Hayden v Brown

[2023] NSWLEC 1060

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Hayden v Brown [2023] NSWLEC 1060

Hearing dates:

07 February 2023

Date of orders:

07 February 2023

Decision date:

07 February 2023

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1)  The application is granted.

(2) The Respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances to remove Tree 1 and Tree 3 (as shown in the application) to no more than 300 mm above ground level within 30 days of the date of these orders. The works are to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.

(3)  The Respondents are to give the Applicant at least 7 days’ notice of the tree removal works in (2).

(4)  The Applicant is to allow reasonable access for the tree removal works in (2) during reasonable hours of the day.

(5) The Respondents are to engage and pay for a suitably experienced fencing contractor to repair or replace rails and palings in the two spans of fence damaged by Tree 2 and the one span of fence damaged by Tree 3, and to repair any further fence damage caused by the trees up to and during the tree removal works.

(6)  The Respondents are to give the Applicant at least 7 days’ notice of the fencing works in (5).

(7)  The Applicant is to allow reasonable access for the fencing works in (5) during reasonable hours of the day.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – neighbouring trees – damage to boundary fence – orders for tree removal and fence repairs

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, s 4, Pt 2, ss 7, 10, 12

Texts Cited:

Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’

Category:

Principal judgment

Parties:

William Evan Hayden (Applicant)
Phillip William Brown (First Respondent)
Jennifer Joy Brown (Second Respondent)

Representation:

S Cunningham (Solicitor) (Applicant)
No appearance (Respondents)

Solicitors:
Cunninghams – The Law Practice (Applicant)

File Number(s):

2022/354371

Publication restriction:

No

Judgment

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

1. COMMISSIONER: In the back garden of the Blayney property belonging to Phillip and Jennifer Brown (the Respondents), two trees have fallen across the side boundary fence. One of those trees has since been removed. A third tree, which is dead, stands close to the fence. Pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), William Hayden (the Applicant), who owns and lives at the adjoining property, has applied for orders for the removal of two trees and repairs to the common boundary fence.

2. The hearing took place onsite this morning. The Respondents did not appear. I knocked on the door of the Respondents’ property, which is apparently occupied by their son, without response. I heard the matter ex parte. Mr Hayden was represented by his solicitor, Mr Cunningham. Mr Hayden has obtained a report from arborist Mark Douglas. I have read the report and other material filed with the Court.

The Applicant made a reasonable effort

3. The Applicant has contacted the Respondents via telephone. He has spoken to their son, who occupies their property, about the trees. He has received unfulfilled assurances that the trees would be removed. He unsuccessfully sought mediation through the Community Justice Centre. I am satisfied he made a reasonable effort to reach agreement with the Respondents (s 10(1)(a) of the Trees Act).

The trees have caused or are likely to cause damage

4. Tree 1 is a dead Silver Birch (Betula pendula) standing a metre or so from the common boundary. It is covered in ivy. It is close to Mr Hayden’s dwelling and would cause some damage should it fall that way. Two other trees have fallen across the common boundary recently. Mr Hayden is concerned this tree will soon do the same. I accept this is likely. Damage could be avoided by removing the tree.

5. Tree 2 was a dead birch, also covered in ivy, that fell onto the common boundary fence, which supported the fallen tree for some months before it collapsed to the ground. The Respondents subsequently removed the tree. The timber paling fence has been temporarily patched together. It appears that two spans (sections between fence posts) of the fence have been damaged. The tree’s removal since it caused damage does not prevent me considering its presence and the damage it caused when making orders: see s 4(4) of the Trees Act.

6. Tree 3 is a dead Tortured Willow (Salix matsudana ‘Tortuosa’) that has fallen across and damaged one span of the boundary fence. The fallen tree now extends several metres into Mr Hayden’s garden. Mr Hayden was in the garden when the tree fell, and was almost struck.

7. I am satisfied, as required at s 10(2) of the Trees Act, that the three trees have caused damage (Trees 2 and 3) or are likely to cause damage in the near future (Tree 1) to the Applicant’s property, being his share of the common boundary fence.

Consideration of matters at s 12

8. Before making orders, I have considered the matters at s 12 of the Trees Act. The trees are close to the common boundary and can cause damage to the Applicant’s property, as two of them have done already. The remaining two trees are dead and make no significant contribution to amenity or environmental values. The Applicant has not contributed to the likelihood of damage in any way. The Respondents have been aware of the risk of damage for some time, but have taken no action to prevent it. The orders sought by the Applicant are reasonable and are orders that the Court can make. The Applicant seeks no orders for fence repair beyond the sections damaged by two tree failures.

Orders

9. Based on the foregoing, the Court orders:

1. The application is granted.

2. The Respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances to remove Tree 1 and Tree 3 (as shown in the application) to no more than 300 mm above ground level within 30 days of the date of these orders. The works are to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.

3. The Respondents are to give the Applicant at least 7 days’ notice of the tree removal works in (2).

4. The Applicant is to allow reasonable access for the tree removal works in (2) during reasonable hours of the day.

5. The Respondents are to engage and pay for a suitably experienced fencing contractor to repair or replace rails and palings in the two spans of fence damaged by Tree 2 and the one span of fence damaged by Tree 3, and to repair any further fence damage caused by the trees up to and during the tree removal works.

6. The Respondents are to give the Applicant at least 7 days’ notice of the fencing works in (5).

7. The Applicant is to allow reasonable access for the fencing works in (5) during reasonable hours of the day.

D Galwey

Acting Commissioner of the Court

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Amendments

09 February 2023 - Pursuant to rule 36.17 of the UCPR (the slip rule), correction is made to typographical errors at paragraphs [5].

Decision last updated: 09 February 2023