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

1.COMMISSIONER: A mature pin oak (the tree) grows near the rear boundary of the Willoughby property where Rasma Howes (the respondent) and Gundars Liepins (her husband) live. In 2020, a new double-storey dwelling was constructed on the adjoining property to their south, close to the tree. Roshantha and Indrica Ranasinghe (the applicants) purchased the adjoining property in February 2021. The Ranasinghes seek orders from the Court for Ms Howes to prune the tree to clear branches near their dwelling, and for the building clearance to be maintained through annual pruning. Ms Howes submitted alternative orders, most of which were for the purpose of correcting omissions and errors that occurred during the construction process, before the Ranasinghes purchased their property. The Court has no jurisdiction to make most of Ms Howes' proposed orders.

2. The hearing took place onsite, allowing me to observe the tree, the applicants' dwelling and both properties. The Ranasinghes were self-represented; Mr Liepins assisted Ms Howes as her agent. Daniel Leonard, a consulting arborist engaged by the Ranasinghes, provided evidence during the hearing. I also rely on my own arboricultural expertise and experience in making this decision, along with material filed by the parties.

Framework for this decision

3. The Ranasinghes 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, other than an order to control some weeds and vines that they concede are unlikely to cause damage or injury.

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

* Whether the applicants have made a reasonable effort to reach agreement with the respondent 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. The parties attended mediation through the Community Justice Centres but were unable to reach agreement. I am satisfied that the Ranasinghes made a reasonable effort to reach agreement with Ms Howes and that the timeframe set down by the Court has allowed for the required notice of the application.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1980b2ab16cda068dfd7c95e)

Disclaimer: Curated by HT Syndication.