Donaghy v Hammond

[2021] NSWLEC 1526

Land and Environment Court

New South Wales

Medium Neutral Citation:

Donaghy v Hammond [2021] NSWLEC 1526

Hearing dates:

1 June 2021

Date of orders:

10 September 2021

Decision date:

10 September 2021

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

See orders at [27]

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – large tree overhanging dwellings – whether the tree has caused damage – whether further damage or injury is likely – orders for pruning – orders for tree management plan

Legislation Cited:

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

Cases Cited:

Cayley v Gervay [2021] NSWLEC 1254

The Owners – Strata Plan 3346 v The Owners – Strata Plan 10848 [2021] NSWLEC 1504

Yang v Scerri [2007] NSWLEC 592

Texts Cited:

AS 4373-2007 ‘Pruning of amenity trees’

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

Sutherland Shire Development Control Plan 2015, Chapter 39

Category:

Principal judgment

Parties:

Paul Donaghy (Applicant)
Michael Hammond (Respondent)

Representation:

P Donaghy (Litigant in Person) (Applicant)
S Cominos (Counsel) (Respondent)

Solicitors:
Solari & Stock (Respondent)

File Number(s):

2021/32084

Publication restriction:

No

Judgment

Background to the application

1. Paul Donaghy (‘the applicant’) 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 removal of a large neighbouring Sydney Blue Gum (Eucalyptus saligna) (‘the tree’) that overhangs his property. The tree is on an adjoining Gymea Bay property owned by Michael Hammond (‘the respondent’).

The hearing

2. The matter was heard onsite, allowing observations of the tree and both properties. The applicant was self-represented; Mr Cominos, of Counsel, represented the respondent. I bring my own arboricultural expertise to this decision.

Framework for this decision

3. Before making orders, the Court must be satisfied that the applicant has made reasonable effort to reach agreement with the tree owner (s 10(1)(a) of the Trees Act).

4. Under Pt 2 of the Trees Act, the Court can only make orders if satisfied that the tree concerned 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 any person (s 10(2) of the Trees Act). The Court must also consider a range of matters at s 12 of the Trees Act before making orders such as those set out at s 9. I rely on my own arboricultural expertise and experience in making this decision.

The applicant made reasonable effort to reach agreement

5. Mr Donaghy has spoken with Mr Hammond about the tree. Mr Donaghy has received arboricultural advice. He wants an outcome to which Mr Hammond does not agree. Mr Hammond did not dispute that Mr Donaghy has tried to persuade him to remove the tree. I am satisfied that Mr Donaghy’s efforts to reach some agreement have been reasonable.

The tree

6. The Sydney Blue Gum on Mr Hammond’s property is a large mature…