Grover v Rulli

[2009] NSWLEC 1259

Land and Environment Court

of New South Wales

CITATION:

Grover v Rulli [2009] NSWLEC 1259

PARTIES:

APPLICANT
William Frank Grover

RESPONDENT
Libby Rulli

FILE NUMBER(S):

20320 of 2009

CORAM:

Murrell C - Thyer AC

KEY ISSUES:

TREES (NEIGHBOURS) :-

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

28 July 2009

EX TEMPORE JUDGMENT DATE:

28 July 2009

LEGAL REPRESENTATIVES:

APPLICANT
William Frank Grover (litigant in person)

RESPONDENT
Libby Rulli (litigant in person)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C
Thyer AC

28 July 2009

20320 of 2009 William Frank Grover v Libby Rulli

JUDGMENT

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

1 A Celtis tree is growing in the north western corner of the back yard of 322 Concord Road, Concord West (the property). The property is owned by Ms Rulli. The tree is situated less than 100 mm from the common boundary with the adjoining property to the west.

2 Mr Grover is the owner of 2 Bangalla Road, Concord West, the adjoining land to the west (the land). He makes an application under the Trees (Disputes Between Neighbours) Act 2006 (the Act) to prevent property damage.

3 Mr Grover seeks orders for removal of the tree.

4 When assessing an application under the Act, the Court must be satisfied that one or more of the four tests in s 10(2)(a) and (b) of the Act are met by the tree before making an order regarding that tree. These tests are:

Has the tree caused damage to the applicant’s property on the land?
Is the tree now causing damage to the applicant’s property on the land?
Is the tree likely in the near future to cause damage to the applicant’s property on the land?
Is the tree likely to cause injury to any person?

5 Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of:

Is the damage or risk sufficiently serious to warrant the Court intervening?
If so, what should the Court order?
Who should pay to carry out those orders?

The tree

6 The tree is a Celtis occidentalis (Hackberry) and is a tree within the meaning of that term in s 3(1) of the Act. The tree is situated wholly on the property, meeting s 4(3) and s 7 of the Act. As a consequence there is an application that the Court may determine.

7 The tree is about 14 m tall, has a crown spread of about 14 m and trunk diameter of about 0.4 m. A large lower branch over Ms Rulli’s property has included bark and presents a high risk of failure. The tree is leaning noticeably over Ms Rulli’s property.

Damage

8 We find that the tree has, is, and is likely in the near future to cause damage to Mr Grover’s driveway and possibly to his sewer line and his house. Thus it meets all three tests in s 10(2)(a) of the Act. As a consequence the Court has power to make such orders as it thinks fit in accordance with s 9 of the Act.

9 Considering the matters in s 12 of the Act, we find that there are no other trees likely to have caused the observed damage to Mr Grover’s property. However, the tree provides a significant contribution to the landscape amenity of both properties and the surrounding area such that its replacement is warranted.

10 On that basis we will order removal of the tree at Ms Rulli’s cost, and due to her claim of financial difficulty, we will allow a period of four months as she has requested to carry out that work. Also due to the significant size of the tree and its contribution to landscape amenity we will order a replacement tree be planted on her property.

11 The Orders of the Court are that the application is upheld and the Court makes the following orders.

1. These orders apply to No. 322 Concord Road, Concord West;
2. Ms Rulli shall remove the tree and treat the stump to prevent regrowth at her cost and these works shall be completed within four months of the date of these orders;
3. Tree material shall not be removed through Mr Grover’s property;
4. Mr Grover shall grant access over his property to carry out the pruning work. The work shall take place at reasonable times and on at least 48 hours notice;
5. A replacement tree shall be planted on Ms Rulli’s property at her cost within four months of the date of these orders. That tree shall be planted a minimum of 3 m from any boundary, be from a pot size of at least 5 litres, and shall be capable of and nurtured to grow to about 10 m in height. The replacement tree shall not be a noxious weed or a tree exempt from protection under the Canada Bay Tree Preservation Order.

___________________ ___________________

J S Murrell P Thyer
Commissioner of the Court Acting Commissioner of the ljr Court