Gardiner v Austin

[2022] NSWLEC 1417

Land and Environment Court

New South Wales

Medium Neutral Citation:

Gardiner v Austin [2022] NSWLEC 1417

Hearing dates:

24 May 2022

Date of orders:

8 August 2022

Decision date:

08 August 2022

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

See Orders at [26].

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Is the tree causing damage to concrete slab, pavers and fence – roots exposed – are exposed roots a risk to safety

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, ss6, 7, 9, 10, 12

Cases Cited:

Stevens v Russell [2016] NSWLEC 1233

Yang v Scerri [2007] NSWLEC 592

Texts Cited:

AS4373-2007 Pruning of amenity trees

Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work 2016

Category:

Principal judgment

Parties:

Maree Gardiner (Applicant)
Liam James Austin (Respondent)

Representation:

M Gardiner (Self-represented) (Applicant)
N Lynch (Agent) (Respondent)

File Number(s):

2022/76864

Publication restriction:

No

Judgment

Background

1. COMMISSIONER: Maree Gardiner (the applicant) and Liam Austin (the respondent) share a side boundary between their Tookley properties, which are separated by a 1.8 m tall metal panel fence. Ms Gardiner occupies her dwelling, while Mr Austin’s property is leased to tenants.

2. Trees in the respondent’s property are growing close to the common boundary. One tree in the front yard (T1) has recently been removed but the applicant says its roots have caused damage to a concrete slab and pavers, and that they are a trip hazard. She claims that branches from T3 are damaging the common fence in her back yard, and that other boundary trees may also cause damage or injury.

3. Ms Gardiner tried to negotiate a settlement to rectify damage with the respondent’s property agent (the agent), but communication through the agent has been slow and difficult, and a negotiated settlement appeared unlikely to occur.

4. Therefore, Ms Gardiner lodged an application with the Land and Environment Court of NSW (the Court) pursuant to s 7 of Pt 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act), seeking orders for the removal of T1 and pruning of T3, as a consequence of the damage she claims both are causing, and the risk of injury arising from the roots of T1.

The onsite hearing

5. The on-site hearing was conducted on 24 May 2022. As is customary, the trees in the respondent’s property and their impact on the applicant’s property were sequentially inspected. T1 was a large Oleander growing close to the fence in the front yard, which had recently been removed. Regrettably, damage to the common boundary fence resulted from the stump grinding of T1, and compensation for this damage has been added to the applicant’s claim.

6. T2 is a large Liquidambar styraciflua in the middle of the rear of the respondent’s land which was withdrawn from the application upon my arrival at the hearing. T3 is a small – medium sized Lagerstroemia indica (Crepe Myrtle) growing close to and overhanging the boundary, and some small branches were rubbing on the metal fence capping.

7. Ms Gardiner was accompanied by her…