Hepworth v Trzebiatowski

[2022] NSWLEC 1093

Land and Environment Court

New South Wales

Medium Neutral Citation:

Hepworth v Trzebiatowski [2022] NSWLEC 1093

Hearing dates:

17 February 2022

Date of orders:

17 February 2022

Decision date:

17 February 2022

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

See orders at [25].

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – neighbouring trees – risk of damage or injury – bushfire – orders for tree pruning and removal

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 6, 7, 9, 10, 12

Cases Cited:

Willis v Johnson [2021] NSWLEC 1513

Yang v Scerri [2007] NSWLEC 592

Texts Cited:

Australian Standard AS 4373–2007 ‘Pruning of amenity trees’

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

Category:

Principal judgment

Parties:

Kathleen Hepworth (Applicant)
Wojciech Trzebiatowski (First Respondent)
Anna Pawlak (Second Respondent)

Representation:

K Hepworth (Litigant in Person) (Applicant)
W Trzebiatowski (Litigant in Person) (First Respondent)

File Number(s):

2021/306051

Publication restriction:

No

Judgment

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

Background to the application

1. Kathleen Hepworth (‘the Applicant’) has applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’). Ms Hepworth seeks orders for removal of overhanging branches from one tree (‘Tree 1’) and removal of another tree (‘Tree 2’) on neighbouring land owned by Wojciech Trzebiatowski and Anna Pawlak (‘the Respondents’).

2. The original application included only Tree 1, a Grey Gum (Eucalyptus punctata). The application was subsequently amended to add Tree 2, a Black Tea-tree (Melaleuca bracteata).

Framework for this decision

3. Before making orders in applications under Pt 2 of the Trees Act, the Court must be satisfied that the Applicant has made reasonable effort to reach agreement with the tree’s owner (s 10(1)(a) of the Trees Act). The Court must also be satisfied, at s 10(2), that each 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 to a person. The Court must consider a range of matters at s 12 of the Trees Act before making any orders at s 9.

4. The hearing took place onsite. The parties were self-represented. Louise Bennett, the consulting arborist engaged by Ms Hepworth to prepare a report, gave evidence at the hearing.

Reasonable effort to reach agreement

5. Ms Hepworth wrote to the Respondents asking them to remove overhanging branches. I am satisfied that her effort to resolve the issue was reasonable.

Are the trees likely to cause damage or injury?

6. In her original application, Ms Hepworth raised the issue of brush turkeys roosting in the overhanging branches of Tree 1 and their faeces falling into her pool and onto the surrounding paving. In Willis v Johnson [2021] NSWLEC 1513 the Court explained that Pt 2 of the Trees Act did not include the jurisdiction to make orders to remedy this problem.

Tree 1