Prasad v Dyster

[2008] NSWLEC 21

Land and Environment Court

of New South Wales

CITATION:

Prasad v Dyster [2008] NSWLEC 21

PARTIES:

APPLICANT
Shiu Prasad

RESPONDENT
Barrie and Mary Dyster

FILE NUMBER(S):

21125 of 2007

CORAM:

Hoffman C - Fakes AC

KEY ISSUES:

Trees (Neighbours) - Neighbour Application :- Removal and pruning of trees, potential damage due to poorly attached branches overhanging neighbour's courtyard.

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

14/01/2008

EX TEMPORE JUDGMENT DATE:

14 January 2008

LEGAL REPRESENTATIVES:

APPLICATION
Mr S. Prasad, litigant in person

RESPONDENT
Mr B. and Mrs M. Dyster, litigant in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C
Fakes AC

14 January 2008

21125 of 2007 Shiu Prasad v Barrie and Mary Dyster

JUDGMENT

1 This is an application No. 21125 of 2007 under s 7 of the Trees (Disputes between Neighbours) Act2006, between Shiu Prasad and Barrie & Mary Dyster in regard to a Ficus Benjamina and a Camphor Laurel adjacent to the rear boundary of No. 40 Audley Street, Petersham.

2 The neighbour at the rear is the applicant Mr Prasad of Apartment No. 5, in No. 30 Livingstone Road, Petersham. He said he owned the whole property and development of units at No. 30 Livingstone Road.

3 The hearing on site and in No. 30 was attended by the parties and by Mr R. Sage, Manager Park and Reserves of Marrickville Council, and Mr J. Norman, town planner of Council.

4 I note the apartment building was built under consent No. DA 16100 from Marrickville Council. It required seven rear boundary screen trees that are not yet planted. Also, this was confirmed in a later development consent DA 2006.0028 for an external rear toilet to Mr Prasad’s apartment. The screen trees of that consent have not yet been planted.

5 The area over which the subject two Camphor Laurel branches extend from No. 40 are over this rear yard area. This rear yard of Unit 5 is largely natural earth and self seeded vegetation and excavation related to the construction of the rear toilet that appears almost complete.

6 At the rear of the apartment there is also the skillion roof of a rear verandah which is partly under one of the branches of the Camphor Laurel tree. The same two branches are already the subject of approval for removal of the upper branch and pruning of the lower branch under council’s Tree Preservation Order consent reference 428008 issued on the 22 November 2007.

7 We agree, Acting Commissioner Fakes and I that the upper branch the subject of this application and of that approval activates the Trees (Disputes Between Neighbours) Act 2006 under cl 9(2)(d) due to the dead core of the riser branch and damage to it from previous pruning plus the poor attachment of the subject branch that overhangs the courtyard of Unit 5 No. 30. We agree with the determination by Marrickville Council and make a similar order in this application.

8 In regard to the second branch that is lower than the first one, there is some concern over its attachment at the trunk and we make a similar order in this application to the council’s approval to prune the branch. The pruning should take place at the location where it crosses the boundary between No. 40 and Unit 5 No. 30. Pruning it at this location will reduce the weight of the branch and minimise any risk of failure due to the poor attachment at the trunk.

9 Preserving the first part of the lower branch where it is above No. 40 Audley Street will retain important screen branches that protect the privacy of No. 40 from another apartment building at No. 32 Livingstone Road. This means at least the first 3 m of this lower branch shall remain intact, together with the small branches growing from it that provides the vegetative screening referred to above.

10 There is disagreement between the parties on access to remove the subject branches. Mr Prasad accepts access into his rear yard to drop the branches but wants them taken out over or through a temporary opening in the fence of No. 40 to Audley Street.

11 In our opinion it is much more efficient to remove the branches via No. 30 Livingstone Road once they are dropped into the courtyard of Unit 5 No. 30. The branch thicknesses are not very great and as a result they would be cut easily into small lengths for removal via No. 30 Livingstone Road.

12 The respondent had already agreed to this work by virtually having made application to the council under the Tree Preservation Order and received consent for the work and subsequently had obtained quotes.

13 In regard to the Ficus Benjamina tree we note it is displacing the rear fence against which it sits and it should be removed while it is still young. The council Tree Preservation Order does not apply to that tree and with the existing and potential damage it should be removed. It appears the work has only been held up by this application and disagreement on access.

14 At the on-site hearing we proposed to require replacement of the tree by ordering the applicant to plant the screen and canopy trees required in the council’s DA Consents. However, after further considering the terms of the Trees (Disputes between Neighbour) Act 2006, we have concluded that there is no power to order tree replacement on land other than the property that is the subject of the application.

15 The orders of the Court are:

1. The application is granted.
2. The removal of one branch and the pruning of another in the Camphor Laurel tree shall proceed as approved by Council in the tree preservation order consent dated 22 November 2007 with the pruning points to be as marked in red on the photos in Annexure A hereto. The photos are taken from the respondent’s backyard at 40 Audley Street.
3. The Ficus Benjamina tree is to be removed and the stump to be poisoned.
4. The work to be carried out by an Arborist with AQF Level 3 qualifications and the appropriate insurances. The work to be carried out to the Australian Standard AS4373.2007.
5. Free and unencumbered and unhindered access to carry out the works is ordered via the courtyard of Unit 5 No. 30 Livingstone Road and the common property of the apartment complex. The applicant or owner of No. 30 Livingstone Road and Unit 5 within it shall be given two weeks written notice of the commencement of the works and suitable arrangements for access are to be allowed within that time.
6. The costs of the works to be paid by the respondent.

___________________

K G Hoffman
Commissioner of the Court

J. Fakes
Acting Commissioner of the Court
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