Gardiner v Bisley

[2021] NSWLEC 1176

Land and Environment Court

New South Wales

Medium Neutral Citation:

Gardiner v Bisley [2021] NSWLEC 1176

Hearing dates:

11 February 2021

Date of orders:

13 April 2021

Decision date:

13 April 2021

Jurisdiction:

Class 1

Before:

Douglas AC

Decision:

See final orders at [86]

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to property – apprehension of additional damage to property – leaves, sticks, and other refuse from trees falling on applicant’s land – is risk of genuine injury foreseeable

Legislation Cited:

Environmental Planning and Assessment Act 1979 s 12

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

Uniform Civil Procedure Rules 2005 sch 7

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292

Black v Johnson (No 2) [2007] NSWLEC 513

Robson v Leischke (2008) 72 NSWLR 98; (2008) 159 LGERA 280

Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29

Stevens v Russell [2016] NSWLEC 1233

Yang v Scerri [2007] NSWLEC 592

Texts Cited:

Australian Standard AS 4373-2007 Pruning of amenity trees

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

Category:

Principal judgment

Parties:

Joel Gardiner (Applicant)
Max Bisley (Respondent)

Representation:

J Gardiner (Litigant in person) (Applicant)
M Bisley (Litigant in person) (Respondent)

File Number(s):

2020/301573

Publication restriction:

No

Judgment

Background

1. Mr Gardiner, the applicant, lives in Mount Pleasant, a suburb high up the escarpment overlooking the Illawarra region, which is characterised by large trees, and lush vegetation. Approximately 13 trees are subject to the dispute, with one large Eucalyptus pilularis (Blackbutt), being the primary focus. He submitted an application, pursuant to s 7 of Part 2 of the Trees (Disputes between Neighbours) Act 2006 (the Act) seeking the removal of a row of trees, and replacement of a wall.

2. Mr Gardiner, in a letter to Mr Bisley, the respondent, dated 28 November 2016, introduced himself as “your new neighbour”, and raised concerns about the large gum tree (the Blackbutt) overhanging his yard and house. He noted that he has been “advised that these trees are very brittle, and commonly large branches can snap off without warning”. Mr Gardiner contends that “if and when this happens, it is likely to fall through the roof of the children’s bedrooms”, or injure anyone in its path. He requested a meeting with Mr Bisley to discuss this matter.

3. On 15 October 2018, Mr Gardiner wrote a second a letter to Mr Bisley. He advised that “two of our daughter’s bedrooms have large tree limbs hanging over them, along with our entire back courtyard”, and that “we worry about the safety of our children constantly.” Mr Gardiner noted that “we have spoken to different tree companies who have told us that the tree is extremely dangerous” and “that gums like that can just drop a limb out of nowhere on a hot day”.

4. Mr Gardiner infers that discussions have occurred between the parties since his initial letter, in saying “you have suggested that we cut down what hangs over our fence but the…