Sellick v Lyons

[2024] NSWLEC 1702

Land and Environment Court

New South Wales

Medium Neutral Citation:

Sellick v Lyons [2024] NSWLEC 1702

Hearing dates:

17 October 2024

Date of orders:

17 October 2024

Decision date:

17 October 2024

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1)   The application is granted to the extent of the following orders.

(2)   The respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3), with all appropriate insurances, to carry out the following works within 60 days of the date of these orders:

(a)   remove two banksias (Tree 1 and Tree 3) to no more than 3 metres above ground level;

(b)   prune the lemon-scented tea tree (Tree 2) to provide at least one metre of clearance between all parts of the tree and the applicant’s dwelling.

(3)   Thereafter, while any of Trees 1–3 remain, the respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3), with all appropriate insurances, to prune them in November every two years to provide at least one metre of clearance between all parts of the trees and the applicant’s dwelling.

(4)   The tree pruning and removal works in Orders (2) and (3) are to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.

(5)   The tree pruning works in Orders (2) and (3) are to be done in accordance with the guidelines of AS 4373:2007 ‘Pruning of amenity trees’.

(6)   The respondent is to give the applicant one week’s notice of the works in Orders (2) and (3).

(7)   The applicant is to allow all access necessary for the works in Orders (2) and (3) during reasonable hours of the day.

(8)   Within 90 days of the date of these orders, the respondent is to plant on her property two trees that will reach at least 6 metres in height.

(9)   The exhibits are retained.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) –damage caused by neighbouring trees – whether pruning can prevent damage – orders for tree removal and pruning

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, ss 7, 9, 10, 12

Cases Cited:

Yang v Scerri [2007] NSWLEC 592

Texts Cited:

Australian Standard, AS 4373:2007 ‘Pruning of amenity trees’

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

Category:

Principal judgment

Parties:

Steven William Sellick (Applicant)
Cindy Lee Lyons (Respondent)

Representation:

S Sellick (Self-represented) (Applicant)
M Duffy (Agent) (Respondent)

File Number(s):

2024/286019

Publication restriction:

Nil

Judgment

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

Background

1. COMMISSIONER: On the Killcare Heights property of Cindy Lyons (the respondent) and Matthew Duffy (agent for the respondent at the onsite hearing), native trees provide amenity, habitat and other values. Branches of some trees have grown close to, or against, the neighbouring dwelling where Steven Sellick (the applicant) and Susan Barwick live. Mr Sellick has applied to the Court seeking orders for the trees to be pruned and maintained to prevent damage to his dwelling.

2. At the onsite hearing, the Court inspected the trees and relevant parts of both properties. For the purposes of these proceedings, Mr Sellick is the applicant and Ms Lyons is the respondent, so their names are used throughout this judgment. The Court acknowledges that Ms Barwick and Mr Duffy are occupants of their respective dwellings with equal interests in the issues within, and the outcome of, these proceedings.

Framework for this decision

3. Pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), Mr Sellick applied to the Court for orders to prevent damage to his property as a consequence of trees on adjoining land.

4. The orders sought are orders that the Court may make according to s 9 of the Trees Act. Before making such orders, the Court must be satisfied of certain matters 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.

5. If the tests at s 10 are satisfied, the Court must consider a range of matters at s 12 of the Trees Act before determining the application.

Reasonable effort to reach agreement

6. Mr Sellick has attempted to prune the trees’ branches to the boundary line. He has sent a letter of demand to Ms Lyons. The relationship between these neighbours has become acrimonious, with little possibility that they will resolve the dispute among themselves. I am satisfied that Mr Sellick made a reasonable effort to reach agreement and that the required notice was given (s 10(1) of the Trees Act).

The trees

7. Four trees are included within the application.

• Tree 1 – Banksia marginata (silver banksia)

• Tree 2 – Leptospermum petersonii (lemon-scented tea tree)

• Tree 3 – Banksia marginata (silver banksia)

• Tree 4 – Melaleuca linariifolia (snow-in-summer)

8. They are all mature trees approximately 8–9 metres tall.

Damage to property

9. Although Tree 1 is several metres from the common boundary at its base, its stem leans towards Mr Sellick’s dwelling, which is only a metre or so from the common boundary. Approximately half of Tree 1’s foliage is on Mr Sellick’s side of the boundary. Small branches and foliage are against his roof gutter and eave, where they have caused some minor scratching to surfaces. Mr Sellick submitted that the branches move significantly in the wind and strike the dwelling. Even if the tree has only caused minor damage to this point, I am satisfied that it has caused damage and is likely to cause further damage in the near future, or within the next 12 months as per the principle at [14] in Yang v Scerri [2007] NSWLEC 592.

10. Tree 2 has a more balanced crown than Tree 1, but small branches and foliage contact Mr Sellick’s dwelling, causing minor scratching. Again, I am satisfied that Tree 2 has caused damage and is likely in the near future to cause further damage.

11. Tree 3 is similar to Tree 1, in that its stem leans towards and over the boundary and most of its foliage appears to be on Mr Sellick’s side of the boundary close to his dwelling. It has scratched the gutter and damaged gutter guard. Tree 3 has caused damage to Mr Sellick’s property and is likely in the near future to cause further damage.

12. Tree 4 appears to have no branches within a metre of Mr Sellick’s dwelling. Mr Sellick is concerned that it will be able to strike his dwelling during severe winds if branches of Tree 3 are removed. However, relying on my observations, the tree has not caused damage and is unlikely to do so in the near future.

13. Orders can be made for Trees 1–3, but the Court must first consider any relevant matters at s 12 of the Trees Act.

Relevant matters considered

14. Trees 1–3 are close to the common boundary and overhang Mr Sellick’s property, with branches and foliage in contact with his dwelling.

15. The trees make a positive contribution to environmental values and amenity. They provide shading, cooling and other ecosystem services. They contribute significantly to the landscape value of Ms Lyons’ property. They provide privacy to her dwelling. They attract birds and other fauna.

16. The form of Tree 1 and Tree 3 is such that their stems lean toward the boundary and half or more of their crowns are on Mr Sellick’s side of the boundary and within a metre of his dwelling. It seems to me that removing all branches that might strike and damage his dwelling during severe winds would leave these trees with poor crown form and with insufficient foliage to remain viable. To prevent damage in the near future, they should be removed. Ms Lyons submitted that these two trees might continue to contribute to her privacy if reduced to their lower stems and allowed to reshoot. The orders will allow for this. Planting two replacement trees will, over time, replace the trees’ benefits including the privacy they provide.

17. Due to its crown form and location, Tree 2 can be pruned to prevent damage.

18. Mr Sellick has not contributed to the likelihood of trees damaging his property through either his actions or omissions, so Ms Lyons will bear the cost of the works.

Orders

19. The Court orders:

1. The application is granted to the extent of the following orders.

2. The respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3), with all appropriate insurances, to carry out the following works within 60 days of the date of these orders:

1. remove two banksias (Tree 1 and Tree 3) to no more than 3 metres above ground level;

2. prune the lemon-scented tea tree (Tree 2) to provide at least one metre of clearance between all parts of the tree and the applicant’s dwelling.

3. Thereafter, while any of Trees 1–3 remain, the respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3), with all appropriate insurances, to prune them in November every two years to provide at least one metre of clearance between all parts of the trees and the applicant’s dwelling.

4. The tree pruning and removal works in Orders (2) and (3) are to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.

5. The tree pruning works in Orders (2) and (3) are to be done in accordance with the guidelines of AS 4373:2007 ‘Pruning of amenity trees’.

6. The respondent is to give the applicant one week’s notice of the works in Orders (2) and (3).

7. The applicant is to allow all access necessary for the works in Orders (2) and (3) during reasonable hours of the day.

8. Within 90 days of the date of these orders, the respondent is to plant on her property two trees that will reach at least 6 metres in height.

9. The exhibits are retained.

……………………………….

D Galwey

Acting Commissioner of the Court

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Decision last updated: 31 October 2024