Australia, July 25 -- New South Wales Land and Environment Court issued text of the following judgement on June 25:

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Background

1. COMMISSIONER: Belinda and Jamie Green have applied to the Court for orders relating to a neighbouring tree belonging to The Owners - Strata Plan 16846. They seek the tree's removal or, in the alternative, orders for regular maintenance of the tree, with the respondents to bear the costs of all works.

2. The Greens made a similar application in 2019. I gave orders in those proceedings for the respondents to prune the tree: see Green v The Owners - Strata Plan No 16846 [2019] NSWLEC 1500. The respondents carried out those orders.

3. The hearing took place onsite, allowing me to observe the tree, the applicants' dwelling and both properties. The Greens were self-represented; Mr Sardelich represented the respondents as agent. I rely on my own arboricultural expertise and experience in making this decision, along with material filed by the parties.

Framework for this decision

4. The Greens applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act). The tree is on land adjoining their land. The orders they seek are orders the Court can make at s 9 of the Trees Act.

5. Relevant issues to be determined in these proceedings are:

* Whether the applicants have made a reasonable effort to reach agreement with the respondents and given the required notice of the application: s 10(1)(a) of the Trees Act.

* Whether the Court can be satisfied that the tree 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: s 10(2).

* How consideration of the relevant matters at s 12 of the Trees Act should influence any orders to be made.

Reasonable effort to reach agreement

6. The Greens described the requests they have made to the respondents. They received no response, or were told to prune the tree themselves. This would require further cooperation with the respondents, which was unforthcoming. I am satisfied that the Greens made a reasonable effort to reach agreement with the respondents and that the timeframe set down by the Court has allowed for the required notice of the application.

Whether the tree is likely to cause damage or injury

7. Many features of the situation described in the 2019 judgment have changed little since then, so for brevity, I will not describe them again. An applicant may not repeatedly apply to the Court if circumstances do not change: Hinde v Anderson [2009] NSWLEC 1148. However, the circumstances have changed sufficiently to enable this new application.

8. After the 2019 pruning occurred, as ordered by the Court, branches were clear of the Greens' dwelling and deadwood that might damage their roof had been removed from the tree's crown above their property. Since then, some lower branches have regrown to now be contacting the Greens' dwelling, and deadwood has developed again in the tree's crown above their property. The abrasive action of even small branches rubbing against the dwelling wall is likely to cause cosmetic damage, and where branches rub against the roof they may damage the roofing material. Deadwood falling onto the roof is likely to cause damage, minor though that may be, such as denting the roofing material. Damage is likely to occur within the next 12 months, or 'the near future'. This enlivens the Court's power to make orders at s 10(2) of the Trees Act.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1982a1ba3cb146a8ba822b3f)

Disclaimer: Curated by HT Syndication.