Krechkin v O'Hart

Land and Environment Court (NSW)|2011-08-29

Judgment 1COMMISSIONER: This is an application pursuant to s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Bayview against the owners of a tree growing on an adjoining property. 2The applicant seeks orders for the removal of the tree at the respondents' expense. He also seeks a sum of $2420 for repairs to the roof of his garage, (this being a quote for the works). The applicant also seeks orders for compensation for " damage to any other property owned by the applicant caused by the falling branches from the said tree".

Procedural matters 3Before addressing the application I note a procedural issue that arose at the commencement of the hearing. On 18 July 2011, the parties in the matter participated in a telephone directions hearing. The written directions were sent via express post to their respective addresses. Court Direction #6 required the applicant to file and serve any further statements, affidavits, reports, photographs and any other documentation upon which he intended to rely by 10 August 2011. Direction #9 required the respondents to file any similar material and or alternative orders by 19 August. 4The respondents' material was filed with the Court on 19 August. On 25 August, the applicant filed an affidavit responding to the respondents' material. 5At the hearing the applicant was informed that the additional material did not comply with the directions of the Court, being too late, and would not be admitted into evidence but that he could make submissions on the respondents' material . I consider it would have been procedurally unfair to the respondents to allow the material into evidence. However I also note that the documentation did not add to the evidence already provided and was mainly historical in nature. 6The Land & Environment Court's - 'Practice Note - Class 2 Tree Applications' published on the Court's website clearly details the procedural matters to be considered by each of the parties. Paragraphs 14-22 relate to the preliminary hearing of tree applications, that is, the directions hearing. Paragraphs 27 and 28 cover 'applications to vary the Court's directions'. Therefore, had the applicant wished to vary the timetable, the Practice Notes set out the appropriate way in which that could have been achieved.

The Application 7Returning to the application, the tree is a dead Eucalyptus sp, the majority of which overhangs the applicant's property. The tree is located on the boundary of the parties' properties but is principally on the respondents' property in the north-eastern corner of their garden. A timber dividing fence has been recently constructed and incorporates the trunk. 8In 2010, the applicant constructed a council approved studio and garage at the rear of his property. His property is accessed via a right of way between properties to his north. The brick garage with a metal roof has been constructed beneath the tree. There is a parking bay to the east of the garage (also beneath the tree) and a concrete path between the rear of the garage and the dividing fence. The applicant contends that the tree was not dead when he commenced construction of the garage. 9The respondents purchased their property in July 2010 and moved into their dwelling in August 2010. According to the first respondent's affidavit, the respondents did not notice the condition of the tree when they inspected the property before they purchased it but they did notice that it appeared to have died around the time they moved in. Photographs in exhibit 1, said to have been taken in September 2010, show the canopy to be dead with dead leaves attached. At that stage the respondents contend that construction activity was still underway on the applicant's land. 10Approximately 1 week after the respondents moved into their property, the applicant approached them and asked them to remove the tree. Exhibit 1 records the respondents' recollections of the discussions between themselves and the applicant. 11The discussions include matters relating to the erection of, and payment for, a dividing fence and a discussion as to who should pay for the tree. In essence, the respondents agreed to remove the tree at their cost but requested it to be accessed via the applicant's property. The quote for the work from Eagle Tree Lopping Services was $2500. However, at the time of the first request, as the applicant was about to pour a concrete driveway, the access was denied. It appears that from mid August 2010 until 23 September 2010 various offers were made to remove the tree with requests for access. It appears that access was granted however, the applicant had concerns over the insurance cover of the tree and fencing contractors. 12The respondents subsequently obtained a verbal quote for $2420 from Essential Tree Services to remove the tree. The respondents were advised that the company was fully insured. The respondents also obtained permission from Pittwater Council to remove the tree. 13It appears that for a number of reasons, including the ongoing dispute about the fence, the applicant withdrew his permission for access from his property. In October 2010, the respondents proceeded to have 2 low branches removed from the tree that they considered to be dangerous. The applicant contends that he allowed the arborist access to his property between the rear of the garage and the respondents' property in order to handle the branches. The fence was installed after the branches were removed. 14On 17 May 2011, the respondents emailed the applicant regarding the removal of the tree, access required and who should pay. On 26 May, the respondents received a 'Final Notice of Demand' from the applicant in which he states that, further to a conversation between the parties on that day: I have observed that there was a large damaged section of the roof of my garage witch [sic] was caused by the dead tree on your property. The damage was cause [sic] by the tree falling onto the roof and then falling onto the concrete beneath. 15The damaged panels of roof were observed at the on-site hearing. However, no other damage to the applicant's property, that he contends was caused by branches falling from the tree, was shown to the Court. 16On 31 May 2011 the respondents wrote to the applicant agreeing that the tree should be removed but withdrawing their offer to pay the full cost of doing so. Their reasons include the costs of removing the branches and the fact that the tree is partly on the applicant's land. Mention was made of having to get permission from the council as the permit had expired. The applicant was also advised that he could make an application under the Trees (Disputes Between Neighbours) Act 2006. 17In response to that letter, the applicant emailed the respondents and maintained that they should pay all costs for the removal as the tree is on their land and that council approval is no longer necessary for dead trees. The email stream continued with the applicant again refusing access to any contractor on the basis that the previous removal of branches damaged another property.

Findings 18Under s 10(2) of the Act, the Court must not make an order unless it is satisfied that the tree 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. 19I am satisfied that the tree has caused damage to the applicant's property and could continue to do so; it could also cause injury to any person. Therefore as several of the tests in s 10(2) are satisfied, the Court can proceed to consider what orders it should make. Section 9 of the Act provides the Court with a degree of discretion in the making of orders. 20It is clear that the tree must be removed as soon as possible however, the disputes between the parties remain: who should pay, what access is required, and whether the respondents should compensate the applicant for the damage to the garage roof. 21Before making orders, the Court must consider a number of discretionary matters listed in s 12 of the Act. 22Relevant in this case is that the tree is principally on the respondents' land (s 12(a)). Also relevant are sections 12(h)(ii) and (i)(ii)- actions of the parties. 23In the vast majority of matters determined by the Court under the Trees Act, the tree owner has been required to meet the costs of tree removal. The respondents submit that in the first instance, the applicant should pay for the removal of the tree, as they contend that the applicant's conduct (in the building of the garage) contributed to the need for the tree removal. In the alternative, the respondents contend that should the Court order shared costs, they would pay 60% of a discounted rate for the removal of the tree because when they originally offered to remove the tree, the amount quoted was $2500. This rate was based on being able to use the applicant's property. As a result of the applicant denying access, the respondents could not proceed with the removal but proceeded to have dangerous branches removed from the tree at a cost of $650. The delay in removing the tree has lead to the tree deteriorating and becoming more difficult and dangerous to work on; therefore the most recent quote for the removal is $2970. The amount the respondents contend they should pay is $1,137. The shared cost is based on their estimate that 40% of the tree is on the applicant's property and 60% on their property. 24With respect to the ownership of the tree, for the purpose of the Act, the tree is substantially on the respondents' land and therefore they are now responsible for it. I note that the invoice for the branch removal also includes other work that was carried out and the invoice does not clearly itemise each activity; therefore I cannot fairly take this into account [although I note the comments of the first respondent in [23] of her affidavit]. However, I am satisfied that the actions of the applicant delayed the timely removal of the tree and therefore, the amount payable by the respondents is to be a maximum of $2500. 25In considering the payment of compensation for the damage to the applicant's roof, I am satisfied that the respondents acted appropriately and in a timely manner when they were first given notice of the dead tree. However, again because of the actions of the applicant in denying reasonable access for this to occur, a branch fell onto the roof some months after. If the tree had been removed when the initial offers were made, the damage would not have occurred. Therefore no orders will be made for any payments by the respondents for the damaged roof. 26In regards to the respondents' contentions that the construction of the garage beneath the tree may have contributed to the demise of the tree, while this is possible because of the proximity of earth works within the expected root zone of the tree, no independent arboricultural evidence has been produced that supports this contention. 27The respondents raise the Tree Dispute Principle published in Black v Johnson (No 2) [2007] NSWLEC 513 at [15]. This states: The existence of a tree prior to the construction of a structure which has subsequently been damaged by the tree is not a matter likely to be taken into consideration on the question of whether or not some order should be made for interference with or removal of that tree or other remedial work. On that question, the seriousness of the damage and any attendant risks are the primary matters for consideration. If interference with or removal of the tree or other work is warranted because of the extent of the damage the tree has caused or risks now posed by the damage, the fact that the tree was already growing in the vicinity at the time the structure was built is a matter which may be relevant and appropriate to take into account on the question of who should undertake any work and/or apportionment of the cost of such work. However, it will also be relevant to consider whether or not the tree was self-sown or was planted. If it was planted, consideration will need to be given to the appropriateness or otherwise of: the type of tree planted; and the suitability of the location in which it has been planted. Equally, it will be relevant to consider whether the choice of location for the structure was unnecessary or avoidable or, on the other hand, if it would have been an unreasonable constraint on the development potential of the site had the existence of the tree limited that potential. 28In the matter now before the Court, it is clear that the tree pre-existed the garage. It is not known if the tree was self-sown or planted. On the site I observed that the garage and studio complex formed an 'L' shape and that it seemed, on the face of it, that there was ample room on the site to accommodate the garage on the opposite side of the site way from the tree. While this is a consideration, the actions of the applicant in delaying the removal of the tree remain the main reason for refusing compensation. 29On the issue of access, the applicant states that he asked the arborist who removed the branches from the tree whether the tree could be removed through the respondents' property and the answer was 'yes'. While this may be technically possible, it is the Court's view that it would be safer, cheaper and more efficient for a significant portion of the tree, if not most of the tree, to be accessed from and lowered onto the applicant's property. This is especially so given the deteriorating and more fragile condition of the tree. Non-compliance with a Court order for access could result in the suspension of the orders for the removal of the tree ( Vieira v Kaleski [2008] NSWLEC 159). 30With regards to the height to which the tree should be removed, for safety reasons, the tree need only be removed to a height of 3m above the ground; however, should the respondents require the tree to be removed to ground level, that is to be at their expense. 31Therefore as a consequence of the forgoing, the Orders of the Court are: (1)The application to remove the tree is upheld. (2)Within 14 days of the date of these orders, the respondents are to obtain 3 quotes for the removal of the tree to a maximum height of 3m above ground and to ground level. The price for each height should be clearly itemised. (3)The quotes are to be obtained from AQF level 3 arborists with proof of public liability insurance cover to a minimum of $10M. (4)The applicant is to provide all reasonable access on 2 working days notice for the purpose of quoting. Notice may be given via email. (5)The respondents are to provide the applicant with the 3 quotes. If the parties cannot agree on the contractor, the cheapest quote is to be selected and the respondents are to engage and pay for that contractor. (6)The applicant must provide access for the works to be carried out from his property. This includes vehicular access. (7)The respondents are to give the applicant two working days notice of the commencement of the works. (8)The tree is to be removed to the nominated height within 28 days of the date of these orders. (9)The work must be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry. (10)The applicant is to reimburse the respondents the balance of the agreed quote for the removal of the tree; that is, any amount in excess of $2500, within 21 days of the receipt of a tax invoice for the completed works. (11)The application for compensation for damage to the garage roof is dismissed. (12)The application for compensation for any other damage to the applicant's property that may have been caused by branches falling from the tree is dismissed.

J Fakes Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 September 2011

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