Australia, July 14 -- New South Wales Land and Environment Court issued text of the following judgement on June 13:

1. COMMISSIONER: Justin Bradshaw (the applicant) and Oliver Clive Roberts (the respondent) share a side boundary between their neighbouring properties in Beacon Hill. Both properties were located on a fairly steep slope that ascended towards the south, with north facing dwellings positioned near the centre of the land parcels. A large Blackbutt (Eucalyptus pilularis) (the tree) was growing slightly west of centre on an elevated lawn covered terrace towards the back of Mr Roberts' rear yard, which terminated at a cliff face.

2. The tree was about 20 metres (m) tall, with a fairly uniform canopy that spread approximately 16m. The tree's trunk diameter at breast height was measured as 1.12m. Most of the main branches were distinctly ascending, as is typical of the species. In an arborist report (commissioned in December 2023 by Mrs Tobler, Mr Robert's east side neighbour), Hugh Millington (an Australian Qualification Framework (AQF) level 5 arborist) noted the tree had 'Good Health' and 'Good Structure' and provided 'Very High Amenity Value'.

3. After purchasing their property in 2016, the Bradshaw's demolished the existing house and constructed a new three-storey dwelling on the sloping land. Relative to its predecessor, the new dwelling occupied a much larger footprint, which brought a bedroom and the roof's southeastern corner under the tree's canopy. The upper level of the Bradshaw's dwelling had been designed to integrate with the existing backyard level, where an inground swimming pool was retained. The level of the paved pool surrounds was also similar to the surface level around Mr Roberts' tree.

4. Before or upon occupying the new dwelling in 2019, Mr Bradshaw contracted arborists to prune branches near the pool back to the common boundary. Nonetheless, leaves and other debris which fell and blew onto the dwelling roof and gutters blocked mesh filters in a water tank in the dwelling's lower level and two flooding incidents resulted.

5. In May 2020, a dead branch about 4.1m long fell and broke a ceramic pot near the common boundary in the Bradshaw's rear yard. Due to concern about further damage and risk of injury to his family and pets, Mr Bradshaw sought Mr Roberts' support for a tree removal application to Northern Beaches Council (Council). Mr Bradshaw contended that surrounding neighbours supported the removal but would not contribute financially so the matter was set aside.

6. In September 2020, ostensibly in response to the ceramic pot breakage, Mr Bradshaw again pruned branches along the common boundary, but without Mr Roberts' permission. Mr Bradshaw contended the debris from the tree caused damage to his pool cover, an unreasonable maintenance burden, and was a nuisance for his family.

7. Mr Bradshaw claimed that tree removal discussions resumed in late 2023 due to "increased concern from surrounding neighbours". Mr Roberts said the initial approach came from Mr Tobler, his east side neighbour, notwithstanding the tree's canopy did not appear to encroach on the Tobler's property. Mr Roberts told Mr Tobler he had made an unsuccessful tree removal application in 1996. Based on "that experience, the present healthy condition of the tree, and my subsequent detailed reading of Council's stipulated conditions for permissible true removal", Mr Roberts advised Mr Tobler, he would "be surprised if an arborist could find defects in the tree that would justify its removal".

8. Nonetheless, to address the Tobler's concerns, Mr Roberts offered to allow access to an arborist should the Tobler's wish to commission one. Further, if the arborist report recommended removal of the tree, Mr Roberts offered to make a tree removal application to Council and pay Council's application fee. Mr Roberts said he confirmed these conditions in an email to Mrs Tobler soon after the conversation with Mr Tobler and before she commissioned an arborist.

9. Mr Millington's arborist report (the arborist report) for Mrs Tobler recommended regular maintenance works rather than removal. Nonetheless, Mr Bradshaw "believed it worth submitting an application for removal to Council". The applicant lodged a removal application with Council in June 2024, accompanied by a letter of support from Mr Roberts. On 1 July 2024, permission was refused for removal, but approval was granted for pruning 20% of live foliage in addition to removal of dead wood. Mr Bradshaw wanted to complete the approved tree pruning, then lodge an appeal with Council against the removal refusal.

10. Mr Bradshaw contacted Council seeking a review of the decision but was told that no internal Council review process was available. He was advised his options were to appeal the removal refusal decision to the NSW Land and Environment Court (LEC) within three months, or to submit a new tree removal application to Council, with a report from an AQF level 5 arborist recommending removal and explaining why alternatives to removal were not feasible.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/19762713a554239fbd45698a)

Disclaimer: Curated by HT Syndication.