Green v The Owners - Strata Plan No 16846

Land and Environment Court

New South Wales

Medium Neutral Citation:	Green v The Owners – Strata Plan No 16846 [2019] NSWLEC 1500
Hearing dates:	16 October 2019
Date of orders:	16 October 2019
Decision date:	16 October 2019
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	See orders at [30].
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – damage and injury – debris – roof gutter damaged – no evidence of root damage – deadwood – orders for pruning
Legislation Cited:	Trees (Disputes Between Neighbours Act) 2006 (NSW)
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292
Texts Cited:	AS4373:2007 ‘Pruning of amenity trees’ Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’
Category:	Principal judgment
Parties:	Belinda Green (Applicant) The Owners – Strata Plan No 16846 (Respondent)
Representation:	B Green (Litigant in person) (Applicant) M Sardelich (Agent) (Respondent)
File Number(s):	2019/205860
Publication restriction:	No

Judgment

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

The application

1. Belinda Green (‘the applicant’) has applied to the Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’), seeking orders relating to a tree on neighbouring land in Port Macquarie belonging to the owners of Strata Plan No 16846 (‘the respondents’). Specifically, she seeks:

• Removal of a Swamp Mahogany tree at the respondents’ expense

• Costs of making the application.

2. Commissioners of the Court may not order costs, so Ms Green would need to file a Notice of Motion to be heard by a Judge or the Registrar of the Court should she wish to pursue that.

Framework of this decision

3. The Swamp Mahogany is a tree for the purposes of the Trees Act and is on land adjoining the applicant’s. The issues of contention, which I must determine today, are:

• Whether the applicant has made reasonable effort to reach agreement (s 10(1) of the Trees Act); and

• Whether the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or is likely to cause injury (s 10(2) of the Trees Act).

4. If both of the above questions are answered in the affirmative, before making any orders, I must consider a range of matters at s 12.

Brief outline of the situation

5. This Eucalyptus robusta (Swamp Mahogany) (‘the tree’) has grown here for some years and is now a mature tree. It is less than one metre from the common boundary shared by the applicant and the respondents. The respondents’ multi-dwelling building is set well back from this boundary, with lawn surrounding the tree. In 2012, multiple townhouses were built on the property next to the respondents’ land. These townhouses were constructed to the property boundary. Ms Green owns the front townhouse, the boundary wall of which is less than one metre from the tree. The roof of the second storey of her dwelling is less than one metre from the tree’s upper stem. Her son’s bedroom is in…