Garbutt v Nichols

[2025] NSWLEC 1035

Land and Environment Court

New South Wales

Medium Neutral Citation:

Garbutt v Nichols [2025] NSWLEC 1035

Hearing dates:

9 January 2025

Date of orders:

9 January 2025

Decision date:

09 January 2025

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1)   The application is granted as per the following orders.

(2)   The applicants are to engage and pay for suitably insured and qualified (minimum AQF level 3) arborists to prune the tree within 60 days of the date of these orders, and annually thereafter during the month of February, to remove all branches of the neighbouring blackbean tree extending over their property. Pruning must be done in accordance with AS4373:2007 ‘Pruning of amenity trees’ and the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’. In some instances this will require pruning branches back to their branch collars beyond the common boundary and within the respondents’ property.

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

(4)   The respondents are to allow all reasonable access required for completion of each occurrence of the works in Order (2) during reasonable hours of the day.

(5)   The exhibits are retained.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – neighbouring tree – risk of damage and injury – whether tree removal is required – development consent conditions

Legislation Cited:

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

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292

Hendry & anor v Olsson & anor [2010] NSWLEC 1302

Texts Cited:

Australian Standard, AS 4373:2007 ‘Pruning of amenity trees’ (March 2007)

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

Category:

Principal judgment

Parties:

Daniel Garbutt (First Applicant)
Amy Garbutt (Second Applicant)
Denise Nichols (First Respondent)
Christine Bird (Second Respondent)

Representation:

D Garbutt (Self-represented) (First Applicant)
A Garbutt (Self-represented) (Second Applicant)
D Nichols (Self-represented) (First Respondent)
C Bird (Self-represented) (Second Respondent)

File Number(s):

2024/405690

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 mature blackbean tree (the tree) grows in the rear garden of the Bulli property belonging to Denise Nichols and Christine Bird. Its canopy partly extends across their side boundary into the neighbouring property belonging to Daniel and Amy Garbutt.

2. The Garbutts have applied to the Court seeking orders for Ms Nichols and Ms Bird to remove their tree. Their reasons are:

• This large tree drops considerable amounts of debris that falls onto their roof and into their guttering. This has blocked their gutters and downpipes, causing drainage issues around the property and beneath their dwelling. The maintenance required to prevent this is too onerous for them. They cannot safely access the roof of their double-storey dwelling.

• The additional moisture combined with the tree’s shade causes mould issues on their property.

• Seed pods drop onto their…