Ghazal v Vella

[2011] NSWLEC 1105

Land and Environment Court

New South Wales

Medium Neutral Citation:	Ghazal v Vella [2011] NSWLEC 1105
Hearing dates:	12 May 2011
Decision date:	12 May 2011
Before:	Fakes C
Decision:	Application upheld; orders made to de-cone Bunya Pine
Catchwords:	TREES [NEIGHBOURS]; risk of injury from falling Bunya Pine cones
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Uniform Civil Procedure Rules 2005
Cases Cited:	Robson v Leischke [2008] NSWLEC 152 Newman v Eizenberg [2009] NSWLEC 1203 Adamski v Betty [2007] NSWLEC 200 Langtip v Granstrom [2008] NSWLEC 44
Category:	Principal judgment
Parties:	APPLICANT W Ghazal RESPONDENTS M & M Vella
Representation:	Mr W Ghazal (Applicant in person) Mr C Xuereb (Solicitor for the Respondent) Charles R Xuereb & Co
File Number(s):	20112 of 2011

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1. This is an application pursuant to s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Blacktown against the owners of a Bunya Pine growing on an adjoining property.

1. The applicant is seeking the pruning of the tree or the removal of cones as he contends that cones falling from the tree could cause injury to any person or to his pet dog. The applicant likes the tree and is not seeking its removal.

1. The tree is an Araucaria bidwillii (Bunya Pine) growing approximately midway along the respondents' backyard on the western boundary close to the dividing fence between the parties' properties. The tree is healthy with no obvious structural defects.

1. The applicant states that when he and his wife purchased their property in 1986 the tree was not there. Photographs viewed at the hearing and taken in the late 1980s show that even if it had been present at that time it was very small.

1. The applicant stated that the cones first started falling in the summer of 2003/2004 and that each summer since then cones have fallen from the tree. In 2011, 4 cones fell from the tree from the beginning of summer until the end of February. The cones were shown in evidence.

1. The tree overhangs the applicant's property by about 2.5-3m. Beneath the tree are a vine-covered pergola and a landscaped area with fruit trees. Concrete paths surround the landscaped area. There is an outdoor sink under the tree and nearby is a large shed, the door of which opens onto the concrete apron near the tree.

1. The applicant contends that he and his extended family spend a great deal of time outside and that he and his wife, being retired, spend most days outside working in various parts of the garden. He is concerned that as the large cones fall without warning someone could be injured.

1. The respondents were represented by their solicitor Mr Xuereb. On their behalf he contends that whilst the tree does produce fruit it is for a limited amount of time and that the risk of actual…