Braun v Basser

[2021] NSWLEC 1510

Land and Environment Court

New South Wales

Medium Neutral Citation:

Braun v Basser [2021] NSWLEC 1510

Hearing dates:

30 August 2021

Date of orders:

31 August 2021

Decision date:

31 August 2021

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

See orders at [51]

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Part 2 application – neighbouring tree – application for tree removal and compensation – damage to sewer pipe and fence – risk of damage or injury – tree roots have been severed – whether the tree needs to be removed – whether actions of either party led to the need for tree removal – who should pay for tree removal – whether compensation should be ordered

Legislation Cited:

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

Uniform Civil Procedure Rules 2005, Sch 7

Cases Cited:

Jarrett v Hutchinson [2020] NSWLEC 1365

Joaquim v Adamson [2009] NSWLEC 1312

Yang v Scerri [2007] NSWLEC 592

Texts Cited:

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

Category:

Principal judgment

Parties:

Andre Braun (Applicant)
Eva Basser (Respondent)

Representation:

R Abesamis (Agent) (Applicant)
P Nothman (Agent) (Respondent)

File Number(s):

2021/213023

Publication restriction:

No

Judgment

Background to the application

1. On the elevated land of Vaucluse between harbour and ocean, the tall slender form of a Cook Pine (Araucaria columnaris) (‘the tree’) can be seen from the surrounding landscape, even though it stands deep in the back garden of a long narrow property belonging to Eva Basser (‘the respondent’). Its lower stem sweeps towards the equator, a characteristic of the species, before straightening skywards. The tree is adjacent to Ms Basser’s eastern side boundary, where it pushes against the timber paling fence.

2. Andre Braun (‘the applicant’) owns and lives at the property to Ms Basser’s east. Almost six weeks ago Mr Braun engaged a plumber to clear his sewer pipe. After some initial investigation, the plumbing contractor informed Mr Braun that some large tree roots would need to be cut. The plumbing contractor then cut large tree roots. When Mr Braun saw the cut roots, he contacted Ms Basser and he contacted Waverley Council (‘Council’). A Council representative told Mr Braun that, since the tree was on private land, it did not involve them at this stage.

3. A few days later, Mr Braun engaged arborist Liam Strachan of Abnoba Arbor to inspect the tree and its roots. Mr Strachan recommended in a written report that the tree should be removed due to the risk of damage or injury from the tree falling, now that large roots had been cut near its base.

4. Mr Braun asked Ms Basser to remove the tree, offering to contribute half of the cost its removal. Ms Basser told Mr Braun his plumbing contractor, who had cut the roots, should pay for the tree’s removal. No agreement could be reached.

5. Ms Basser applied to Council for consent to remove the tree. After Council inspected the tree, Council refused consent for its…