Land and Environment Court New South Wales

• Medium Neutral Citation: Cheriachan v Williams [2014] NSWLEC 1210
• Hearing dates: 13 October 2014
• Decision date: 13 October 2014
• Jurisdiction: Class 2
• Before: Galwey AC

Decision

The application is upheld. See orders at paragraph 5.

• Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage; orders for tree removal.
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Category: Principal judgment
• Parties: Jayant Cheriachan (Applicant); Lindy Williams (Respondent)
• Representation: Jayant Cheriachan, litigant in person (Applicant); Lindy Williams, litigant in person (Respondent)
• File Number(s): 20514 of 2014

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1 This application, made under Part 2 of the Trees (Disputes Between Neighbours) Act 2006 ("the Trees Act"), concerns a large London Plane tree in a small back garden in the inner Sydney suburb of Redfern. The garden is at the rear of a terrace house, one of a row of houses approximately 20 years old. The tree, which was apparently planted when the houses were constructed, is one of a row of trees planted in every second garden along the row of houses. The tree was planted against the side boundary. It is now more than 20 metres tall with a stem diameter of more than 600 millimetres. The diameter of its canopy is more than 15 metres. The garden is less than 5 metres wide.

2 It was apparent through observations at the onsite hearing that the tree has caused damage to the applicant's property. As the stem of the tree has grown its trunk has pushed against the side boundary fence and the carport structure on the applicant's property. Roots have lifted brick paving in the applicant's rear garden. The damage is significant enough to cause trip hazards in the paving and for the carport to require repair. Accordingly, the Court has jurisdiction to make orders under the Trees Act.

3 There is no simple solution that would allow the tree to be retained while preventing further damage. Large trees require large root systems. Installing root barriers to prevent further root damage would require the removal of so much of the tree's root system that it would not remain viable. I find that the only appropriate outcome to prevent further damage is for the tree to be removed.

4 The canopy significantly overhangs the applicant's property. The applicant will be required to allow access for efficient removal of the tree. The canopy also overhangs, to a lesser extent, the neighbouring property to the north of the respondent's. Although access to that property may not be required, notice should be given to the occupier as a matter of courtesy.

5 Therefore, the orders of the court are:

(1) The application is upheld.

(2) Within 90 days of the date of these orders the respondent is to engage and pay for a suitably qualified arborist (minimum AQF level 3) to remove the London Plane tree to ground level and to grind sufficient of the stump to allow the fence to be reconstructed on the boundary line. These works must be done in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(3) The respondent is to give at least 7 days' notice of the works to the applicant as well as to her neighbour to her north.

(4) During reasonable hours, the applicant is to allow all access required for the tree to be removed.

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D Galwey

Acting Commissioner of the Court

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Decision last updated: 14 October 2014