Land and Environment Court New South Wales

• Medium Neutral Citation: Ghazal v Vella (No. 2) [2011] NSWLEC 1340
• Hearing dates: 29 November 2011
• Decision date: 29 November 2011
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Notice of Motion dismissed

• Catchwords: PRACTICE AND PROCEDURE; notice of motion to vary Court orders to enable the removal of a tree; the powers of the Court and the powers of a local council
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Ghazal v Vella [2011] NSWLEC 1105; Adamski v Betty [2007] NSWLEC 200; Langtip v Granstrom [2008] NSWLEC 44; Robson v Leischke [2008] NSWLEC 152
• Category: Procedural and other rulings
• Parties: Mr W Ghazal (applicant); Mr M Vella (first respondent); Ms M Vella (second respondent)
• Representation: Respondent: Ms M Vella (litigant in person)
• File Number(s): 20112 of 2011

Judgment

1 COMMISSIONER: The respondents, by notice of motion, seek leave to vary orders made in the matter of Ghazal v Vella [2011] NSWLEC 1105 heard and determined on 12 May 2011.

2 The matter related to an application pursuant to s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) made by Mr Ghazal against Margaret and Michael Vella, the owners of a Bunya Pine growing at the rear of their property. The applicant sought Court orders for either the pruning of the tree or the removal of cones in order to prevent injury as a result of being struck by a falling cone. The applicant did not seek the removal of the tree.

3 The matter was heard on site. The Vellas engaged an arborist to prepare a report. On the basis of this report, the respondents' position was that there was nothing they should do to manage the risk posed by falling cones.

4 After assessing the tree, the site, hearing from the parties and reviewing the report I determined that an annual inspection and, if necessary, de-coning of the tree was appropriate in the circumstances. I rejected the respondents' position that a 'do nothing' approach was reasonable. My reasons for making the orders are set out in the judgment. Similar orders were made in the matters of Adamski v Betty [2007] NSWLEC 200 and Langtip v Granstrom [2008] NSWLEC 44. The orders at [23] are as follows:

23 Therefore as a result of the forgoing, the Orders of the Court are:

(1) The application is upheld.

(2) Between 1 November and 20 December each year, the tree shall be thoroughly inspected for the presence of fruit by an arborist with a minimum AQF level 3 qualification and appropriate insurance.

(3) The first inspection is to commence in 2011 and then annually within the time period specified in order 1.

(4) Any fruit 100mm or more in diameter in any dimension is to be removed from all parts of the tree that overhang the applicant's property to a distance within the fence line into the respondent's property of 2m. The de-coning is to occur at the same time as the inspection.

(5) The cost of the inspection and any de-coning is to be borne by the respondents.

(6) The applicant is to provide all reasonable access for the inspection and any resulting de-coning to be done safely and efficiently.

(7) The respondents are to give the applicant at least 2 working days notice of the inspection.

5 The Notice of Motion before the Court today seeks Orders 1-7 to be varied on the basis that compliance with the orders has caused considerable stress and financial hardship on the Vellas. Ms Vella contends that the cost of compliance with the orders will amount to $1000 per attendance. However, to date, no work has been carried out on the tree. She now seeks orders to remove the tree.

6 Ms Vella made an application to Blacktown City Council under their Tree Preservation Order for the removal of the tree. The advice from Mr Stephen Lloyd, the Open Space Policy & Tree Management Coordinator for the council was that he could not consent to the removal of the tree because it would contravene the orders of the Court.

7 In my view, this is a misinterpretation of the roles of the Court in administering applications made under the Trees Act and a council administering applications under a Tree Preservation Order (TPO). The Trees Act was enacted to provide a relatively simple means of dealing with disputes between neighbours as a result of trees. Applications are made by a party against the owner of a tree on an adjoining property. These are civil matters that prior to the Act would have required someone to take an action in nuisance or negligence...an expensive and time consuming process, and a process more limited in scope than that of the current Trees Act. Similarly, many local council Tree Preservation Orders do not allow one neighbour to do something to their neighbour's tree. The Chief Judge in Robson and Leischke [2008] NSWLEC 152 provides a commentary on the evolution of the Act and the difficulties in obtaining relief prior to its enactment. However, in essence, this is coercive legislation enabling orders to be made to require a tree owner to take specific action.

8 In contrast, a TPO is permissive - the council is a consent authority in its own right; i.e. a tree owner applies to council for permission to do something to their own tree. The fact that a Court order has been made for pruning of a tree, be it of dead wood or fruit or roots, does not prevent a council, under their own provisions, from permitting something else to be done to the tree. In the extreme, it would be ridiculous to think that a tree with a pruning order on it, which was subsequently damaged/ diseased or in some other way affected, could not be approved for removal on the basis of an existing court order. Trees are dynamic living structures growing in complex environments; circumstances change. The Trees Act does not state that a council is unable to make subsequent decisions under its own powers.

9 However, in considering the Notice of Motion, the applicants have now determined it would be preferable to remove the tree. The remaking of Orders is not a matter to be taken lightly. Section 9 of the Act gives the Court the power to make any orders it sees fit to remedy, restrain, or prevent, damage to property or injury to persons. In this matter there is no new evidence before me to warrant a variation to the Court's orders. The figures for the work quoted by Ms Vella seem inflated. However, it would seem to me that there is no impediment, as a result of this decision, for the Council as a consent authority in its own right to make its own independent decision in relation to the removal of the tree.

10 Therefore as a consequence, the Notice of Motion is dismissed.

________________________

J Fakes

Commissioner of the Court

Decision last updated: 29 November 2011