Kennedy & anor v Hayes & anor

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1COMMISSIONER: The applicants have owned their two and a half acre property for over twenty years. In about 1992 they constructed a garage close to the eastern boundary fence. At that time there were many trees, including the two Sydney Blue Gums the subjects of this application, growing nearby on the adjoining property. 2Sometime in June 2012, a branch or branches fell from one or both of the Blue Gums and damaged the garage roof. 3The applicants had the roof repaired at a cost of $1430. The first applicant's statement of evidence indicates that about 2 hours after the roof was repaired, another branch fell from one of the trees and damaged another part of the roof. 4According to the statement, the applicants contacted the first respondent some days after the roof had been repaired and said words to the effect of "Your trees have damaged my roof and I have arranged for an arborist to come to the property and discuss the matter." There was no request for reimbursement. 5Gosford Council was contacted and an arborist, presumably from the council, inspected the trees. 6According to the first respondent, after he was advised of the damage he sought council approval for the removal of the trees on the basis of damage to the applicants' garage. Council advised it had no record of the garage having been approved. In any event, removal was refused and the council approved the removal of several large live limbs that were overhanging the applicants' garage. According to the first respondent, council's approval took some time to come through. 7The applicants' arborist, who was doing other work on the applicants' property, provided a quote for the pruning. The respondents considered this to be too expensive and obtained other quotes. In the meantime, the respondents were advised that the pruning would be carried out by the applicants' arborist at the applicants' expense. The trees were pruned in about late September/ October 2012. The first respondent considered that as the pruning had been carried out, and he was not advised otherwise, the matter had been dealt with. 8The applicants undertook further roof repairs in December 2012 but did not advise the respondents. These repairs cost $880. 9Since that time a number of branches appear to have fallen from the trees. There is another hole in the garage roof, which is alleged to have occurred over five months ago. Photographs in the application and statement show other dead branches against cars parked beneath the trees. 10In August 2013, the applicants' solicitor wrote to the respondents advising them that the trees were continuing to cause damage to the garage and that unless action was taken to remove or prune the trees, the matter would proceed to the Court and that orders would be sought for tree removal and compensation for moneys spent. 11The matter was listed for an on-site hearing on 9 May 2104. On that day, there was a medical emergency in the respondents' family and the matter was adjourned until 18 June to accommodate the applicants' travel plans. 12The applicants have applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking either the removal of the trees or the pruning of branches back to the boundary line. They also seek compensation for the $2310 spent on roof repairs as well as the costs associated with expert reports and the filing of the application. 13With respect to the last element of the claim, Commissioners do not have the jurisdiction to award such costs. A separate Notice of Motion must be filed, and be heard by a Judge or Registrar of the Court. 14The key jurisdictional tests under Part 2 are found in s 10(2). This states that the Court must not make an order unless it is satisfied that any tree, the subject of the application concerned, has caused, is causing, or is likely in the near future to cause, damage to the applicant's property or is likely to cause injury to any person. 15I am satisfied on the evidence that branches falling from one or both trees have caused, and could continue to cause, damage to the applicants' property and could potentially cause injury to anyone in the vicinity. 16Therefore as s 10(2) is satisfied, the Court's jurisdiction to make any orders it thinks fit under s 9 of the Act is engaged. This requires consideration of matters under s 12 of the Act. 17Relevantly: