Mordaunt v Reynolds

[2023] NSWLEC 1244

Land and Environment Court

New South Wales

Medium Neutral Citation:

Mordaunt v Reynolds [2023] NSWLEC 1244

Hearing dates:

1 February 2023

Date of orders:

1 February 2023

Decision date:

01 February 2023

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

The Court orders that:

(1) Within 120 days of the date of these orders, the respondents, at their expense, shall remove the Eucalyptus mollucana at the rear of their property to near ground level. The stump shall not be poisoned but may be stump ground.

(2) The tree removal works shall be completed by AQF level 3 qualified arborists who hold all appropriate insurances.

(3) The tree removal works shall be completed in compliance with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016.

(4) Should access be required into the applicant’s property to complete the works or clear up refuse, the applicant shall provide all reasonable access upon receipt of at least 72 hours’ notice by email from the respondents, advising the date and approximate start time of the tree removal works. A copy of the contracted arborist’s insurance Certificates of Currency shall be attached to the email.

(5) All works shall be completed during reasonable daytime working hours.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to deck roof and boundary wall – apprehension of further damage, and of injury

Legislation Cited:

Environmental Planning and Assessment Act 1979

Trees (Disputes between Neighbours) Act 2006, ss 7, 8, 9, 10(1)(a), 10(2), 12

Cases Cited:

McPherson v Lake [2017] NSWLEC 1081

Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152

Yang v Scerri [2007] NSWLEC 592

Texts Cited:

AS4790:2009, Protection of trees on development sites

Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work 2016

Category:

Principal judgment

Parties:

Gweneth Mordaunt (Applicant)
Danielle Reynolds (First Respondent)
Michael Reynolds (Second Respondent)

Representation:

G Mordaunt (Self-represented) (Applicant)
M Reynolds (Self-represented) (Respondents)

File Number(s):

22/280884

Publication restriction:

Nil

Judgment

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

1. COMMISSIONER: This is an application, pursuant to s 7 of Pt 2 of the Trees (Disputes between Neighbours) Act 2006 (the Trees Act) by Ms Gweneth Mordaunt (the applicant). It relates to a Eucalyptus mollucana (Grey Box) (the tree) located close to the rear boundary of an adjacent neighbouring property in South Penrith, owned by Danielle and Michael Reynolds (the respondents).

2. The applicant’s property is located to the north of the respondents’ land. The parties’ properties share a rear boundary and are accessed from different streets. The applicant occupied her property in 2013, where she resides with her husband. Until recently, a dwelling on the respondents’ land had been leased to a tenant but had since been demolished.

3. In her application, Ms Mordaunt noted that in 2017, she had verbally advised Mr Reynolds that branches, especially deadwood, regularly fell from the tree into her backyard, thus presenting a risk of injury to her family, but the respondents failed to mitigate such risk. The applicant noted that medical intervention required by her husband, then disruption from COVID-19, delayed her taking further action for some years. In 2022, the applicant wrote to Mr Reynolds with a complaint about the tree but received no reply.

4. The applicant provided photographic evidence of a small branch which had pierced old, corrugated fibreglass roofing above her back veranda, and she noted that a large live branch had fallen into her rear yard on 1 August 2022. The applicant added that another live branch, which she claimed was about 7.5 m long and 450 mm circumference, also broke and hung up in the tree, and was subsequently pulled down onto her rear yard by the SES.

5. In April 2022, Mr Reynolds lodged an application with Penrith City Council (Council) for tree removal. Ms Mordaunt provided Council with evidence in support of the application, but on 21 June 2022, Council refused permission for removal, instead granting permission for pruning.

6. On 25 June 2022, in response to an email from the applicant, Mr Reynolds advised Ms Mordaunt that he was not going to appeal Council’s refusal of the application, nor “take any further proceedings with the gum tree”. In a submission to the Court, dated 3 December 2022, the applicant noted that Mr Reynolds’ refusal to appeal Council’s refusal to grant permission for tree removal was the basis of the “dispute between neighbours”.

The onsite hearing

7. The onsite hearing on 1 February 2023 commenced on the respondents’ land, where two dwellings were under construction. The tree was inspected initially, with Ms Mordaunt and Mr Reynolds in attendance. The tree was large and mature, approximately 21 metres (m) tall, and the trunk’s diameter at breast height (DBH) was about 900 mm (= 0.9 m). The trunk bifurcated into two near vertical secondary stems at a height of about 7 m. The co-dominant junction so formed, and live branch junctions throughout the canopy, generally appeared structurally sound from ground level.

8. At first glance, the tree appeared moderately healthy with live foliage density typical of its advanced age and species, but it displayed a relatively high level of tip dieback, and some epicormic (sucker) growth. While these features may occur when a mature tree is stressed by insufficient water, this was not the likely cause here, considering the above average rainfall recorded since 2020 throughout the Sydney Basin.

9. The tree had a slight lean towards the applicant’s property and was located about 550 mm south of a concrete block common boundary wall about 1.8m high. The majority of the tree’s canopy was growing towards and over the applicant’s land. Adjacent to the tree’s base, cracks between concrete blocks displayed a zig-zag pattern up the wall and progressively broadened towards the top.

10. The smaller of the two partially constructed dwellings, which was closest to the tree, was rectangular in shape and extended east-west across the majority of the respondents’ land. The northern edge of its concrete slab foundation and rear wall were parallel with and slightly more than 4 m from the common boundary, and about 2.5 m from the base of the tree.

11. There were indications of recent earth moving equipment activity all around the tree, including raised soil across the tree’s root zone, and rough levelling. The machinery activity appeared to have caused severe compaction of the clay soil characteristic of this area, and isolated inversion of the natural soil profile.

12. A trench had been excavated parallel with and about 200 mm north of the dwelling for the installation of PVC sewer and stormwater pipes, and various vertical pipes emerged from the soil along the trench’s length. The sewer main was also located parallel with the common boundary, about 500 mm south of the tree, and additional excavation had been required in connecting the sewer pipe to the main, and for the installation of an inspection pit about 1.5 – 2 m from the tree’s base. Ms Mordaunt included photographs of tracked excavators conducting these works, including extensive excavation immediately adjacent to the trunk base.

13. Other trenches excavated at the western end of the dwelling remained filled with water after recent rains, thus suggestive of poor subsoil drainage. Soil under the concrete slab floor was similarly saturated.

14. The Court next moved to the applicant’s land to inspect damage, and for oral submissions.

The applicant’s proposed orders

15. The applicant proposed the following (summarised) orders:

1. Respondents shall remove the tree due to damage to property and risk of injury.

2. Tree removal to be undertaken, at the respondents’ expense, within a specified time frame considered just and reasonable by the Court.

The respondents’ alternative orders

16. The respondents proposed alternative (summarised) orders:

1. Should orders be made for tree removal, that the applicant and the respondents each pay half the cost of tree removal and that the Court allow 6 months from the date of determination for said tree removal, or

2. Should orders be made for tree removal at the respondents’ expense, that the Court allow 12 months from the date of determination for said tree removal.

3. That the applicant, or agents of the applicant, do not engage with or contact the respondents, their family, or their tenant.

Jurisdictional requirements

17. With respect to s 7 of the Trees Act, an owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land.

18. The applicant provided evidence of satisfying the requirements under s 8(1)(a) and s 8(1)(b) of the Trees Act: to serve notice of the application and the orders sought to the respondents more than 21 days prior to the proceedings, along with service of the application documents to Council.

19. The Court’s ability to make orders is limited, at s 10 of the Trees Act.

10 Matters of which Court must be satisfied before making an order

(1) The Court must not make an order under this Part unless it is satisfied:

(a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, and

(b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 8.

(2) The Court must not make an order under this Part unless it is satisfied that the tree concerned:

(a) has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or

(b) is likely to cause injury to any person.

20. If the jurisdictional tests at s 10 of the Trees Act are satisfied, the Court can make orders such as those at s 9 to remedy, restrain or prevent damage to property, or to prevent injury to a person, as a consequence of the tree.

21. Before determining the nature of any orders, the Court must consider a range of matters set out at s 12 of the Trees Act.

22. In her application, Ms Mordaunt provided a detailed chronology of contact attempts, and contact with Mr Reynolds since 2017, including a clear outline of her apprehension of damage and fears of injury related to the tree, and the fact that she sought tree removal. The applicant organised mediation through a Community Justice Centre which occurred on 27 May 2022, apparently without resolution, notwithstanding that Mr Reynolds had applied to Council for tree removal in April 2022.

23. As a result, the applicant had made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, such that s10(1)(a) of the Trees Act was engaged. Section 10(1)(b) was also engaged by the applicant’s satisfaction of s 8 of the Trees Act.

24. Therefore, the principal jurisdictional tests in this matter are at s 10(2) of the Trees Act.

Damage caused by the tree

25. Viewed from the applicant’s backyard, decayed, severed roots of the tree were visible under the boundary wall, below the zig-zag cracks. The progressive broadening of the vertical cracks towards the top of the wall is a pattern typical of damage due to uplift, and I was satisfied that roots of the respondents’ tree, thickening under this relatively light wall, had caused this damage.

26. Based on the arboricultural expertise I bring to the Court, I was also satisfied that the small branch displayed in the applicant’s photograph, protruding through the old, corrugated fibreglass roof above her back veranda, was probably from a Eucalyptus mollucana. In the absence of other tree’s nearby, I was satisfied that this damage has been caused by the tree, notwithstanding that the tree’s canopy is about 10 m from the applicant’s dwelling such that the branch must have blown towards the applicant’s house during heavy southerly winds.

27. As a consequence of each of these instances of damage, s 10(2)(a) of the Trees Act is engaged.

28. This roof damage entailed a relatively unlikely coincidence of the branch blowing onto a fairly small area of roof that was, based on the photograph, deteriorated and fragile, as corrugated fibreglass is prone to become with significant age. Since the damage, the applicant had replaced the corrugated fibreglass.

29. Therefore, I am not satisfied that further damage of this nature is likely in the near future, where, based on the decision in Yang v Scerri [2007] NSWLEC 592, the near future is defined, as a rule of thumb, to be a period of one year. Similarly, though a fallen branch had previously been entangled in the applicant’s clothesline, without causing damage, I was not satisfied that damage to this clothesline is likely in the near future.

Likelihood of injury

30. The applicant claimed that the tree poses a genuine likelihood of injury to her, her husband, and to their grandchildren, particularly in the backyard.

31. While assessment of damage under the Trees Act relates only to the applicant’s property, consideration of injury can relate to other areas surrounding the tree. In Robson v Leischke (2008) 72 NSWLR 98; NSWLEC 152, at [175], Preston CJ, said:

“In contrast to the requirement that damage caused by a tree be to the applicant’s property (s 7 and s10(2)(a)), likely injury can be to “any person” (s 7 and s 10(2)(b)). That phrase is ample enough to include the applicant but the person need not be the applicant. Moreover, there is no locational requirement that the person who is likely to be injured be on the applicant’s land. Persons who might be likely to be injured could be on the applicant’s land but, also, could be on the adjoining land on which the tree is situated or on other land in proximity (including public roads, pathways or reserves) that might be impacted by the tree, or part of it, failing”.

32. Based on the decision in McPherson v Lake [2017] NSWLEC 1081 at [10], in considering injury, the Court must assess and determine the risk posed by a tree in the foreseeable future based on the characteristics of the tree/s, the history of any failures, any other relevant evidence, and the circumstances of the site apparent at the time of the hearing.

33. Dieback, which initiates at the tips of branches and progresses down and along into larger wood, in association with epicormic (sucker) growth, usually on larger branches and eventually the trunk, are classic symptoms of root damage.

34. Though, as I noted above at [8], the tree displayed a sound trunk and branches, and foliage density ‘typical’ of its age and species, these emerging symptoms of root damage gave cause for a more detailed and invasive inspection. Removal of bark from the lower trunk exposed 3 inverted ‘V’ shaped patches of white yeasty fungal mycelium overlaying xylem tissue, which, when aggregated, comprised about 50% of the trunk’s circumference where phloem and vascular cambium tissue had been consumed by the fungus and/or died.

35. Again, based on my arboricultural expertise, I was satisfied that the fungus was Armillaria luteobubalina (Armillaria), a relatively common root rot, which had likely entered the tree through roots severed long ago in conjunction with the construction of the base of the block boundary wall.

36. Trees’ primary anchorage in the soil is not usually provided by tap roots but from a web of roots that grow in an irregular pattern laterally out from the trunk base (or crown) like the spokes of a wheel. Roots need oxygen to respire and thus normally grow relatively close to the surface, particularly in dense clay soils, as found here.

37. As noted in guidelines in the Australian Standard, ‘AS4790:2009 Protection of trees on development sites’, the Tree Protection Zone (TPZ), a circular area around the tree with a radius of 12 x trunk DBH, which in this case is about 12 x 0.9 = 10.8 m, should be isolated from any excavation works, machinery traffic, and stockpiling of materials.

38. A smaller circle around the tree with a radius of about 4.3 x trunk DBH, (in this case about 4.3 x 0.9 = 3.87 m) is termed the Structural Root Zone (SRZ). This is considered the absolute minimum area of undisturbed soil and roots required to maintain even a semblance of tree stability in the ground.

39. Considering the tree’s slight lean and canopy bias towards the applicant’s property, the primary roots on the tree’s southern side are loaded under tension. These roots are particularly important in stabilising the treeand minimising the likelihood of it failing near ground level and falling over. This is termed catastrophic failure by windthrow.

40. Relative to roots loaded under compression on the tree’s northern side, tension roots are usually very long and located close to the soil surface, and they cumulatively provide shear resistance to excessive movement in the soil in response to prevailing southerly winds and gravity. The extent and shape of a tree’s root zone is subject to many variables, but commonly exceeds 3 x the spread of the canopy.

41. Excavation within the SRZ for the building slab and the trench for pipes, only about 2.3 m from the trunk base on the tree’s southern side, and marginally further away on its south-eastern and south-western sides, has almost certainly caused serious damage to primary and secondary roots, and rendered the tree at risk of windthrow. This risk has been exacerbated by the extensive excavation, displayed in the applicant’s photographs, undertaken directly adjacent to the trunk for connection of pipes to the sewer main, and for the inspection pit.

42. Roots that ostensibly remain intact on the tree’s eastern and western sides would also have been compromised by soil compaction, caused by the tracked machinery activity throughout the narrow site. This is evidenced by the applicant’s photographs and by my inspection of the appearance of the site soil at the hearing. Compaction of clay soil, particularly when wet, inhibits the ability of roots to absorb sufficient oxygen and exchange gases, resulting in decline of root function, deterioration of root structure, and thus reduced root shear resistance within the soil.

43. The tree’s ability to limit the spread of the Armillaria root rot is a function of its health and vigour and levels of carbohydrate storage, along with its age/life cycle stage, and species characteristics. The likely extensive root damage and removal has almost certainly caused a significant reduction in the tree’s capacity to absorb water and nutrients, and major stress. Epicormic growth promoted by consequential root: canopy disequilibrium uses and reduces stored carbohydrates. In combination, these factors deplete the tree’s capacity to mount protection from the spread of Armillaria into larger roots and the lower trunk.

44. I have considerable experience working with this species, including many healthy, declining, and dead specimens. Though the trunk and branch wood is amongst the hardest of all Eucalyptus species, perhaps paradoxically, the root wood of declining and dead specimens usually deteriorates quite rapidly.

45. As a result of extensive root damage, particularly within the tree’s all-important SRZ, I am satisfied that the tree’s health and vigour will seriously decline, in conjunction with further deterioration of root structure and strength due to the likely rapid spread of the Armillaria root rot.

46. Should the tree fail, based on its lean and canopy bias, and the location of the severed roots south of the tree, it is likely to fall towards the applicant’s dwelling. Given the tree’s height of about 21 m, and the distance of about 14 m from the tree’s base to the applicant’s dwelling, should the tree impact the dwelling, it would probably cause considerable damage.

47. As the protection that the roof structure of the applicant’s dwelling may usually provide would be unlikely to resist the forces associated with impact of the tree’s heavy trunk and/or primary branches, and the frequency of occupation of the applicant’s dwelling is high, I am satisfied that the tree is likely to cause injury to any person, consequently engaging s 10(2)(b) of the Trees Act.

32. With s 10 satisfied, in order to determine, what, if any, orders should be made, the Court must consider relevant matters in s 12 of the Trees Act.

Discretionary matters – Section 12

49. The tree is situated on the respondents’ land, close to the common boundary (s 12(a)).

50. Under the Environmental Planning and Assessment Act 1979, Council granted consent for pruning the tree, but refused to permit tree removal. Mr Reynolds submitted that Council had thus determined that the tree was sound and should be retained. Mr Reynolds claimed, consequent of Council’s determination, that should the Court instead order tree removal, it is unreasonable for him to pay for such removal, at least in a short time frame, considering that it would cost much more than pruning (s 12(b)).

51. The tree provides moderate protection from the sun, and from wind. As it is visible from neighbouring houses, it also provided intrinsic value to public amenity (ss 12(b3) and (f)).

52. The tree provides food and habitat for fauna. As it is endemic to the area and one of the main emergent tree species of Cumberland Plain Woodland, the tree makes significant ecosystem and biodiversity contributions (s 12(d)).

Conclusions

53. I have examined the tree and the site and have reached the following conclusions.

54. Following on from my consideration of s 12(b) of the Trees Act, the primary remit of Council tree officers is to grant or deny permission for requested works, based on a tree inspection. The Court, however, under Pt 2 of the Trees Act, is required to determine an application the basis of damage caused by a tree or likely to be caused in the near future, and/or on the likelihood that the tree will cause injury to any person. As I noted at [8], “at first glance” the tree appeared “moderately healthy”. Had I limited my inspection to this first glance, I may have made orders for pruning, as Council had in their granting of permission for pruning.

55. From the applicant’s photograph of a branch having pierced the rear deck roof, I am satisfied that the tree had caused minor damage but was not satisfied that further damage was likely in the near future. Section 10(2)(a) of the Trees Act was thus engaged, but based on this damage, tree removal, as proposed by the applicant, would not have been ordered.

56. Following my inspection of the boundary wall from the applicant’s rear yard, I determined that a root or roots of the tree had caused cracks in the wall, again engaging s 10(2)(a) of the Trees Act. The applicant had mentioned this damage in her application but proposed no orders in response. Regardless, the wall remained functional and was old. Had the applicant proposed orders arising from this damage, normal wear and tear would have required consideration, such that the cost of any orders for repair may have been apportioned between the parties.

57. Though the tree appeared to be moderately healthy with reasonable foliage cover for its advanced age, this belied significant damage to its roots, which are critical in providing stability in the ground. A significant time lag between damage to roots, and symptoms of the damage appearing on a tree’s canopy and trunk, is to be expected.

58. Branch tip dieback, epicormic growth on branches, and extensive soil excavation in close proximity of the tree’s base caused me to undertake a more detailed investigation. Mr Reynolds saw the considerable extent of fungal mycelium and damage which I exposed on the lower trunk, and I explained my findings to both parties.

59. Considering the cumulative impact of likely major root damage caused by extensive excavation in the tree’s CRZ and the advanced infestation of Armillaria root rot, I concluded that future catastrophic failure by windthrow was highly probable, as significant stress resulting from the root damage would allow the Armillaria to spread with little inhibition.

60. With excavations refilled with soil and the site roughly re-levelled, I could not determine the location and configuration of the tree’s root system, the number, location, and size of primary and secondary roots that have been severed or destroyed, whether some roots were sufficiently deep to have avoided damage, or the pattern and future rate of deterioration of roots as a result of Armillaria.

61. While my arboricultural expertise and the size of the trunk allowed me to speculate on a typical or expected root configuration, in the absence of X-ray vision, the permutations and combinations associated with all these variables, provided me with insufficient knowledge to make an informed prognosis. In such circumstance, one must act conservatively.

62. The catalyst that usually precipitates windthrow events is strong wind after and/or combined with heavy rain and this is also unpredictable until a few weeks before it occurs. Therefore, there was great uncertainty as to when the tree’s root anchorage will fail, or where the tree will land.

63. Having said this, the trunk lean, and bias of the tree’s canopy towards the north, and the likely extensive severing of critical tension roots across the southern side of the tree within the CRZ, renders impact with the applicant’s dwelling probable.

64. As the tree’s mass and velocity at impact would create forces likely to vastly exceed protection provided by the structure of the applicant’s dwelling, I was satisfied that the tree was likely to cause injury to any person, such that s 10(2)(b) of the Trees Act is engaged.

65. Just as there is no jurisdictional restriction on the location where a tree may be likely to cause injury, s 10(2)(b) of the Trees Act imposes no time constraint on the likelihood of a tree to cause injury to any person.

66. While I considered catastrophic failure by windthrow to be highly probable in the mid-term, I did not anticipate this occurrence to be within the next year, such that the requirements of likely damage in the near future, in s 10(2)(a) of the Trees Act, were not satisfied. Having said this, a major storm during this period may change my conclusion of possible to probable.

67. Although, as shown in consideration of s 12 of the Trees Act, the tree contributes significantly to its ecosystem and to biodiversity, when a tree represents a genuine risk of injury to people, personal safety must be prioritised. Orders shall therefore be made for tree removal.

68. Mr Reynolds appeared disgruntled that orders be made for tree removal, particularly as Council had granted permission for pruning. Nonetheless, based on my extensive experience with this species, the unpredictability of the rate of future fungal root decay, consequent propensity for catastrophic collapse at or below ground level, and the presence of proximal targets, this is a situation that must be addressed.

69. Along with the orders of the Court, I included a version of this explanation in my oral judgment summary to the parties, provided onsite soon after the proceedings.

70. I appreciate that the respondents were likely not aware of the implications of siting a dwelling, based on a concrete slab, so close to a large tree - the likelihood of associated serious root damage, and, in conjunction with the extensive Armillaria root rot, the resultant inevitability of future catastrophic failure of the tree, should the tree not be removed first.

71. Nonetheless, it was the respondents’ actions in the development of their land that have resulted in the tree becoming likely to cause injury to persons, through the proximal location of the secondary dwelling and a lack of consideration of possible impacts of extensive and deep excavation on the tree. In the absence of these major site alterations linked to the development, the Armillaria would have been concerning, but it was likely to have remained relatively stable and contained, at least in the short and medium term, and regular monitoring by an arborist, rather than tree removal, would have been appropriate.

72. In consideration of this responsibility, the respondents, as the owners of the tree, have a duty of care to neighbours, and to their future tenants, regarding property damage or injury that may result from the tree, should such damage or injury be foreseeable.

73. Just as one would employ an engineer to clarify if a new building is structurally sound and safe, a responsible, prudent, reasonable person, undertaking major site alterations and excavations whilst constructing a dwelling in close proximity of a large tree, would seek the advice of an appropriate expert, thus a qualified, experienced arborist, to clarify whether the tree was sound and safe, or, whether damage or injury was foreseeable.

74. Even more so, when a neighbour, over whose yard the tree was primarily growing, had repeatedly brought such questions and concerns about the tree to Mr Reynolds’ attention.

75. Consequently, the respondents’ proposed alternative orders to either share the removal cost with the applicant, or delay payment and thus tree removal for 12 months, are not reasonable, and shall not be granted. I will, however, allow 120 days from the date of determination for the tree’s removal, in consideration of the respondents’ cash flow concerns. This is more than double the usual period for the execution of such orders.

76. Regarding the respondents’ third proposed order: “that the applicant, or agents of the applicant, do not engage with or contact the respondents, their family, or their tenant”, this is also unreasonable. I accept, in its entirety, Ms Mordaunt’s response on page 5 of her submission of 3 December 2022. No evidence has been provided to the Court suggesting that such a request from the respondents is reasonable, nor that Ms Mordaunt’s had contacted or tried to contact any of the respondents’ family, other than Mr Reynolds. Rather, the applicant had followed procedures consistent with the Court’s recommendations and had made a reasonable effort to reach agreement with the respondents. Ironically, by making this application, Ms Mordaunt may have saved the respondents from responsibility for serious consequences.

77. The only responsible option available here is tree removal. It is customary for the respondents to pay for works subject to orders made under the Trees Act, and there is no reason to vary that here.

78. The applicant was concerned about the respondents selling their property before orders were executed, but in such circumstances, the orders of the Court transfer with the property title to the subsequent owner.

Orders

79. The Court orders that:

1. Within 120 days of the date of these orders, the respondents, at their expense, shall remove the Eucalyptus mollucana at the rear of their property to near ground level. The stump shall not be poisoned but may be stump ground.

2. The tree removal works shall be completed by AQF level 3 qualified arborists who hold all appropriate insurances.

3. The tree removal works shall be completed in compliance with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016.

4. Should access be required into the applicant’s property to complete the works or clear up refuse, the applicant shall provide all reasonable access upon receipt of at least 72 hours’ notice by email from the respondents, advising the date and approximate start time of the tree removal works. A copy of the contracted arborist’s insurance Certificates of Currency shall be attached to the email.

5. All works shall be completed during reasonable daytime working hours.

J Douglas

Acting Commissioner of the Court

**********

Decision last updated: 19 May 2023