Australia, Aug. 21 -- New South Wales Land and Environment Court issued text of the following judgement on July 21:

1. COMMISSIONER: Linda Gray and Michael and Robyn Hamilton are neighbours in Springwood, in the Blue Mountains. Ms Gray has applied to the Court seeking orders for the Hamiltons to maintain trees growing on their property along the common boundary.

2. The hearing took place onsite, allowing me to observe the trees and both properties. Mr Dewell represented Ms Gray; the Hamiltons were self-represented. I rely on my own arboricultural expertise and experience in making this decision, along with material filed by the parties. Ms Gray provided a report by Chantelle Brackenridge Hughes, arborist of Treeism Arboricultural Services; the Hamiltons provided a report by Tom Hare, arborist of Truth About Trees.

Framework for this decision

3. Ms Gray applied to the Court pursuant to both s 7 (Pt 2) and s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (the Trees Act). She claims that the Hamiltons' trees are likely to damage her property and that their bamboo hedge obstructs sunlight to her dwelling windows. The trees are on land adjoining her land. The orders she seek are orders the Court can make at ss 9 and 14D 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 (ss 10(1)(a) and 14E(1)(a) of the Trees Act).

* Whether the Court can be satisfied that the trees have caused, are causing, or are likely in the near future to cause, damage to the applicant's property, or are 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 under Pt 2.

* Whether trees are severely obstructing sunlight to windows of Ms Gray's dwelling (s 14E(2)).

* How consideration of the relevant matters at s 14F of the Trees Act should influence any orders to be made under Pt 2A.

Reasonable effort to reach agreement

5. Correspondence in Ms Gray's application shows that the parties discussed the trees and their maintenance over a period but were unable to reach agreement on a suitable outcome. I am satisfied that Ms Gray made a reasonable effort to reach agreement with the Hamiltons and that the timeframe set down by the Court has allowed for the required notice of the application.

Trees in the application

6. Ms Gray applied for orders for the following trees along the common boundary (from nearest the front boundary):

* A grevillea (Grevillea sp.) approximately 4 metres tall

* A bamboo hedge (possibly slender weavers) approximately 5 metres tall

* A camellia (Camellia sp.) hedge less than 2 metres tall

* A flame tree (Brachychiton acerifolius) approximately 15 metres tall

* A bottlebrush (Callistemon sp.) approximately 4 metres tall

* A jacaranda (Jacaranda mimosifolia) approximately14 metres tall.

Whether the trees are likely to cause damage or injury (Pt 2 application) Ms Gray claims that the Hamiltons' trees may damage her property or cause injury in several ways.

Bushfire risk

8. Ms Gray submitted that trees planted so close to her dwelling increase the risk to her property during bushfires. The Hamiltons submitted that their trees are high moisture-holding species and unlikely to increase bushfire risk. They pointed to other elements of Ms Gray's property that they thought posed a greater risk during bushfires.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/198401d8282bdf9310be800c)

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