Land and Environment Court New South Wales

• Medium Neutral Citation: Spence & Anor v Richardson [2011] NSWLEC 1221
• Hearing dates: 11 July 2011
• Decision date: 02 August 2011
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application upheld

• Catchwords: TREES [NEIGHBOURS] Damage to property
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Category: Principal judgment
• Parties: Ms F Spence (Applicant); Ms D Morgan (Applicant); Ms J Richardson (Respondent)
• Representation: Ms F Spence (Applicant in person)
• File Number(s): 20241 of 2011

Judgment

1 This is an application pursuant to s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owners of a property in Lewisham against the owner of a tree growing on an adjoining property.

2 The applicants are seeking Court orders for the removal of a large Camphor Laurel tree on the basis that it has caused damage to their driveway, fence and front gate. They are not seeking compensation if the tree is removed, however, if only roots are to be removed, they seek compensation for the replacement of the driveway and repair of the fence.

3 I note from the file that the respondent did not attend the directions hearing on 17 May 2011. The on site hearing occurred on 7 July 2011, only the first applicant was in attendance. Direction 4 requires the applicant in these matters to file with the Court proof of service of the Directions on the respondent and the local council. Whilst there is proof of service of the directions on the council, there was no proof that the respondent had been served although the applicant stated that this had occurred.

4 Despite the absence of the respondent, the tree was inspected from the applicants' property and from the street. It is a very large and mature Camphor Laurel growing in the north-western corner of the respondent's property. It is growing through, and has partly engulfed, the respondent's palisade fence. A large root is visible under the timber dividing fence between the parties' properties. There is extensive lifting and cracking of the front portion of the applicants' driveway. It is also clear that the front gates no longer open to their full extent due to the displacement of a supporting pillar.

5 Another section of driveway to the southeast was noted to be cracked and displaced. I was informed by the first applicant that a nearby large Pepper Tree had been removed from the respondent's property.

6 At the on-site hearing I gave a preliminary finding of the orders I was minded to make, being the removal of the tree. However, given the lack of proof of service and the likely expense involved of removing such a large tree, I considered it to be procedurally unfair to not give the respondent an opportunity to present her case.

7 On 14 July 2011, Registrar Gray wrote to the applicants and advised them of their failure to comply fully with Direction 4. A Notice of Listing and a further direction was given to the applicants to comply with Direction 4 by filing an affidavit demonstrating the service of the directions on the respondent by 4.30 pm on 20 May 2011 and to provide a copy of the notice to the respondent. The matter was re-listed for the making of final orders on 1 August 2011. The respondent was also advised of the Notice of Listing.

8 On 1 August only the first applicant attended the hearing. There was some confusion as to what proof of service was required for the serving of the original directions. The applicant subsequently filed a statutory declaration as proof of service. I am satisfied that the respondent had ample notice of the first directions hearing and the second hearing date but chose not to attend, I am therefore satisfied that the process has been procedurally fair and I can make the orders I intended to make at the first hearing.

9 Returning to the tree and the damage, under s 10(2) of the Act, the Court must not make an order unless it is 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. In this matter at least two of the tests under s 10(2) are met and the Court can make an order under Part 2.

10 Section 9 of the Act enables the Court to make any order it thinks fit to remedy, restrain or prevent damage to property. Given the proximity of the tree and its structural roots to the driveway, the size of the root that is visible, and the likely size of other nearby roots, I consider that root pruning and or the installation of a root barrier to effect replacement of the driveway would be inappropriate in the circumstances. The risk of structural damage and potential destabilisation of the tree is too great. Therefore, while the tree certainly contributes to the amenity of the respondent's property and to the street, regrettably, the tree is to be removed.

11 Therefore as a consequence of the forgoing, the Orders of the Court are:

(1) The application to remove the tree is upheld.

(2) The respondent is to engage and pay for an AQF level 3 arborist to remove the tree to ground level and to poison the stump.

(3) The stump and roots adjacent to the dividing fence are to be ground to a minimum depth of 300mm for a minimum distance of 500mm from the fence and for the full extent of the adjoining section of damaged driveway.

(4) The work is to be completed within 60 days of the date of these orders.

(5) The work is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.

J Fakes

Commissioner of the Court

Decision last updated: 02 August 2011