Beilharz v Goodwin

[2021] NSWLEC 1092

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Beilharz v Goodwin [2021] NSWLEC 1092

Hearing dates:

30 October 2020

Date of orders:

25 February 2021

Decision date:

25 February 2021

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

See orders at [40]

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to property – retaining wall – evidentiary burden lies with the applicant – Court cannot be satisfied that trees have caused the damage – other possible causes of damage – fence damage is minor – three small trees to be removed to prevent further damage – no orders for removing two mature remnant trees – no orders for compensation – risk of injury – orders for pruning

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006 (NSW), Pt 2, ss 7, 9, 10, 12

Cases Cited:

Black v Johnson (No 2) [2007] NSWLEC 513

Riggio v The Estate of the late Phyllis Annette Lockard [2011] NSWLEC 1292

Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29

Texts Cited:

Australian Standard AS 4373-2007 ‘Pruning of amenity trees’

Land and Environment Court, ‘COVID-19 Pandemic Arrangements Policy’ (July 2020)

Safe Work Australia, ‘Guide to managing risks of tree trimming and removal work’ (July 2016)

Category:

Principal judgment

Parties:

Robert Beilharz (Applicant)
Lynn Goodwin (Respondent)

Representation:

Counsel
R Beilharz (Litigant in Person) (Applicant)
B Phillips (Solicitor) (Respondent)

Solicitors
Brian Phillips Legal (Respondent)

File Number(s):

2020/171737

Publication restriction:

No

Judgment

Background to the application

1. Robert Beilharz (‘the applicant’) has lived at his Gymea property in Sutherland Shire Council (‘Council’) for 27 years. After noticing cracks in a brick retaining wall on the common boundary shared with Lynn Goodwin (‘the respondent’), he asked her to remove two mature gum trees growing on her land. Correspondence and discussions followed over some time, but when he was unable to reach the outcome he wanted Mr Beilharz applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’) seeking orders for:

• Removal of two large gum trees at the respondent’s cost;

• Removal of several yucca plants;

• The respondent to pay 90% of the cost of replacing the retaining wall and 70% of the cost of repairing brush fencing atop the retaining wall;

• Costs of the application.

Framework for this decision

2. The Court’s ability to make orders is limited, at s 10 of the Trees Act.

10 Matters of which Court must be satisfied before making an order

(1) The Court must not make an order under this Part unless it is satisfied:

(a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, and

(b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 8.

(2) The Court must not make an order under this Part unless it is satisfied that the tree concerned:

(a) has caused, is causing, or…