Hardy v George

[2007] NSWLEC 534

Land and Environment Court

of New South Wales

CITATION:	Hardy v George [2007] NSWLEC 534
PARTIES:	APPLICANTS Marie & Anne Hardy RESPONDENTS Tony & Rose George
FILE NUMBER(S):	20554 of 2007
CORAM:	Moore C - Murrell C - Thyer AC
KEY ISSUES:	Trees (Neighbours) - Neighbour Application :-
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
DATES OF HEARING:	22 August 2007
EX TEMPORE JUDGMENT DATE:	22 August 2007
LEGAL REPRESENTATIVES:	APPLICANTS Mr A Tudehope, solicitor RESPONDENTS First respondent in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C
MURRELL C
THYER AC

22 August 2007

07/20554 Marie & Anne Hardy v Tony & Rose George

JUDGMENT

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

The consequence of the Court’s decision in this application is the making of formal orders pursuant to s 9 of the Trees (Disputes Between Neighbours) Act 2006 . These orders are not reproduced as part of this decision but a copy the Court’s Orders may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders are available on the Court’s web site at

1 COMMISSIONERS: This is an application made pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2007 (the Act) made by Ms Marie and Ms Anne Hardy of 69 Homebush Road, Strathfield concerning a Lemon Scented Gum (Cymbria citriodora) (the tree) located on the adjacent property to the north which is 74 Redmyre Road. This property is owned by Mr and Mrs George.

2 The application is in two parts. The first part seeks the removal of tree in its entirety and in the second part is a claim for compensation for damage to a driveway crossing gate located adjacent to the Hardys’ main house entrance.

3 It is convenient to deal with the quotation and damage claim in the first instance. The existing gates are in four panels - two of which are fixed (upon the sides) and two in the centre which open. They are lightweight aluminium structures and there is some limited evidence of damage and re-attachment spear points of the gate tops.

4 There is a minor degree of distortion to the gates.

5 However, the compensation claim is for the removal of gates and their replacement with new wrought iron gates in a similar style. We have been given no evidence indicating whether or not it is possible to repair the gates. There is certainly no evidence which indicates that it is not possible to repair the gates.

6 We are not satisfied that the compensation sought, of over $2,500, based on the quotation from Darren Richards, is proportionate to such damage as may have been caused – without dealing with submissions put by Mr George disputing causation of that damage. Even accepting the Hardy position on causation, the compensation claimed is entirely disproportionate to any damage actually sustained to the gates. As a consequence, that element of the application is refused.

7 With respect to the tree, we have carefully examined its canopy and can see at least eight places at which there has been branch failure in the past.

8 We accept the evidence of the Hardys that at least one of those branches has fallen into their property.

9 We have, however, also examined the general health and vigour of the tree and are satisfied that there is no basis upon which we can conclude that there is any probability of major structural failure or general major limb failure being likely to occur in the near future.

10 We are satisfied, however, that it is probable that, within the near future, there is a likely risk of injury to the Hardys by one branch located on the southern side of the tree.

11 We propose to order that that branch be pruned, not at the point of attachment to the main trunk but that a point where there is to a lateral branch coming off it. This lateral branch runs in an easterly direction parallel to the fence between the George and Hardy properties. The point of pruning will be identified in a photograph that will form part of the orders of the Court.

12 The pruning will be required to be undertaken within 60 days of the date of the orders of the court and is to be undertaken by an AQF level 3 arborist with appropriate insurances. The pruning to be undertaken in accordance with Australian Standard 4373 of 2007.

13 To the extent that it may be necessary or desirable for the arborist to access the Hardy property for the purposes of this pruning, the Court will order that such access is to be made available – on reasonable notice; at a reasonable hour of the day; and that the Hardys are to have the opportunity of supervising that access (if it is required).

14 Finally, the pruning is to be undertaken as a cost to Mr and Mrs George.

Tim Moore

Commissioner of the Court

Commissioner of the Court

Acting Commissioner of the Court