Blue v Camelleri

[2007] NSWLEC 138

Land and Environment Court

of New South Wales

CITATION:	Blue v Camelleri [2007] NSWLEC 138
PARTIES:	APPLICANTS N & J Blue RESPONDENTS F & R Camelleri
FILE NUMBER(S):	20086 of 2007
CORAM:	Moore C - Fakes AC
KEY ISSUES:	Trees (Neighbours) :- Application for removal Orders to protect against excavation Precautionary approach
DATES OF HEARING:	16 March 2007
EX TEMPORE JUDGMENT DATE:	16 March 2007
LEGAL REPRESENTATIVES:	APPLICANTS In person RESPONDENTS Mr J MacLennan, solicitor TressCox Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C
FAKES AC

16 March 2007

07/20086 N & J Blue v F & R Camelleri

JUDGMENT

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

The consequence of the Court’s decision in this application is the making of formal orders pursuant to s 9 of the Trees (Disputes Between Neighbours) Act 2006 . These orders are not reproduced as part of this decision but a copy the Court’s orders may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the orders are available on the Court’s web site at

1 THE COMMISSIONERS: This decision concerns an application by Mr and Mrs Blue, who are the proprietors of 46A Rock Farm Avenue, Dundas. They are seeking an order pursuant to s 9 of the Trees (Dispute Between Neighbours) Act 2006 (the Act) for the removal of a mature eucalypt which is located in the front setback of 44 Rock Farm Avenue, the adjacent property to the west.

2 We have had the opportunity of inspecting the tree from the two properties and of hearing informal evidence from the present owners of both 46A and 44 Rock Farm Avenue. We also inspected the interior and front balcony of the residence at 46A Rock Farm Avenue.

3 We have reached a number of conclusions with respect to the state of the tree and the risk which it is said by the residents of 46A Rock Farm Avenue that the tree poses to them and their property.

4 At the outset of this consideration, we note that, for the Court to act with respect to a risk apprehended or a fear held by a person making an application to the Court (whether under this legislation or generally in the Court in Classes 1 and 2 of its jurisdiction), there must be a number of tests satisfied.

5 The first test is that the risk is a risk or fear is one which is reasonably likely to be realised.

6 The second is that the consequences of the realisation of that risk or fear will give rise to consequences to a sufficiently serious extent to require the intervention of the Court.

7 Under the Act, the consequences to be prevented are damage to property or injury to persons. We are satisfied that, for damage to property, the possible consequence must be damage of more than a mere inconvenience or of minor extent.

8 The relevant factual conclusions that we have reached with respect to the tree are as follows:

• first, there is some included bark at the main trunk ijunction some short distance above the ground but that, at the present time, there is an insignificant risk or likelihood of trunk failure of that tree at that point;
• second, there is no sign of disturbance by the roots of the tree to the nearby retaining wall on the driveway of the property at 46A Rock Farm Avenue; and
• third, the canopy of the tree is healthy despite previous unsatisfactory pruning activity taking place on the western side of tree.

9 We note that the residence on 44 Rock Farm Avenue was constructed in 1982 (and that the tree was planted approximately contemporaneously with that) and that the residence at 46A Rock Farm Avenue was constructed in 1993 – some 11 years later.

10 We are of the opinion that the tree has had sufficient time to adapt to the growing environment in which it is presently located.

11 Although the risk of whole trunk failure is presently remote, it cannot be entirely discounted. However, we are satisfied that, at the present time, such a risk does not warrant any intervention to the physical structure of the tree.

12 We are of the view that a prudent approach requires a number of precautionary orders being made as part of the outcome of the proceedings.

13 One of the matters to which we were taken during the course of the inspection concerned excavation which had taken place in reasonably close proximity to the main trunk of the tree for the installation of an additional water cock into the water line serving 44 Rock Farm Avenue.

14 Mr Camilleri, a resident of 44 Rock Farm Avenue, explained that some additional excavation had also taken place, in the past, on both the street and house sides of the tree, along the water pipe line as part of a water leak seeking exercise.

15 We are satisfied that, for precautionary reasons, it would be appropriate to order that no excavation deeper than 100 mm take place within 3 m of the outside of the base of the trunk of the tree without further order of the Court. This element of our determination is designed to provide a protective basis for the tree without doing so in a fashion that would totally preclude further excavation if it were warranted to some reason. However, further excavation would require an application to the Court to permit it to occur.

16 Second, we are of the view that it would be appropriate for the residents of 46A Rock Farm Avenue to have a degree of comfort that there will be some future inspection undertaken, by an appropriately qualified person, of the health of the tree and that they and Parramatta City Council (the Council) be provided with a report to set out the results of such an inspection.

17 Therefore, we propose to order that the owners of 44 Rock Farm Avenue are to organise, not earlier than 21 months from the date of the Court’s order and not later than 24 months from the date of the Court’s order, an inspection and report on the tree by an AQF Level 5 qualified arborist. Such report is to deal with the health and structure of the tree at the time of the inspection.

18 We will also order that a copy of the report is to be made available, within 21 days of its provision to the owners of 44 Rock Farm Avenue, to the owners, at that time, of 46A Rock Farm Avenue.

19 A copy of the report is also to be made available to the Council within 21 days of its provision to the owners of 44 Rock Farm Avenue.

Judy Fakes

Commissioner of the Court Acting Commissioner of the Court