Australia, July 23 -- New South Wales Land and Environment Court issued text of the following judgement on June 23:

1. COMMISSIONER: In March this year, a tree fell over on the Wahroonga property belonging to Check Keong Ho and Yvonne Kit Yee Ho. Their neighbours, Mark Roberts and Yvonne Roberts, then became concerned that another large tree on the Hos' property might fall into their own property. When their efforts to get the Hos to remove the tree were unsuccessful, Mark Roberts applied to the Court seeking orders for the tree to be removed.

2. The hearing took place onsite, allowing me to observe the tree and both properties. The applicant was self-represented; the respondents did not attend the hearing, but their daughter, Jean Ho, represented them as their agent. I rely on my own arboricultural expertise and experience in making this decision.

Framework for this decision

3. Mr Roberts 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 the applicant's land. The orders he seeks are orders the Court can make at s 9 of the Trees Act.

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

* Whether the applicant has 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

5. Mr Roberts has written to the Hos but they refuse to take any action. I am satisfied that he has made a reasonable effort to reach agreement with the Hos 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

6. The parties have filed no arboricultural evidence. Mr Roberts submits that:

* the tree grows in a similar environment to the tree that fell over on the Hos' property in March;

* the tree leans toward his property and overhangs his property;

* winds blow predominantly from the east, further increasing the likelihood that the tree will fall onto their property and hit their dwelling;

* the tree is likely to injure family members who spend time in the garden.

7. The Hos submit that:

* an arborist inspects trees on their property, including the tree that is the subject of this application;

* the tree is healthy and unlikely to fall;

* all trees are different, so one cannot assume that this tree will fall just because another tree fell;

* Mr Roberts has presented no evidence of the predominant wind direction;

* Mr Roberts' claim is not supported by any arboricultural evidence.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/19810aa20b2e24fd6d18e306)

Disclaimer: Curated by HT Syndication.