Devine v Dunlany

[2025] NSWLEC 1512

Land and Environment Court

New South Wales

Medium Neutral Citation:

Devine v Dunlany [2025] NSWLEC 1512

Hearing dates:

26 June 2025

Date of orders:

26 June 2025

Decision date:

26 June 2025

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1)   The application is granted.

(2)   The respondents are to engage and pay for a suitably insured and qualified (minimum AQF level 3) arborist to remove the tree within 30 days of the date of these orders, leaving a stump no taller than 3 metres, and to remove all parts of the bougainvillea extending past the common boundary and above the applicants’ land.

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

(4)   The respondents are to give the applicants 7 days’ notice of the works in Order (2).

(5)   The applicants are to allow all access required for completion of the works in Order (2) during reasonable hours of the day.

(6)   The exhibits are retained.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – neighbouring tree – risk of damage – orders for tree removal

Legislation Cited:

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

Texts Cited:

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

Category:

Principal judgment

Parties:

Andrew Devine (First Applicant)
Jennifer Devine (Second Applicant)

Ramon Dunlany (First Respondent)
Lisa-Maree Masterson (Second Respondent)

Representation:

Counsel:
A Devine (Self-represented and agent) (First and Second Applicants)
R Jones (Solicitor) (First and Second Respondents)

Solicitors:
Bellevue Lawyers (First and Second Respondents)

File Number(s):

2025/163547

Publication restriction:

Nil

Judgment

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

Background

1. COMMISSIONER: A dead blackbutt (the tree) is situated on the Kirrawee property belonging to Ramon Dunlany and Lisa-Maree Masterson (the respondents). Bougainvillea plants, also situated on their property, have grown to cover much of the dead tree. Part of the tree has broken and hangs above the back garden of the adjoining property belonging to Andrew and Jennifer Devine (the applicants). The Devines have applied to the Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (the Trees Act), seeking orders for the removal of the tree and the bougainvillea and for compensation for damage to their garden.

2. Mr Devine represented himself and his wife; Mr Jones represented the respondents. The hearing took place onsite, allowing me to observe the tree and both properties. In making this decision I also consider material in the originating application and a copy of Sutherland Shire Council’s determination on an application to remove the tree. Further affidavits were filed by the applicants and respondents after the dates set out by the Court in an earlier directions hearing. Reasons for the late filing were unsatisfactory, so those affidavits were not read.

3. Ms Masterson’s name is corrected at the outset of this judgment, as it was recorded incorrectly on the Court’s file.

Reasonable effort to reach agreement

4. The applicants submitted that they have tried to persuade the respondents to remove the tree overhanging their property. The respondents disputed this, but conceded that they applied to Sutherland Shire Council (Council) for consent to remove the tree following a ‘demand’ from their neighbour. I am satisfied that the applicants made a reasonable effort to reach agreement with the respondents and that the timeframe set down by the Court has allowed for the required notice of the application: s 10(1) of the Trees Act.

The tree is likely to damage property

5. The blackbutt (Eucalyptus pilularis) is dead. It is adjacent to the common boundary between the parties’ properties. An upper stem or branch has broken, falling over the applicants’ property. The branch, which is covered in bougainvillea, has fallen onto a macadamia tree on the applicants’ property, where it is held up by a combination of the bougainvillea and the macadamia tree. If left where it rests, it will damage the macadamia tree’s foliage and branches. Alternatively, it may fall further and damage the dividing fence and other parts of the applicants’ garden. The tree is likely to cause damage to the applicants’ property in the near future, so the Court may make orders: s 10(2)(a) of the Trees Act. The applicants did not claim that the tree is likely to cause injury.

6. Orders can be made to prevent damage to the applicants’ property: s 9 of the Trees Act. Orders can also be made for compensation. Before making orders, the Court must consider matters at s 12 of the Trees Act.

Consideration of relevant matters

7. I have considered the matters at s 12 of the Trees Act.

8. The tree is adjacent to the common boundary. Its broken section is above the applicants’ property.

9. The respondents applied to Council for consent to remove the tree. Council granted consent to remove the tree on 11 April 2025.

10. The tree provides no significant environmental benefits. No habitat hollows could be seen in the tree.

11. The respondents submitted that the tree provides some privacy screening between the two properties. In fact, the tree’s dead stem provides little in the way of screening – rather, it is the bougainvillea that provides screening and contributes to privacy. Retaining the lower few metres of the tree’s stem would provide some continued support for the bougainvillea on the respondents’ side of the fence.

12. The applicants submitted that the bougainvillea should be removed completely. They said it would continue to leave thorns in their grass, causing injury in future. Although I find that removing bougainvillea that has spread over the applicants’ property will prevent it damaging plants in their garden, there is no reason to order removal of all bougainvillea on the respondents’ side of the common boundary.

13. The respondents submitted that the Court should not make any orders, as they offered an agreement that the applicants did not accept. They said they had permission to remove the tree, and would do so. The applicants explained that the respondents did not inform them that Council provided consent to remove the tree until after the respondents received a copy of the tree dispute application to the Court. This is despite the respondents receiving Council consent well before then. Furthermore, Council’s consent allowed tree removal any time within two years – it did not require the respondents to remove the tree, and even if they decided to remove it, the applicants may have to wait up to two years for this to be done. I accept that this would be unsatisfactory for the applicants: their wish to have orders for tree removal is reasonable.

Orders

14. The Court orders:

1. The application is granted.

2. The respondents are to engage and pay for a suitably insured and qualified (minimum AQF level 3) arborist to remove the tree within 30 days of the date of these orders, leaving a stump no taller than 3 metres, and to remove all parts of the bougainvillea extending past the common boundary and above the applicants’ land.

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

4. The respondents are to give the applicants 7 days’ notice of the works in Order (2).

5. The applicants are to allow all access required for completion of the works in Order (2) during reasonable hours of the day.

6. The exhibits are retained.

……………………………….

D Galwey

Acting Commissioner of the Court

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Decision last updated: 17 July 2025