Bouveng v Garward

[2018] NSWLEC 1411

Land and Environment Court

New South Wales

Medium Neutral Citation:	Bouveng v Garward [2018] NSWLEC 1411
Hearing dates:	14 June 2018
Date of orders:	10 August 2018
Decision date:	10 August 2018
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	(1)   The application is upheld. (2)   Within 60 days of the date of these orders the respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3), with all appropriate insurances, to remove the tree, leaving a stump no more than 2 metres in height (they can remove more should they wish). (3)   The respondents are to give the applicant 7 days’ notice of these works. (4)   The applicant is to allow all access required for these works during reasonable hours of the day. (5)   The respondents are to arrange access with other neighbours if required.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – risk of damage or injury – adjoining property – fences not located on boundaries – parties given an opportunity to make submissions on property boundaries
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 (NSW)
Cases Cited:	Cavalier v Young [2011] NSWLEC 1080
Category:	Principal judgment
Parties:	Luke Bouveng (Applicant) Rhonda Garward (First Respondent) Brian Garward (Second Respondent)
Representation:	L Bouveng, litigant in person (Applicant) R and B Garward, litigants in person (Respondents)
File Number(s):	2018/34383
Publication restriction:	No

Judgment

Background

1. Large native trees grow in many of the gardens in this residential area of Wyoming, to the north of Gosford. Luke Bouveng (‘the applicant’) and his partner enjoy the leafy environment. They have set up a playground in their garden for their young child.

2. To the Bouvengs’ northwest, Rhonda and Brian Garward (‘the respondents’) have a large garden with mature trees. A gum tree (‘the tree’) near the southeast corner of their property grows at an angle due to overshadowing from an adjacent larger tree. Its entire crown overhangs the applicant’s property and another neighbouring property.

3. Long branches extending over the applicant’s property are in poor condition, some dead, and likely to fall in the near future. If they fell, they would fall onto a relatively high-use area of the applicant’s garden.

4. Mr Bouveng has applied to the Court, pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’), seeking orders for the Garwards’ to remove or cut back the tree.

5. The Garwards’ concede the tree needs cutting back but they hold the view that, as it is only an issue for the applicant, it is up to the applicant to deal with it. They don’t want the tree removed, fearing it will set a precedent for further tree removals.

Framework of the Trees Act

6. If I am satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicants’ property, or injury to any person (s 10(2) of the Trees Act), I have jurisdiction to make appropriate orders (s 9) after considering a range of matters set out at s 12. I bring my own arboricultural expertise and experience to this matter – no expert reports have been provided.

Findings

7. The tree, a Southern Blue Gum (Eucalyptus globulus), is structurally poor and overhangs the applicant’s garden. I am satisfied that the tree is likely to cause damage or injury.

8. According to s 7 of the Trees Act, the tree must be on land that adjoins the applicant’s:

7   An owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land.

9. At the onsite hearing, it was apparent that the fences of the two properties did not meet. Fence locations suggest the southeast corner of the respondents’ property is one or two metres west of the applicant’s northwest corner – that is, at their nearest the properties appear to be 1–2 metres apart, as in the diagram I have drawn below (A = Applicant; R = Respondents).

10. Both parties thought the fences were on their boundaries. It might be concluded that the properties are not adjoining. I reserved my decision.

The properties are adjoining

11. It is common for fences to be located other than on boundary lines. I viewed and copied the following plans from the SIX Maps website ( and the NSW Government’s land zoning maps ( on 15 June 2018 (with my notation added: A = Applicant; R = Respondents).

NSW Government’s land zoning maps ( Maps ( start="12">

Both maps show the properties touching at their corners. The resolution in the SIX Maps’ image is sufficient to satisfy me that the property boundaries meet. A copy of these plans was sent to each party and they were given the opportunity to make further written submissions to the Court outlining any objections and explaining their reasons by 13 July 2018. No further submissions were received. I therefore include the evidence above in making this decision.

Fakes C found at [7] in Cavalier v Young [2011] NSWLEC 1080 that two properties that shared only a corner post were adjoining for the purposes of the Trees Act. I share that view and find these two Wyoming properties are adjoining.

The tree meets all jurisdictional tests in the Trees Act, so I can make orders to deal with the risk of injury it presents.

Matters at s 12

15. I have considered all matters at s 12. The tree grows close to the boundary with its entire canopy over the applicant’s property and another neighbouring property. Its contribution to the local ecosystem is relatively low – more dominant trees provide the healthy tree canopy. The tree is of a species that is not locally indigenous. It contributes little to the landscape character of the broader neighbourhood and to public amenity due to its suppressed form. If hazardous limbs were cut back to the boundary, the remaining parts of the tree would not be viable.

16. I therefore find it is necessary and appropriate to remove the tree back to a stump of no more than 2 metres in height to reduce the risk of injury.

17. Unless circumstances suggest otherwise, it is usual in tree matters for the respondents to pay for works to a tree they own. The applicant has not contributed to the tree’s condition nor to the need for action to be taken. The respondents shall be responsible for arranging and paying for the tree’s removal.

Orders

18. As a result of the foregoing, the orders of the Court are:

1. The application is upheld.

2. Within 60 days of the date of these orders the respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3), with all appropriate insurances, to remove the tree, leaving a stump no more than 2 metres in height (they can remove more should they wish).

3. The respondents are to give the applicant 7 days’ notice of these works.

4. The applicant is to allow all access required for these works during reasonable hours of the day.

5. The respondents are to arrange access with other neighbours if required.

____________________________

D Galwey

Acting Commissioner of the Court

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Decision last updated: 10 August 2018