Marks v Perham

[2018] NSWLEC 1390

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Marks v Perham [2018] NSWLEC 1390

Hearing dates:

20 July 2018

Date of orders:

20 July 2018

Decision date:

20 July 2018

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders that:

 

(1) Within 60 days of the date of these orders, the respondent is to engage a suitably qualified and experienced arborist (minimum AQF level 3 in Arboriculture), with all appropriate insurances, to remove the three (3) Syzygium paniculatum trees which are the subject of these proceedings, with their stumps to be the subject of:
a)   stump grinding or
b)   poisoning
by the said arborist.

 

(2)   The works are to be done in accordance with the guidelines of the WorkCover NSW Code of Practice for the Amenity Tree Industry.

 

(3)   The respondent is to give the applicants at least 7 days’ notice of the works in (1).

 

(4)   During reasonable hours of the day the applicants are to allow any property access required during the works for the purpose of dismantling the trees and cleaning up debris, excluding access to or from the street.

 (5)   The exhibits are returned.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to terracotta pipes – not shown which tree caused damage – risk of damage or injury – orders by consent

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006 (NSW)

Cases Cited:

Breen & Anor v Caronna & Anor [2008] NSWLEC 293
Fifield v Sang and Wang [2018] NSWLEC 1377
Zangari v Miller (No 2) [2010] NSWLEC 1093

Category:

Principal judgment

Parties:

Aidan Marks (First Applicant)
Ryan Swanson (Second Applicant)
Benjamin Perham (Respondent)

Representation:

Solicitors:
R Schmidt; Bull, Son & Schmidt (Applicants)
P Brown; HWL Ebsworth (Respondent)

File Number(s):

2018/87208

Publication restriction:

No

Judgment

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

Background

1. Mr Perham (the respondent) has a row of three Magenta Cherry trees (Syzygium paniculatum) growing on his property adjacent to the common boundary with the property of Mr Marks and Mr Swanson (the applicants). The condition of the trees has deteriorated recently – two trees now have less than 50% live foliage in their crowns. Their amenity has been reduced in the past by poor pruning that has left branch stubs and adversely affected crown form.

2. The parties have spent some time and effort disputing what may have caused the trees’ condition to decline and what needs to be done. In March 2018 Mr Marks and Mr Swanson applied to the Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’) seeking orders for Mr Perham to remove the three trees and for rectification of a sewer pipe they say was damaged by roots of the trees.

3. The parties have each filed reports by arborists – the applicants have filed two reports by Trevor Hawkeswood; the respondent has filed a report from Peter Castor. The reports present very different pictures…