the directions of 24 April. 21 It is the practice of the Court, in all Trees Act matters, because of the very high proportion of self-represented parties, to provide directions that are written in plain English and to endeavour to ensure that all information is exchanged between the parties before the on-site hearing takes place. 22 These directions are given to ensure that the objectives set for the Court by s 56(1) of the Civil Procedure Act 2005 - "The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings" - are met. 23 In an instance such as this, where the applicants were represented by counsel at all stages in the proceedings, there is a particular responsibility for their legal representative to ensure that the parties for whom he is appearing are properly advised of the requirement to satisfy the procedural directions of the Court.

[51]

40 We turn, first, to the jurisdictional questions arising for consideration with respect to the dying elements of the fig tree. The matters that were raised by the applicants as warranting an order for the removal of the fig tree fell in two parts. The first arose from the depositing by the fig tree, over time, of leaf litter and twigs in their gutters causing blockages resulting in backing up of water, overflow into the walls and consequent internal damage to their property. We accept their evidence that this has taken place. 41 The second is their contention that there is a likely risk of injury as the fig tree is adjacent to the applicants' house, because the adjacent part of the fig is dying (if not already dead) and because it is a substantial tree structure in close proximity to their dwelling. 42 In Barker v Kyriakides [2007] NSWLEC 292, the Court published a tree dispute principle concerning the responsibility of those living in urban environments who have the environmental and aesthetic benefits of trees in their vicinity. The tree dispute principle is in the following terms: For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis. The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree. 43 In the present case, there are no exceptional circumstances that would cause us to set aside this principle. As well, if healthy, the tree would have been a significant element of the local treescape and warranting retentionAs a consequence, the failure of Mr and Mrs Joaquim to undertake what would be the reasonably expected levels of maintenance of their gutters is the cause of any damage to their house from the deposition of detritus from this tree in their gutters. Although this damage caused by gutter blockage satisfies the first of the jurisdictional tests in s 10(2)(a) of the Trees Act, as a matter of discretion, we are not prepared to make any orders based on damage caused by gutter blockages. 44 There is, in our assessment, a likely risk of injury to residents of the applicants' house. The risk of injury arises because of the size and substantial nature of this element of the tree and the extent to which it is dying (if not already dead). If it were to fail and fall on the applicants' property, it could cause a significant injury to persons inside the house. 45 Whilst we do not consider that the likelihood of this occurring is such that it would take place within the next 12 months or so, as discussed in the rule of thumb published by the Court in Yang v Scerri [2007] NSWLEC 592, so as to engage the third of the property damage tests in s 10(2)(a) of the Trees Act, we consider that the structure of the tree (primarily a two leader structure from about 1.5 m above the ground) and the extent to which the element closest to the applicants' house is already almost dead (if not already dead) means that the likelihood of it failing, whilst not being in the near future, is such that the risk of injury is unacceptable when considered in the context of s 10(2)(b) of the Trees Act. One of the major roots is already partially severed. As a consequence, we have concluded that that dead portion of the tree requires removal. 46 We now turn to consider the consequences that this removal will have on the remainder of the tree. The removal of the dead portion of the tree will have two consequences. The first is that the structure of the tree will be significantly unbalanced with the overwhelming portion of the remainder of the structure being in the direction of the respondents' house. Second, the canopy of the dead or dying elements - the portion of the tree that is to be removed - has already largely disappeared as part of the dying process. That canopy, in the past, has provided a sheltering effect for the portion that would remain if we were to order, solely, removal of the nearly dead portion. 47 We are satisfied that the opening of the canopy of the otherwise apparently healthy element of the tree (as a consequence of removal of the dying portion) and the resultant structural imbalance caused by removal of that portion will, on balance, lead to there being a likely risk of injury to occupants of the respondents' house. We have so concluded for reasons and a timeframe similar to that set out above for the dead portions of the fig tree. 48 As a consequence, although a conclusion we have reached with considerable reluctance because of the significant nature of this tree, we have concluded that the whole of this tree must be removed. 49 Having concluded that the tree is required to be removed in its entirety, we now turn to the question of who should pay for the removal; being a removal that will be, on our understanding, quite a difficult and expensive task for an appropriately qualified arborist to undertake. 50 During the course of the written material provided by the respondents, a number of references are made to their suspicions that Mr Joaquim (or somebody on his behalf) had poisoned the fig tree. 51 If we were to be satisfied that this was the fundamental cause of the necessity to remove the tree, it would be appropriate to make an order that the cost of the removal of the tree be met by the person or persons who were responsible for the poisoning. This is a course that is available to us, as a matter of discretion, being a matter to be taken into account to as part of consideration pursuant to s 12(i)(i) of the Trees Act:

[53]

52 Such a decision would also be consistent with what was discussed by Preston CJ in Robson v Leischke [2008] NSWLEC 152; (2008) 72 NSWLR 98; (2008) 159 LGERA 280 at para 205 noting that this was the basis for the decision for such an order in Horn & anor v Latter [2007] NSWLEC 744. Horn, however, it should be noted, was a case in which the applicants in that case acknowledged, in their written statement, that they had poisoned roots of the tree. 53 We now turn to consider, specifically, whether we could be satisfied, on a Briginshaw basis, that the fig tree has been poisoned and that the poison that was applied by or on behalf of Mr Joaquim. 54 First, we deal with the general statements made by the respondents of their suspicions concerning Mr Joaquim. The respondents observed Mr Joaquim and/or his son (this not being material for these purposes) undertaking activities designed to sever a major root of the fig tree just inside the boundary of the Joaquims' property and a matter of 400 mm or so from the main trunk base of the tree. However, there is no evidence that the respondents actually saw Mr Joaquim applying anything that could be construed as a poison to this point of the partially severed tree root. As a consequence, we pay no regard to the respondents' suspicions as they do not have any direct personal, observational evidence of any such poisoning. 55 The respondents also, in their written material, referred to a number of arborists and other relevant professionals who have told the respondents that they considered that the tree had been poisoned. Except to the extent that documentary evidence may have been provided by such persons, a matter to which we will return, these persons are not identified and the precise terms of the conversations had not been recorded (as to the name of the person, the content and context of these conversations and the time and place these conversations took place). 56 The result of this is that the applicants were not afforded the opportunity to require the unidentified makers of those statements to attend for cross-examination about the basis upon which they formed such a conclusion. As a consequence, although we are not bound by the strict rules of evidence (vide s 38(2) of the Land and Environment Court Act 1979), we consider that it would be a denial of natural justice to the applicants to give any weight to such unidentified hearsay and we pay no regard to it. 57 However, the respondents have filed and served two documents that provide evidentiary foundations in support of a conclusion that the tree has been poisoned. The first of these is a letter from Mr Glastras, a contractor who trades under the business name Surroundscape Landscaping and Horticultural Services. In a letter, dated 28 December 2007, he said, inter alia, specifically referring to the fig tree (although incorrectly identifying it as a Port Jackson fig): I found evidence that the tree in question has been subject to recent stress most likely from unnatural means. Signs are most consistent with having been recently poisoned. This tree has significant age and size and should be protected. 58 Second, the respondents commissioned a report from a consulting arborist, Mr Varley, who trades under the name of Allied Tree Consultancy. Relevantly to the fig tree, his report is in the following terms: The tree exhibited a sudden dieback of over half the crowns foliage (associated with one stem) with symptoms consistent with poisoning via a herbicide. Roots extending into the adjacent lot had been recently severed at the fence line.

[59]

CAFFREY: No. Subpara (b) is more applicable. 64 This is incorrect from the face of the council's document concerning the root barrier, in our view. Whilst there is some ambiguity in the document, we are of the view that taking the document as a whole, reliance on condition (b) alone is permissible for the pruning of overhanging branches but compliance with condition (a) was necessary for the installation of the root barrier. Condition (b), in its express terms, applied only to branches - not to roots - and satisfaction of condition (b) does not provide any assistance with non-satisfaction of condition (a). Condition (a), set out above, we consider was a necessary, plain English and unfulfilled condition that was required to be fulfilled prior to the carrying out of any work on the roots of the fig tree. 65 In this context, we consider it appropriate to have regard to the fact that Mr Joaquim commenced attempting to sever the roots of the fig tree without the respondents' consent and thus in breach of a necessary precondition of the council's Tree Preservation Order permission. We consider it reasonable to conclude that his action was contrary to the terms of the council's instruction and failed to have regard to those instructions. 66 As we have earlier observed, the tree is dying asymmetrically. 67 A significant root of the fig tree has been partially severed by the applicants. A significant number of holes are located on the applicants' side of the portion of the fig tree that is nearly dead. The nature and spacing to the holes' location together with the fact that, at least around some of the holes, there was no sub-bark disturbance, leads us to conclude that these holes, in their totality, are not consistent with what might be expected had they been caused by wood borers or some other form of insect attack on the fig tree. Although Mr Caffrey urged that we should reach such a conclusion, we are not inclined to do so. His submissions were as follows [transcript of 30 June at page 49 line 33 to page 50 line 45]: CAFFREY: Good, thank you. A comment about these holes. Now, well, first of all, the roots of the fig tree are such that commonsense would dictate that the sewer lines of my client's house, there's no other tree in the area that could possibly have caused the damage, the roots coming under the fence and damaging his sewer pipes. There's no other possible, reasonable explanation for that.

[84]

72 However, we consider, as we earlier noted, that this independent evidence stands unchallenged by any contradictory expert evidence provided by the applicants. All we have is the bald denials by Mr Joaquim. 73 We accept, on the basis of the holes which we have observed and for which there is no credible alternative explanation coupled with the independent evidence of the horticulturalist and of the arborist retained by the respondents to advise on the health of the tree, that, notwithstanding the denials of Mr Joaquim, this tree has been poisoned. This observation is also consistent with Commissioner Fakes' professional experience and, with the more limited (but modestly extensive) experience of Senior Commissioner Moore in hearing tree dispute cases. We also consider that, given the respondents did not wish this tree to be removed and that Mr and Mrs Joaquim had had an application for its removal refused by the council a very short time prior to the tree's symptoms first being independently examined on the half of the respondents with that examination leading to a poisoning conclusion, it is reasonable for us to conclude, on the balance of probabilities, that despite his denial, this tree was either poisoned by Mr Joaquim or by some other person on his behalf. 74 We have concluded that the otherwise inexplicable asymmetric dying of the fig tree has been caused either by: o The administration of poison to the fig tree by the applicants [whether via the holes we have observed in the trunk of the dying portion of the fig tree or via application to the partially severed fig tree root - either being possible - a matter which we do not need to determine]; o The partial severing of the significant root by the applicants and by the administration of poison to the fig tree by the applicants; or o The partial severing of the major root by the applicants. 75 We consider it more likely than not that poisoning is the more probable cause of the fig dying. However, it is not necessary for us to determine whichever of these causal factors is correct as, on any construction of them, we are comfortably satisfied on the Briginshaw standard that the cause of the death of the element of the fig tree closer to the applicants' property has been caused solely by actions undertaken by or on behalf of the applicants. 76 The necessary first consequences which follows from that conclusion is that the removal of the portion of the fig tree closest to the applicants' house is made necessary solely as a consequence of some activity or combination of activities undertaken by the applicants. 77 The second consequence that necessarily flows is that the requirement for the removal of the remainder of the fig tree is, in turn, wholly necessary because of the actions of the applicants or persons acting on the applicants' behalf. 78 It therefore follows that, in consideration of the causal matters that are contained in s 12(i)(i) of the Trees Act, the sole cause of the necessity to remove what would otherwise have been a healthy, significant and mature fig tree are actions by the applicants or some person acting on the applicants' behalf. 79 For that reason, although we have concluded, for the reasons earlier enunciated, that the fig tree should be removed and we are of the view that we should order that that removal be undertaken by the respondents, we also have concluded that they should be reimbursed the totality of the cost removal of the fig tree by the applicants.

[88]

87 We can see no basis, on the evidence of our own observations and on this arborist's report, to conclude that the test in s 10(2)(b) of the Trees Act is satisfied. 88 It is pertinent to note that a fear, no matter how honestly or genuinely held, is not a basis for ordering intervention with or removal of tree unless there is some factual basis upon which it is reasonable to conclude that the feared occurrence will, in fact, come to pass. In this instance, whilst we accept that there is an apprehension that there is a risk of the injury, we are satisfied that there is no evidentiary basis upon which we could conclude that there is, in fact, such a risk. 89 We now turn to whether or not the extent of the damage to the fence warrants any order for interference with or removal of this tree. We have no evidence on the age of the fence but the extent of the damage causes us to conclude that it has occurred over some period of time and in a slow and incremental fashion. The damage, in addition to being minor, is merely aesthetic and does not now (nor is likely in the future) to be functional. 90 The tree, in itself, is a mature and significant specimen without any apparent structural defects. As the damage is minor and the tree will become even more significant in the landscape of the respondents' rear yard as a consequence of the order for removal of the fig tree, on balance, we do not consider that the damage to the fence is sufficient to warrant any order for interference with or removal of this tree. For completeness, we note that there is a plant growing on the tree but we are satisfied that this plant, in itself, is unlikely to have any significant immediate or longer-term impact on the tree. 91 Having reached that conclusion with respect to this tree, as noted in Hinde v Anderson and anor [2009] NSWLEC 1148, should circumstances change, a subsequent application concerning a tree that had already had a determination made about it could be made to the Court under the Trees Act in light of any changed circumstances. Such a position, obviously, applies to this tree. The Kaffir Plum 92 With respect to the Kaffir Plum (the plum tree), it is, obviously, in serious decline. A branch from it fell on the fence and the applicants' clothesline in June 2008 and another in July 2008. The first test in s 10(2)(a) is therefore satisfied. However, there had been no further branch failures from this tree between that time and the on-site hearing. 93 This tree is toward the rear boundary of the respondents' property and at sufficient distance from the common side boundary shared with the applicants that if it were to fail, a failure we consider unlikely in the next 12 months or so, the target area within the applicants' property, if the tree were to fall in that direction, is also close to the rear boundary of the applicants' property and would also be adjacent to the fence with the respondents' property. 94 However, in addition to not considering it likely that there would be whole tree failure of this tree within the next 12 months, if it were to fail, there is no rational basis upon which we could conclude that it would fall in the direction of the applicants' yard if it did so. Although this tree is in serious decline (as Mr Varley noted), we could not see any branch junction indicating a further branch failure was likely. 95 We have no information about the use of the area in the property located immediately to the rear of the respondents' property and, as a consequence, are not able to make any assessment as to whether any of the tests in s 10(2) of the Trees Act would be satisfied for this tree with respect to that property. In the rear yard of the respondents' property, this tree is located in what appeared to be a comparatively untrafficked area of the garden and, if it were to fail in any direction within their property (other than directly towards the fence with the applicants' property, would be unlikely to cause any injury to any person or damage to any property. 96 As a consequence, as we do not consider that this tree is likely in the near future and cause damage to the applicants' property and because we do not consider that it is a likely risk of injury to any person, there is no jurisdictional basis upon which we could conclude we should order removal of this tree. 97 However, in reaching this conclusion, we note that, as recorded earlier, it will be open to the applicants to bring a further application if circumstances were to change that might lead to a conclusion differing from that which we have reached immediately above.

[92]

102 Two matters arise as a consequence of this. First, we turn to consider whether any work should be ordered to the tree and, if so what. Mr Varley considers that this tree is in decline. However, he did not consider that it posed any further risk of damage or injury beyond the boundaries of the respondents' property. We concur from our observations. Although our jurisdiction is engaged because of the past damage to the applicants' house, the unlikelihood of future damage or injury beyond the boundaries of the respondents' property causes us to assess merely the likelihood of injury to persons on the respondents' property. 103 We accept there is some risk of this if dead wood is not removed from this tree. Therefore we consider that it would be prudent, for this tree, to order that all dead wood with a diameter greater than 30 mm at the point of attachment be removed because, by so doing, the risk of further failure by a dead branch will be appropriately minimised. This is an appropriate preventative measure which should be undertaken at the respondents' expense as part of the prudent future management of this tree particularly in light of the fact that, as we propose to order removal of the Hills fig, this tree will have greater exposure to any wind stresses in the vicinity as its canopy will be much more open by removal of the protective effect of the fig. 104 With respect to compensation for the damage caused, as we have concluded that the branch was likely to have been dead at the time it fell, although the applicants had not put the respondents on specific notice of their concern about this tree prior to the event, we consider that proper management by the respondents of trees on their property should have led to the removal of this branch before it separated from the tree. We have therefore concluded that the loss of insurance no-claim bonus and the claim excess for rectification of this damage should be allowed to the applicants. The Illawarra Flame tree 105 The final tree that is the subject of the application is an Illawarra Flame tree. This tree has a substantial amount of its structure covered by an ivy vine growing over it. 106 Although, in the longer term, the presence of the ivy may contribute to the death of the tree and, eventually, its failure, there is no indication, from our observation, that this is likely to occur in the near future. This tree has not caused any damage to the applicants' property. There is, therefore, no jurisdictional basis upon which we could order interference with or removal of this tree. Sale of the respondents' property 107 We note that, since this decision was reserved, the respondents have advised the Court that they have sold their property. Until title is transferred, these orders will still bind the respondents. 108 After title is transferred, the new owners may become bound by the orders concerning the trees if the provisions of s 16(2) of the Trees Act are followed. The orders concerning direct payment of monies by the respondents to the applicants as compensation for damage to the applicants' property will continue to bind the respondents notwithstanding the sale of their property.

[94]

110 Although we do not have the power to order payment of interest on any unpaid amount, we observe that a power to order payment of such interest lies with any court that might be called upon to enforce payment pursuant to any order of this Court. Conclusions 111 As the necessary consequence of that discussed earlier, we have concluded that there is an appropriate jurisdictional basis for us to agree to the consent orders for the removal of the two small trees at the front of the respondents' property and for that removal to be at the respondents' expense. 112 With respect to the contested issues, we have concluded that: o The state of health of the dying portion of the Hills Fig tree is such that we are satisfied that there is a likely risk of injury to residents of the applicants' property if this portion of the Hills Fig tree is not removed; o Therefore, the Hills Fig tree, as to the portion of it that is dying and is closer to the applicants' house should be removed; o As a consequence of the necessity to order removal of the dying portion of the Hills Fig tree closest to the applicants' house, the remainder of the Hills Fig tree will be rendered sufficiently unstable to be a likely risk of injury to persons resident in the respondents' house and, consequently, the remainder of the Hills Fig tree requires removal; o The asymmetrical dying of the Hills Fig tree would not have occurred, on the balance of probabilities, without the intervention of the applicants, by partially severing a major root of this tree and/or by poisoning this tree; o Because we have concluded that the actions of the applicants have required removal of the dying portion of the Hills Fig tree and, as a necessary consequence, removal of the remaining portion of the Hills Fig tree, the total cost of removal of the Hills Fig tree is to be borne by the applicants after the presentation to the respondents of a receipted account for the completion of the work of removal of this tree; o A small eucalypt, adjacent to the Hills Fig tree also requires to be removed as we cannot be satisfied that the removal of the Hills Fig tree can be carried out in a fashion that will not impact sufficiently adversely on this tree's integrity to require that this tree be removed. Because the removal of this tree is a necessary consequence of the move of the Hills Fig tree, removal of this tree should also be at the cost of the applicants on the same basis as the removal of the Hills Fig tree; o There is no appropriate basis to order interference with or removal of the Kaffir Plum; o Although the Pine tree is leaning on and has caused a minor displacement to the boundary fence between the properties thus giving rise to jurisdiction pursuant to s 10(2)(a) of the Trees Act, we are not satisfied that there was any likely risk of injury as we consider it unlikely that this tree will fail. As the damage to the fence is minor, we have concluded, as a matter of discretion, that although the Court's jurisdiction is engaged, no order should be made with respect to this tree; and o As the applicants' property has been damaged by a dead branch falling from the second eucalypt on the respondents' property under circumstances where we have concluded that prudent tree management would have avoided this, we are satisfied that we should order the removal of dead wood from this tree and require payment to the applicants of the amount of $250 as claimed; o As to the question of root damage to the sewer, we have concluded that the failure to notify the respondents earlier than the time identified from the evidence means there is no basis for any compensatory order and the possibility of future damage is to be removed by removal of the fig tree; and o Finally, any other aspects of the application should be refused. 113 It therefore follows that we need to make two distinct elements in the required orders to give effect to this decision. The first will be by consent to reflect the agreed position concerning the two small trees at the front of the respondents' property. The second element of these orders is necessary to give effect to the matters which we have determined that are required in response to the application Time for compliance 114 Because the orders we make will involve not merely significant work to be organised and undertaken by the respondents but also, significant expenditure by the applicants to reimburse the costs of the bulk of those works to the respondents within the comparatively short period we propose to allow for such reimbursement to take place (as we do not consider that the respondents should carry any significant monetary cost for actions that have been made necessary by the applicants conduct), we propose to allow a longer (than would ordinarily be the case) period of time for such works to be arranged. 115 In addition, we consider this appropriate because the scope of the works to the Hills Fig tree may render it necessary to take additional care given the proximity of this substantial tree to both houses. 116 As a consequence, we propose to order that the works to be carried out to the various trees on the respondents' property are to be carried out by the end of February 2010. By allowing this period of time, the applicants will also have had sufficient time to make such arrangements as may be necessary for them to meet the substantial portion of the costs of the works to be undertaken. 117 As a consequence of this additional time period, we do not propose to allow a significant period of time between the service on the applicants of a receipted account for the portion of the works that are to be at their expense and the requirement that they reimburse the respondents for this. 118 In this context, we note that the respondents will need to ensure, as some of the works are to be undertaken at their expense, that any account furnished to them by the arborist carrying out the works is sufficiently precisely itemised to enable a clear identification of the costs of the removal of the Hills Fig tree and of the small eucalypt adjacent to it as the reimbursement order will be confined to those elements of the works. Orders 119 The orders of the Court, by consent, are: 1. The Camphor Laurel at the front of the respondents' property adjacent to the boundary with the applicants' property is to be removed at the height of 100 mm above ground level and the stump poisoned; and 2. The Privet at the front of the respondents' property adjacent to the boundary with the applicants' property is to be removed at the height of 100 mm above ground level and the stump poisoned. 120 The further orders of the Court are: 3. The Hills Fig tree in the rear of the respondents' property adjacent to the boundary with the applicants' property is to be removed and the stump ground to 100 mm below ground level; 4. The small eucalypt immediately adjacent to the Hills Fig tree is to be removed and the stump ground to 100 mm below ground level; 5. Any dead wood greater than 30 mm in diameter at the point of attachment on the eucalypt located generally to the west of the Hills Fig tree (and from which eucalypt branches fell on the applicants' property causing damage to the applicants' roof and television antenna) is to be removed; 6. Organisation of the carrying out of all works in orders (1) to (5) is the responsibility of the respondents; 7. All work in orders (1) to (5) is to be carried out by an arborist with AQF level 3 qualifications and appropriate insurances; 8. All work in order (5) is to be carried out in accordance with Australian Standard 4373-2007 9. The applicants are to provide any necessary access to their property for the carrying out of any of the works in orders (1) to (5); 10. The applicants are to be given reasonable notice of any access being required to their property for purposes of carrying out work required by orders (1) to (5); 11. Any access to the applicants property for the purposes of carrying out works in orders (1) to (5) is to be between the hours of 7:30 AM and 5 PM Monday to Friday or 8.00-4.00 on Saturday; 12. The application with respect to the Kaffir Plum tree and the Pine tree in the rear yard of the respondents' property is refused; 13. All work in orders (1), (2) and (5) is to be carried out at the respondents' cost; 14. The cost of the work required in the orders (3) and (4) is to be reimbursed by the applicants to the respondents within 14 days of the service on the applicants of an itemised receipted account for the carrying out of those works; 15. The respondents are to pay the applicants, within 90 days of these orders, the sum of $295.44 as compensation as a consequence of damage to the roof and television aerial of the applicants' property 16. Despite (15), if an itemised receipted account for the cost of the work required in the orders (3) and (4) is served on the applicants within 76 days of these orders, the applicants are to deduct the sum of $295.44 from the amount to be paid to the respondents pursuant to (14) in lieu of the requirement for the respondents to pay this sum to the applicants; 17. Liability for payment of any amounts pursuant to these orders is a joint and several liability of the parties required to make such payment; 18. All works required to be undertaken by orders (1) to (5) are to be completed by 28 February 2010; 19. Any remaining aspect of the application is refused; and 20. The exhibits are retained.

Joaquim v Adamson

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Judgment (96 paragraphs)

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Cases Cited (10)

Cited By (10)