Land and Environment Court New South Wales

• Medium Neutral Citation: Carnus v Chiaraglio (No 2) [2011] NSWLEC 1208
• Hearing dates: 18 April and 16 June2011
• Decision date: 16 June 2011
• Jurisdiction: Class 2
• Before: Moore SC, Galwey AC

Decision

(1)The respondent is to remove the Lemon-scented Gum within 90 days of the date of these orders;

(2)The removal is to be to a height on the main trunk of the tree no greater than 2 m above the ground and such stump of the tree as remains is to be poisoned to preclude epicormic growth occurring;

(3)The roots of the tree that protrude into the applicant's property and that are causing damage to the applicant's pavers at the upper rear area of her property and to the garden beds adjacent to the boundary between the applicant's and the respondent's property are to be removed by the respondent to the boundary between the properties with that removal also to occur within 90 days;

(4)(1) and (2) are to be undertaken at the expense of the respondent;

(5)For the purposes of giving effect to those orders, the applicant and the owners of each of the other four properties involved (being 85, 87 and 91 Shepherd Street and 1 Shepherd Lane) are directed to provide access to the respondent with such access to be on reasonable notice, at a reasonable hour of the day and with the person whose property is to be accessed to have the opportunity to supervise that access should they so wish;

(6)The applicant is directed to serve, no later than 30 June, a copy of these orders on the owners of 85, 87 and 91 Shepherd Street and 1 Shepherd Lane;

(7)The respondent is directed, not later than 48 hours prior to any work being undertaken to effect removal of the tree, to serve, by pre-paid post, on the applicant and on the owners of 85, 87 and 91 Shepherd Street and 1 Shepherd Lane notice of such work and notice of the time when removal of the tree is proposed to be undertaken;

(8)Removal of the tree is to be undertaken by an AQF level III arborist with appropriate WorkCover insurances;

(9)After the tree has been removed and the roots on the applicant's property removed in conformity with these orders, if the applicant completes the reinstatement of the garden beds that have been affected by the roots of the tree and causes the relaying of the pavers of the upper rear portion of her rear yard that have been affected by the tree and serves a receipted account for the completion of these works upon the legal representative of the respondent, the respondent is to reimburse the applicant for those costs within 28 days of the date of service of that receipted account;

(10)Any costs associated with the removal and reinstatement of the fence (that divides the applicant's and the respondent's properties) to enable these orders to be effected is to be at the cost to the respondent; and

(11)Upon service of a further receipted account on the respondent's legal representative [at the time of presentation of the receipted account pursuant to (9) for reconstruction of the applicant's garden beds] for replacement plantings within those garden beds, the respondent is to reimburse the applicant for the cost of those plantings to a maximum of $100 within the same period as provided for in (9).

• Catchwords: Removal of tree
• Category: Principal judgment
• Parties: L Carnus (Applicant); J Chiararaglio (Respondent)
• Representation: Counsel; Applicant in person; Mr M Seymour (Respondent); Solicitors; Gadens Lawyers (Respondent)
• File Number(s): 20920 of 2010
• Publication restriction: None

EXTEMORE Judgment

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

1 In these proceedings, we gave a decision on 27 May setting out the bases for apportionment of costs by making findings with respect to damage to the applicant's property caused by the tree. The tree, a Lemon-scented Gum ( Corymbia citriodora ), has an extensive canopy extending well beyond the applicant's and the respondent's properties - extending over four further properties

2 It was not earlier possible nor appropriate to consider what orders, if any, should be made with respect to the tree without providing the owners of all four of those properties with the opportunity to be heard - first, concerning any orders that they might seek or oppose with respect to interference with or removal of the tree and, second, any propositions that they might wish to put with respect to access to their property if we were minded to order interference with or removal of the tree in a fashion that required access to their property to give effect to such orders.

3 We have been satisfied on the basis of a bundle of affidavits tendered today that all four owners of the potentially affected properties have been served with notice of this resumed hearing. One of them has been represented, informally, by an agent and has provided a letter indicating that she supports removal of the tree and has no objection to access to her property for the purposes of that removal. The other three owners who we are satisfied have been served have not taken part in these proceedings.

4 As a consequence of our inspection on the last occasion and there being no submissions to the contrary, we are satisfied that, unfortunately, this magnificent specimen of Lemon-scented Gum is located in an entirely inappropriate position and, regretfully, we have concluded that it must be removed because of the damage caused by it.

5 On the last occasion, we indicated that, if this were to be the case, the cost would fall on the respondent who would be made responsible for the removal of the tree.

6 Having reached those conclusions, we now make the following final orders to dispose of the proceedings (with these orders being in supplementation of the orders given on 27 May):

(1) The respondent is to remove the Lemon-scented Gum within 90 days of the date of these orders;

(2) The removal is to be to a height on the main trunk of the tree no greater than 2 m above the ground and such stump of the tree as remains is to be poisoned to preclude epicormic growth occurring;

(3) The roots of the tree that protrude into the applicant's property and that are causing damage to the applicant's pavers at the upper rear area of her property and to the garden beds adjacent to the boundary between the applicant's and the respondent's property are to be removed by the respondent to the boundary between the properties with that removal also to occur within 90 days;

(4) (1) and (2) are to be undertaken at the expense of the respondent;

(5) For the purposes of giving effect to those orders, the applicant and the owners of each of the other four properties involved (being 85, 87 and 91 Shepherd Street and 1 Shepherd Lane) are directed to provide access to the respondent with such access to be on reasonable notice, at a reasonable hour of the day and with the person whose property is to be accessed to have the opportunity to supervise that access should they so wish;

(6) The applicant is directed to serve, no later than 30 June, a copy of these orders on the owners of 85, 87 and 91 Shepherd Street and 1 Shepherd Lane;

(7) The respondent is directed, not later than 48 hours prior to any work being undertaken to effect removal of the tree, to serve, by pre-paid post, on the applicant and on the owners of 85, 87 and 91 Shepherd Street and 1 Shepherd Lane notice of such work and notice of the time when removal of the tree is proposed to be undertaken;

(8) Removal of the tree is to be undertaken by an AQF level III arborist with appropriate WorkCover insurances;

(9) After the tree has been removed and the roots on the applicant's property removed in conformity with these orders, if the applicant completes the reinstatement of the garden beds that have been affected by the roots of the tree and causes the relaying of the pavers of the upper rear portion of her rear yard that have been affected by the tree and serves a receipted account for the completion of these works upon the legal representative of the respondent, the respondent is to reimburse the applicant for those costs within 28 days of the date of service of that receipted account;

(10) Any costs associated with the removal and reinstatement of the fence (that divides the applicant's and the respondent's properties) to enable these orders to be effected is to be at the cost to the respondent; and

(11) Upon service of a further receipted account on the respondent's legal representative [at the time of presentation of the receipted account pursuant to (9) for reconstruction of the applicant's garden beds] for replacement plantings within those garden beds, the respondent is to reimburse the applicant for the cost of those plantings to a maximum of $100 within the same period as provided for in (9).

Tim Moore

Senior Commissioner

for

David Galwey

Acting Commissioner of the Court

Decision last updated: 21 July 2011