Dominello v Bosso

[2021] NSWLEC 1641

Land and Environment Court

New South Wales

Medium Neutral Citation:

Dominello v Bosso [2021] NSWLEC 1641

Hearing dates:

20 October 2021

Date of orders:

20 October 2021

Decision date:

20 October 2021

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders that:

(1) The application is refused.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – neighbouring trees – damage to property – one tree has damaged fence – compensation – whether the applicant made reasonable effort to reach agreement – whether other trees pose a risk to property

Legislation Cited:

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

Cases Cited:

Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152

Category:

Principal judgment

Parties:

Josephine Dominello (Applicant)
Mario Giuseppe Bosso (Respondent)

Representation:

Counsel:
J Dominello (Litigant in Person) (Applicant)
D Sayer (Solicitor) (Respondent)

Solicitors:
Blunden Law (Respondent)

File Number(s):

2021/171342

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. After a neighbouring tree recently fell on her tennis court fence, Josephine Dominello (‘the applicant’) incurred a $500 excess on the resulting insurance claim. Ms Dominello is concerned that other trees on the neighbouring property belonging to Mario Bosso (‘the respondent’) will fall and damage her fence or injure somebody. Ms Dominello has applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’), seeking orders for the respondent to remove six dead wattle trees and six eucalypts that she says are in poor condition. Ms Dominello has received $500 from Mr Bosso to cover her insurance claim excess and seeks no compensation here.

The hearing

2. The hearing took place online via audio-visual means. Ms Dominello was self-represented and Mr Sayer, solicitor, represented the respondent. Mr Bosso’s affidavit of 14 September 2021 included an ‘Arboricultural Assessment Report’ by David Gowenlock, of Seasoned Tree Consulting, dated 31 August 2021. At the end of the hearing, I determined that, with the evidence and submissions before me, a site inspection would not be required. I bring my own arboricultural expertise and experience to making this decision.

Framework for this decision

3. Jurisdictional tests under Pt 2 of the Trees Act are set out at s 10, where the Court must be satisfied of certain matters before making any orders. Firstly, the Court must be satisfied that the applicant has made reasonable effort to reach agreement with the tree owner (s 10(1)(a)). Secondly, the Court must be satisfied that the trees concerned have caused, are causing, or are likely in the near future to cause, damage to the applicant’s property, or are likely to cause injury to any person (s 10(2)).

4. The Court must also consider a range of matters at s 12 of the Trees Act before (at s 9) making “…such orders as it thinks fit to remedy, restrain or prevent damage to property, or to prevent injury to any person, as a consequence of the tree the subject of the application concerned.”

The applicant has not made reasonable effort to reach agreement

5. Before making any orders, the Court must be satisfied at s (10)(1)(a) of the Trees Act “…that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated.” The wording used at s 10(1)(a) is, as Chief Judge Preston found at [195] of Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152, “… less demanding than the language used in provisions of other statutory enactments which require parties to make reasonable attempts to reach agreement…”. The Court has set a relatively low bar for applicants to meet this requirement, the Court’s aim being to resolve disputes where possible under the relevant legislation.

6. However, at question 32 of the claim details form accompanying her application (Exhibit A), Ms Dominello ticked the ‘No’ box at the question: “Have you made efforts to reach agreement to resolve this matter with the owner of the land on which the trees are situated?” Ms Dominello did not suggest during today’s hearing that she has made any effort since commencing these proceedings. Pursuant to s 10(1)(a) of the Trees Act, the Court cannot make any orders.

The trees

7. Not wishing to deny Ms Dominello a fair outcome to her application based on what must seem, to her at least, a legal detail, I also consider here the trees in light of s 10(2) of the Trees Act.

8. Mr Gowenlock, a qualified arborist, assessed and reported on the trees. He applied different tree numbering to that used by Ms Dominello. For clarity, here I use Ms Dominello’s tree numbering.

9. The tree that fell recently was T7, apparently a eucalypt. Mr Gowenlock inspected its stump and found (on p 7 of his report) that it had “…a large amount of decay, termite activity and a large hollow and these features are highly likely to have caused the failure of this tree.”

10. Ms Dominello wants tree T8, adjacent to the stump of the fallen tree, removed. She also wants other large eucalypts (T9–T12) further from her property removed. She submitted that all these trees are in poor condition and are dying as a result of excess ground water that flows from an adjacent property into this part of Mr Bosso’s property.

11. Mr Gowenlock described T8 (‘T1’ in his report) as being in fair condition with a moderate amount of deadwood present. It had none of the features he saw in the stump of the fallen tree, so he did not think that whole tree failure was likely. He recommended that deadwood be removed from its crown.

12. Mr Gowenlock described trees T9–T12 (‘T3’ in his report) as being in poor condition, but they were not tall enough to reach the boundary fence should they fall, so he recommended no action for these trees.

13. Ms Dominello also wants six dead wattle trees (T1–T6) near her property removed. Mr Gowenlock said these trees (‘T2’ in his report) were all dead and should be removed. They were small trees up to 8 metres tall and 5 metres across.

14. Based on the evidence described above, I find T8 is unlikely to fall, although it might shed large dead branches, which are likely to fall within the respondent’s property. The tree is not likely to cause damage to the applicant’s property in the near future.

15. Eucalypts T9–T12 are unlikely to cause damage to the applicant’s property even if they fall.

16. Wattles T1–T6 are more likely to fall apart than fall over, shedding branches within the respondent’s property. They are not likely to cause damage to the applicant’s property in the near future.

17. Setting aside, for a moment, the applicant’s lack of effort to reach some agreement with the respondent, I find that the trees are unlikely to cause damage to Ms Dominello’s property in the near future; and, people are rarely in the area beneath the trees, so the trees are unlikely to cause injury. No orders would be made for any of these trees. I note here that Mr Gowenlock recommended removing T1–T6 and pruning T8 as good arboricultural management practice. Mr Sayer has recommended to Mr Bosso that he carry out these works.

Orders

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

1. The application is refused.

……………………………….

D Galwey

Acting Commissioner of the Court

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Decision last updated: 22 October 2021