Brown & anor v Weaver

[2007] NSWLEC 738

Land and Environment Court

of New South Wales

CITATION:	Brown & anor v Weaver [2007] NSWLEC 738
PARTIES:	APPLICANTS Graham & Noelene Brown RESPONDENT Jean Weaver
FILE NUMBER(S):	20728 of 2007
CORAM:	Moore C - Thyer AC
KEY ISSUES:	Trees (Neighbours) - Neighbour Application :- Location of a tree on a boundary Consideration of "situated ... principally" in s 4(3)
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
DATES OF HEARING:	22 October 2007
EX TEMPORE JUDGMENT DATE:	22 October 2007
LEGAL REPRESENTATIVES:	APPLICANTS Mr K Neville, solicitor Bradfield Anderson Solicitors RESPONDENT In person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C
THYER AC

22 October 2007

07/20728 Graham & Noelene Brown v Jean Weaver

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 COMMISSIONERS: This an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by Mr and Ms Brown of 53A Hewitt Avenue, Wahroonga, concerning a Cypress tree (the tree) with multiple trunks from a common base located on the adjacent property to the north at 51 Hewitt Avenue. Ms Weaver owns this property.

2 We have considered the present state of the tree which has had three substantial trunk elements removed from it following wind damage and cracking in July 2007. We have heard evidence from Mr Dorfer, an arborist on behalf of the Browns, and from Mr Gideon, an officer of Hornsby Council.

3 We are satisfied that the removal of two of the major branches which were removed as noted in (2) was prudent to have been undertaken at the time that it was undertaken. Contractors known as The Tree Masters NSW Pty Limited (Tree Masters), who were engaged by Mr and Ms Brown, removed these branches.

4 We do not consider, from the location of the boundary between the properties, that there would have been any legal basis for the removal of the third of those branches as carried out – which branch was situated, at its junction, entirely on Ms Weaver's property. For lawful removal, this would have necessitated consent from her for access and for removal at the point where removal was undertaken. No such consent was given.

5 The first matter to be considered is the question of the location of the tree. From time to time, applications are made under the Act concerning trees which are located on the boundary between two properties. The Act, in s 7, permits a person to make an application about a tree on land adjoining their own land. The Act, in s 4(3), also says:

For the purposes of this Act, a tree is situated on land if the tree is situated wholly or principally on the land.

6 For a tree such as this, for the purposes of determining where it is situated “principally”, the location of the base of the trunk at ground level is to be measured in relation to the property boundary. The canopy and root system of this type of tree is not a relevant matter in this consideration.

7 We are satisfied, in this case, that this tree has more than 50% of the base of its trunk at ground level located on Ms Weaver’s property. As a consequence, we consider that this tree is situated .... principally on her property for the purposes of s 4(3) of the Act.

8 We have reached that conclusion after inspecting a string line between two survey pegs on the boundary between the two properties.

9 We are satisfied, based on evidence given to us by Mr Dorfer and Mr Gideon and, in addition, from our own inspection of the tree, that it is prudent for the totality of the tree to be removed as it is likely to fail, further, in the near future, and damage the Browns’ property [the third test in s 10(2)(a) of the Act].

10 Indeed, given the path the proceedings have followed and the removal which has already taken place of three branches, Ms Weaver also acknowledges the reasonableness and desirability of this complete removal.

11 Noting, as we do, that there is agreement between the parties for the replacement of the relevant portion of the boundary fence between the two properties (being replacement of a fencing element going significantly beyond any element we would be capable of dealing with in this jurisdiction as it concerns dilapidated portions of the fence unaffected by the tree), the questions which remain for us to consider are the apportionment of costs between the parties and who should undertake the work.

12 As to the second of those points, each of the parties has a quotation from a tree removal company. The quotation which has been obtained by Ms Weaver is modestly cheaper than that which has been obtained by the Browns.

13 In addition, the quotation which has been obtained by the Browns is a quotation provided by Tree Masters, the firm which undertook the work in July 2007 discussed earlier. As Tree Masters is not present and therefore is unable to defend or comment upon the professionalism or otherwise of its earlier activities, it is inappropriate for us to deal with that in detail. It is sufficient to say there are aspects of the removal work which has already been undertaken which cause us to have concerns as to whether Tree Masters should be permitted to undertake the work now proposed.

14 As a consequence of that concern and of the cheaper quotation from Bolans Tree Service Pty Limited (Bolans) which has been provided by Ms Weaver we are satisfied that Bolans should undertake the work.

15 However, we note, from the terms of Bolans’ quotation, that there is no warranty contained on that document which indicates that Bolans has appropriate insurances from the WorkCover Authority. The orders will therefore provide that no work is permitted to be undertaken on the Browns’ property until Bolans provides proof of its appropriate insurances to the Browns or their legal representatives.

16 We note that the quotation provided by Bolans is for $1980. Given the decision we have reached concerning it, we propose to cap the liability of the Browns for contributing to the costs on the basis of that quotation representing an upper limit of the cost of removal of the tree.

17 We are satisfied that the work undertaken in July has had the effect of contributing to the opening of the canopy. We have also had no evidence as to why the third of the branches was removed – this branch not being closely related to the cracked area in the trunk. As a consequence, we are not satisfied that the totality of the removal as undertaken in July was necessary for the purposes of immediate safety responses.

18 We are also satisfied that the canopy has opened to a modest extent, at least, as a consequence the work in July relating to the cracked area in the trunk and the additional branch removal. This was confirmed, to some extent, by the evidence of Mr Dorfer in this regard.

19 As a consequence, we consider that it would be appropriate to require the parties to share equally cost of the removal of the tree.

20 We consider it appropriate, as the majority of the work is to be undertaken on Ms Weaver’s property and it is to be undertaken by the contractor selected by her, she should have the responsibility to doing so. Half the sum of $1980 (being $990) will be ordered to be reimbursed to her by the Browns on the production to the Browns of a receipted invoice for the carrying out of the work. That payment is to be made by the Browns within 28 days of provision to them of that receipted invoice.

21 We are satisfied that the work itself should be undertaken within 28 days of the date of the orders.

22 In order to provide access (there being a necessity for work to be carried out on both sides of the fence), we propose to order that access be available to the Browns’ property for the purpose of carrying out the work; that that access is to be on reasonable notice, at a reasonable hour of the day and the Browns are entitled to supervise that access.

23 Finally, the removal is to be of the totality of the tree with stump grinding to a depth of 200 mm below the surface as specified in the Bolans’ quotation.

Tim Moore Peter Thyer

Commissioner of the Court Acting Commissioner of the Court