Jones v Cavaliere

[2021] NSWLEC 1186

Land and Environment Court

New South Wales

Medium Neutral Citation:

Jones v Cavaliere [2021] NSWLEC 1186

Hearing dates:

15 April 2021

Date of orders:

15 April 2021

Decision date:

15 April 2021

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders that:

(1)   The application is granted.

(2)   Within four months of the date of these orders the respondent is to engage and pay for a suitably qualified arborist (minimum AQF level 3), with all appropriate insurances, to remove the tree to no more than 60 cm above ground level. The works are to be done in accordance with the 2016 Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’.

(3)   The respondent is to give the applicants at least 2 days’ notice of the works.

(4)   The applicants are to allow any access necessary for the works to be completed.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) –– damage to property caused by neighbouring tree – orders for tree removal

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 10(1)(a), 10(2)(a), s 12

Texts Cited:

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

Category:

Principal judgment

Parties:

Terrance Jones (First Applicant)
Renee Jones (Second Applicant)
Daniel Cavaliere (Respondent)

Representation:

T Jones (Litigant in Person) (First Applicant)
R Jones (Litigant in Person) (Second Applicant)
D Cavaliere (Litigant in Person) (Respondent)

File Number(s):

2021/11753

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. Renee and Terrance Jones (‘the applicants’) applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’) seeking orders for the removal of a tree on the neighbouring Maryland property belonging to Daniel Cavaliere (‘the respondent’).

History

2. A Narrow-leaved Black Peppermint (Eucalyptus nicholii) (‘the tree’) grows on the respondent’s land, adjacent to the common boundary with the Jones’ property.

3. The Jones, who have lived here for 13 years, recently replaced the boundary fence, which was in poor condition, installing a new sleeper retaining wall with steel fencing panels above. A short distance away the brick paving around their pool is cracked, but it has been in this state since they moved here.

4. The older sleeper retaining wall had been raised, perhaps by tree roots as the Jones suggested. The new retaining wall appears stable, but the new fence appears to be raised already at its northern end, next to the tree.

The applicants made reasonable effort

5. The Jones have asked Mr Cavaliere to address the issue, without response. I am satisfied that their efforts were reasonable (s 10(1)(a) of the Trees Act).

The tree has damaged the applicants’ property

6. Due to the fence’s proximity to the tree, and absent of any other explanation, I am satisfied that the fence has been raised by tree roots. As the tree has therefore damaged the fence, the Court can make orders (s 10(2)(a) of the Trees Act).

Relevant matters considered

7. The tree is close to the common boundary. Root growth is likely to cause further damage to the fence. Damage is relatively minor. If the tree was more significant, with a longer life expectancy, alternatives to its removal might be explored. However, bringing my own arboricultural expertise and experience to this matter, I noted the following:

• A significant number of the tree’s branches have died

• Dead branches are relatively small, but the species is prone to relatively rapid decline, and larger branches are likely to die in the near future

• Dead branches will drop onto the applicants’ poolside area and into the respondent’s garden

• Removal of the tree is therefore likely to be required within a few years

• To avoid further damage, it is reasonable to remove the tree now.

8. Mr Cavaliere submitted that he would need some time to afford the works, so I have allowed four months for removing the tree.

9. I have considered the matters at s 12, and make orders below.

Orders

10. The Court orders that:

1. The application is granted.

2. Within four months of the date of these orders the respondent is to engage and pay for a suitably qualified arborist (minimum AQF level 3), with all appropriate insurances, to remove the tree to no more than 60 cm above ground level. The works are to be done in accordance with the 2016 Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’.

3. The respondent is to give the applicants at least 2 days’ notice of the works.

4. The applicants are to allow any access necessary for the works to be completed.

……………………………….

D Galwey

Acting Commissioner of the Court

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Decision last updated: 21 April 2021