Rizk v Department of Housing

Rizk v Department of Housing - [2009] NSWLEC 1155 - NSWLEC 2009 case summary — Zoe

[20]

12 Further, before determining an application, the Court is to consider the matters in s 12 of the Act. The tree 13 I observed the tree to be a Sydney Blue Gum (Eucalyptus saligna) 25 to 30 m tall with a crown spread of about 20 m and trunk diameter of about 1m. It appears to be healthy, stable in the ground, with no decay or weakness visible in the lower trunk. The tree has a single, vertical trunk to about 5 m above ground where it branches to form a major trunk inclined slightly to the north-west and a minor trunk inclined slightly to the south-east. Those two trunks further branch to form four or five generally vertical trunks. The trunks and branches appear to have good taper and are not heavily end loaded. Ten or more pruning cuts visible on trunks on the southern and eastern side of the tree indicate that many live branches of about 100 mm to 200 mm diameter have been pruned in the last year or two, reducing the overhang of Mr Rizk's property. The remaining crown of the tree appears to be fairly well balanced over the lower trunk, with the greater bulk of the crown to the north-west. There do not appear to be any branches larger than about 50 mm diameter directly over Mr Rizk's house. There appear to be only a few branches leaning towards his house, and those branches are high in the crown, with diameters up to about 150 mm. I did not observe any included bark in major trunk or branch junctions. There is some bare wood visible in a branch junction at about mid tree height on the northern side of the tree. There are four pruning cuts of between 150 mm and 300 mm diameter on the trunk between 2 m and 6 m above ground. Photographs indicate that the second highest of those, just below the major fork, is the location where the remaining stub was removed after a live branch broke a few metres from the trunk in January 2007. I observed a small amount of dead wood up to about 5 cm diameter in the tree. Inspection, reports and pruning 14 Mr Rizk states that he is aware of two occasions of pruning and one occasion when Mr Lydon supervised pruning, since April 2007. He also states that there was often only a short time between pruning and the next dead branch falling. His claim for compensation includes costs for Mr Lydon to supervise re-pruning of the tree by Transfield in June 2008 and half the cost of a report/assessment for pruning prepared by Mr Lydon to facilitate that pruning.

[38]

37 Noting the problems that Housing has identified with its records, and the dissatisfaction that Mr Rizk has found with Housing's contractor arrangements, I will, with Housing's agreement obtained at the hearing, order that Housing use a consultant and contractor from a list to be provided by Mr Rizk, that the work be done at Housing's cost by 31 July 2009, that the consultant and contractor be paid within 28 days of submission of invoices to Housing, and that the Senior Client Officer of the Ryde Office of Housing have carriage of these matters. Orders 38 The application is upheld in part, and the Court makes the following Orders that apply to 15 Kingsford Avenue, Eastwood: a. The orders of the Court made in Rizk v Department of Housing [2007] NSWLEC 297 on 20 April 2007 are rescinded; b. Mr Rizk shall provide a list of three AQF Level 5 arborists that he would accept to inspect and report on the tree, and a list of three AQF Level 3 arborists that he would accept to prune dead wood from the tree, to the Senior Client Officer of the Ryde Office of Housing by 10 June 2009; c. The tree shall be inspected by an AQF Level 5 arborist selected from Mr Rizk's list, and a written report prepared by that arborist addressing the health, structure, defects and safety of the tree, and setting out a plan for maintenance of the tree until 2014; d. Dead wood having a diameter of greater than 20 mm at its point of attachment shall be pruned from the whole of the tree by an AQF Level 3 arborist selected from Mr Rizk's list and having suitable insurances, and the work shall be done in accordance with the Australian Standard AS 4373-2007 Pruning of Amenity Trees , and the NSW WorkCover Code of Practice for the Amenity Tree Industry (1998) ; e. The work in c. and d. above shall be completed by 31 July 2009 at the cost of the Department of Housing. f. A copy of the report prepared in accordance with c. above shall be given to Mr Rizk by 15 August 2009; g. The arborists who do the work described in c. and d. above shall invoice Housing directly for that work, and Housing shall pay those invoices within 28 days; h. The Senior Client Officer of the Ryde Office of Housing shall be the contact person for all matters regarding the tree work required by these orders; i. Mr Rizk shall grant access over his property to carry out the work described in c. and d. above; j. The work described in c. and d. above shall take place at reasonable times, and on reasonable notice to Mr Rizk; k. The department of Housing shall pay Mr Rizk $220 by 15 June 2009 as compensation for roof repairs shown on his invoice/receipt No 01700 from Roofshield dated 20 November 2007; l. These orders do not prohibit removal of the tree if consent is granted for that removal by Ryde City Council.

[39]

      Peter Thyer
      Acting Commissioner of the Court
      The formal orders are not included as part of this judgment but a copy may be obtained from the Court's registry upon payment of a fee. Details are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/

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