Australia, June 30 -- New South Wales Land and Environment Court issued text of the following judgement on May 29:

1. Andrew Sallway has applied to the Court seeking orders relating to a large Eucalyptus saligna (Blue Gum) (the tree) on a neighbouring property. The application has been made pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act), under which Mr Sallway requests the Court make orders to remove the tree, and for the respondents, Martina Kapoor and Raan Kapoor, to pay damages for the destruction of a shed, trampoline and retaining wall, and to replace or repair an existing fence.

2. The tree is located on the Kapoor's property at 81 Greenwich Road, Greenwich, approximately 800mm away from the rear boundary fence that divides the Kapoor's and Mr Sallway's property at 24 Carlotta Street, Greenwich. It is a mature tree, estimated to be over 30 metres tall, with a canopy that covers the majority of both the applicant's and respondent's rear gardens, and just extends into other neighbouring gardens. In the course of the hearing, Mr Kapoor confirmed that the respondents support Mr Sallway's request to remove the tree.

3. The Trees Act sets out matters of which the Court must be satisfied before making an order at s 10. Firstly, I must be satisfied that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated. Mr Sallway states that he has requested, via the Kapoor's estate agent, for the tree to be pruned or removed on several occasions since 2020, and that he provided the draft Tree Dispute Claim to the estate agent. This was substantiated by the selection of emails received as Exhibit C, and from this I am satisfied that reasonable effort has been made in accordance with s 10(1)(a).

4. I note also that, pursuant to s 10(1)(b) of the Trees Act, adequate notice has been given to owners of the affected land, and also to Lane Cove Council who are appearing before the Court in this matter as an interested party pursuant to s 13 of the Trees Act.

5. I then must be 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 (Trees Act s 10(2)).

6. Mr Sallway claims that falling branches have damaged two trampolines, a shed, and some lattice above the side boundary fence. Undated photographic evidence from Mr Sallway's application shows damage to both the trampoline and the shed from tree branches. He also claims that the tree growth is damaging the existing rear boundary fence between the two properties, and a timber garden retaining wall that runs adjacent to the rear boundary wall.

7. I accept from the evidence that falling branches from this tree have caused damage to the applicant's property in the past- specifically two trampolines and a garden shed, meeting the final pre-condition to the making of an order under s 10(2) of the Trees Act. Despite this, no evidence was provided that damage has occurred to any retaining wall or fence as a result of this tree, and I do not accept that it is conclusive that growth of this tree is the sole cause of this.

8. Before determining this application under Pt 2 of the Trees Act, I must consider the matters listed at s 12. From this I note that the tree is a large mature Blue Gum that has significance within the local landscape. Eucalyptus saligna is a native species that is endemic to the local area, and is classified as part of a threatened ecological community of Blue Gum High Forest. Lane Cove Council submit that the tree has significance within the LGA in terms of amenity, ecology and biodiversity, and do not support its removal on these grounds.

9. This tree is not otherwise directly located within a native vegetation community, and is positioned within an urban rear garden. It is adjacent to a tall palm on the same property, and although one branch of the tree may be starting to impact the palm, the palm is not the subject of these proceedings and does not justify the removal of this tree.

10. Mr Kapoor submits that the tree has not received any maintenance since 2017. Mr Sallway has provided photographic evidence of large branches that have fallen from this tree into his garden from 2020 onwards, which he submits are solely from the Blue Gum and not from the Red Mahogany within their own property.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1971444fea3773d56abee9c3)

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