Green v Bogdanovska

[2019] NSWLEC 1243

Land and Environment Court

New South Wales

Medium Neutral Citation:	Green v Bogdanovska [2019] NSWLEC 1243
Hearing dates:	31 May 2019
Date of orders:	31 May 2019
Decision date:	31 May 2019
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	(1)   The application is granted. (2)   Within 30 days of the date of these orders, the respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances to remove the two cypress trees to no more than 50 cm above ground level. (3)   The works ordered above must be carried out in accordance with AS4373:2007 ‘Pruning of amenity trees’ and the 2016 Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’. (4)   On reasonable notice, the applicant is to allow any access required to complete the works ordered above during reasonable hours of the day.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – damage – paving – consent orders
Legislation Cited:	Trees (Disputes Between Neighbours Act) 2006 (NSW)
Cases Cited:	Barker v Kryiakides [2007] NSWLEC 292
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:	Raymond Green (Applicant) Valentina Bogdanovska (Respondent)
Representation:	R Green, litigant in person (Applicant) V Bogdanovska, litigant in person (Respondent)
File Number(s):	2019/62081
Publication restriction:	No

Judgment

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

The application

1. Raymond Green (‘the applicant’) has applied to the Court pursuant so s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’) seeking orders for two neighbouring cypress trees to be removed. His application states that the trees’ roots are damaging his paving, and debris from the trees blocks his gutters.

The onsite hearing

2. At this morning’s onsite hearing, Valentina Bogdanovska (‘the respondent’) explained that, until she received a copy of the application, she was unaware of Mr Green’s concerns, and has had no other discussions with him since. In fact, they have never met or spoken.

Jurisdiction to make orders

3. The Court has a range of orders it can make, the jurisdiction being established at s 9 of the Trees Act. Before making any orders, several jurisdictional tests must be satisfied at s 10. For Mr Green’s application, I must be satisfied that “the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated” (s 10(1)(a)), and that the trees have caused damage to his property (s 10(2)(a)).

Effort made to reach agreement

4. Given the lack of communication between the parties, I adjourned the hearing for ten minutes to give them a chance to discuss the matter. Mr Green showed Ms Bogdanovska the damage to his property. When we resumed, she explained that she agreed to the proposed orders for tree removal.

The trees have caused damage

5. In keeping with the principle established in Barker v Kryiakides [2007] NSWLEC 292, I would not make orders here on the basis of debris blocking gutters.

6. Considering the location of the trees, the proximity and alignment of lifted pavers, and the absence of other possible causes, I am satisfied that both trees have caused damage.

7. Having considered the matters at s 12 of the Trees Act, I find removal of the trees is the most appropriate means of preventing further damage. The trees are the source of greater nuisance than their benefits for both parties. They contribute little to public amenity and have limited environmental value. Installing a root barrier would be likely to cause such root loss that the trees would decline.

Orders by consent

8. As a result of the foregoing, I find it appropriate to make the orders consented to by the parties. The orders of the Court are:

1. The application is granted.

2. Within 30 days of the date of these orders, the respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances to remove the two cypress trees to no more than 50 cm above ground level.

3. The works ordered above must be carried out in accordance with AS4373:2007 Pruning of amenity trees and the 2016 Safe Work Australia Guide to managing risks of tree trimming and removal work.

4. On reasonable notice, the applicant is to allow any access required to complete the works ordered above during reasonable hours of the day.

……………………………….

D Galwey

Acting Commissioner of the Court

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