Burnham v Ross

[2021] NSWLEC 1339

Land and Environment Court

New South Wales

Medium Neutral Citation:

Burnham v Ross [2021] NSWLEC 1339

Hearing dates:

2 June 2021

Date of orders:

2 June 2021

Decision date:

02 June 2021

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1) The application is granted to the extent of the orders below.

(2) Within 90 days of the date of these orders, the respondent is to engage and pay for a suitably qualified arborist (minimum AQF level 3), with all appropriate insurances, to remove the tree to the height of the top of the adjacent fence (or lower if the respondent wishes) and to treat the remaining stump to prevent regrowth.

(3) The works in Order (2) are to be done in accordance with the 2016 Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’.

(4) The respondent is to give the applicant 7 days’ notice of the works.

(5) The applicant is to allow any access necessary for the works to be completed.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – tree has caused damage – tree is likely to cause further damage – no suitable alternative to tree removal – orders for tree removal

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 6(3), 7, 9, 10, 12

Texts Cited:

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

Category:

Principal judgment

Parties:

Christine Burnham (Applicant)
Matthew Ross (Respondent)

Representation:

C Burnham (Litigant in Person) (Applicant)
M Ross (Litigant in Person) (Respondent)

File Number(s):

2021/46817

Publication restriction:

No

Judgment

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

Background to the application

1. A mature Angophora costata (Smooth-barked Apple) (‘the tree’) grows on the Lake Haven property belonging to Matthew Ross (‘the respondent’). This healthy tree is more than 20 metres tall, with a stem diameter of approximately 60 cm at chest height. It grows between Mr Ross’ shed and the boundary fence he shares with Christine Burnham (‘the applicant’). Its lower stem grows against the Colourbond fence; its buttress roots grow beneath the fence, pushing it upwards.

2. Pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’), Ms Burnham has applied to the Court seeking orders for the removal of the tree and all of its roots.

Framework for this decision

3. Before making orders in Pt 2 applications under the Trees Act, the Court must be satisfied that the applicant has made reasonable effort to reach agreement with the tree’s owners (s 10(1)(a) of the Trees Act). The Court must also be satisfied, at s 10(2), that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or is likely to cause injury to a person.

Reasonable effort to reach agreement

4. Ms Burnham has discussed the tree with Mr Ross over several years. She arranged a quote and says that she had…