O'Neill v Frost

[2007] NSWLEC 400

Land and Environment Court

of New South Wales

CITATION:	O’Neill v Frost [2007] NSWLEC 400 This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:	APPLICANT Michael O’Neill RESPONDENT Patricia Frost
FILE NUMBER(S):	20260 of 2007
CORAM:	Moore C - Brown C - Thyer AC
KEY ISSUES:	Trees (Neighbours) - Neighbour Application :-
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
DATES OF HEARING:	20 June 2007
EX TEMPORE JUDGMENT DATE:	20 June 2007
LEGAL REPRESENTATIVES:	APPLICANT Ms K Law, solicitor Matthews Folbigg RESPONDENT Mr J Fisicaro, solicitor John Fiscaro & Co

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C
BROWN C
THYER AC

20 June 2007

07/20260 Michael O’Neill v Patricia Frost

JUDGMENT

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

The consequence of the Court’s decision in this application is the making of formal orders pursuant to s 9 of the Trees (Disputes Between Neighbours) Act 2006 . These orders are not reproduced as part of this decision but a copy the Court’s orders may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the orders are available on the Court’s web site at

1 COMMISSIONERS: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by Mr O’Neill of 79 First Avenue, Berala, concerning two Blackbutt trees (Eucalyptus pilularis) located on the adjacent property to the east which is 172 Nottinghill Road, Lidcombe. Ms Frost owns this property.

2 The larger canopied of the two trees (which is to the north) is some 20 to 25 m high and the tree to the south is of a similar height but of a much smaller growth pattern.

3 There has been a recent major failure of the southern tree at a major fork in its trunk.

4 We are satisfied, having examined the residual on that part of the tree which remains standing, together with the branch from the tree which is fallen across the roof of the garage on Mr O’Neill’s property, that the third test under s 10(2)(a) of the Act (that the remaining part of this tree is likely in the near future to cause damage to Mr O’Neill’s property) is met.

5 If we are wrongly in this, we are also satisfied that, pursuant to s 10(2)(b) of the Act, that this tree is likely to be a risk of injury to persons - whether they are residents of Mr O’Neill’s property or of Ms Frost’s property.

6 We are therefore satisfied that it would appropriate to order the removal of this tree to a height of 300 mm above the ground and that this should take place within 14 days of the date of this hearing (that is by the end of 4th July 2007). We do not understand that Ms Frost resists this order.

7 With respect to the larger tree located to the north, there is a history of some branch drops from it in high winds.

8 There are, from our examination of it, some matters of possible structural concern with respect to this tree.

9 We are not satisfied that, on the evidence available to us from an inspection of this tree by binoculars, that these possible structural concerns are of sufficient seriousness (from our limited ability to observe them) to warrant ordering removal of the tree.

10 However, we are satisfied that it is possible that either the third test of s 10(2)(a) or the test in s 10(2)(b) of the Act might be satisfied. We are satisfied to a sufficient extent that further investigation of this tree by an appropriately qualified arborist is desirable. If structural deficiencies are discovered by such arborist which warrant further action, then the orders we propose will require this to be undertaken.

11 There are two further elements of Mr O’Neill’s claim.

12 The first related to a garage which was damaged by the falling of the branch from the southern of the two trees.

13 Although this claim for compensation was not ultimately pressed, we note that, in response to Development Application 317 of 2004 (lodged by Mr O’Neill for an erection of a new storage shed at the rear of his property) the existing garage is to be demolished when the storage shed is completed.

14 The storage shed is, in fact, completed and Mr O’Neill has informed the Court that he has been given a final occupation certificate in satisfaction of this development application - without the existing garage, in fact, being demolished.

15 Although this claim was not pressed, we are satisfied, based on the material provided in the development application documents appended to the affidavit of Ms Frost dated 14th June 2007, that it is more appropriate for the Court to dismiss that claim.

16 With respect to the final matter, which relates to the fence between the properties, we are not satisfied that the present deficiencies in the fence were caused by the trees to a sufficient extent to require the jurisdiction of the Court to be invoked under the Act.

17 Although the fence may be a matter for consideration between the parties, pursuant to the Dividing Fences Act, we are not satisfied that the jurisdiction under the Act is enlivened.

18 We are, therefore, of the view that the following orders should be made by the Court:

1. The southern of the Blackbutt trees (Eucalyptus pilularis) located on 172 Nottinghill Road, Lidcombe adjacent to the rear boundary is to be removed at 300 mm above the ground;
2. The removal in (1) is to be completed by the 4th July 2007 (being 14 days after the date of the hearing);
3. The removal in (1) is to be undertaken by an AQF Level 3 arborist with appropriate insurances;
4. At the time that the removal in (1) takes place, the arborist in (3) is also to remove the branch that has fallen on the applicant’s garage;
5. The respondent is to commission a climbing inspection of the more northern of the Blackbutt trees located on 172 Nottinghill Road, Lidcombe adjacent to the rear boundary;
6. This inspection is to be undertaken by an AQF Level 5 arborist with appropriate insurances who is to provide a report to the respondent within 7 days of that examination with a copy to be provided, by the respondent, within a further 7 days, to the applicant;
7. The arborist in (5) is to report on the health and structural integrity of the tree with particular attention to the structural adequacy of a major fork approximately 10 m above the ground marked on the photograph which forms Annexure A to the Orders of the Court and to a further fork on the northern side of the main trunk at approximately 5 m above the ground marked on the photograph which forms Annexure B to the Orders of the Court;
8. If the arborist in (5) recommends the removal of all or any part of this tree because it is likely in the near future to cause damage to the applicant’s property or is a likely risk to injury to any person, such removal shall take place within 90 days of the date of the arborist’s report;
9. During the course of the inspection in (5), all dead wood above 30 mm in diameter shall be removed and all broken branch stumps are to be removed with such reduction pruning to be in accordance with the relevant provisions of Australian Standard 4373 of 2007;
10. The inspection by the arborist in (5) into the structural integrity of the northern trees is to be undertaken within 28 days of the date of the orders of the Court;
11. The application for compensation for damage for the garage is dismissed;
12. The application with the respect to the dividing fence is dismissed;
13. The arborists engaged by the respondent carry out these orders are to have access on reasonable notice and at reasonable times to the property of the applicant in order to give effect to these orders;
14. the applicant is permitted to supervise such access; and
15. All work is to be undertaken at a cost to the respondent.

Tim Moore Graham Brown

Commissioner of the Court Commissioner of the Court

Peter Thyer

Acting Commissioner of the Court

02/07/2007 - Spelling correction - Paragraph(s) Coversheet