Smith v Patel Family Australia Pty Ltd

[2023] NSWLEC 1194

Land and Environment Court

New South Wales

Medium Neutral Citation:

Smith v Patel Family Australia Pty Ltd [2023] NSWLEC 1194

Hearing dates:

20 April 2023

Date of orders:

20 April 2023

Decision date:

20 April 2023

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1)   The application is granted.

(2)   Within 30 days of the date of these orders, the respondent is to engage ‘Above the Rest Tree Care’ to remove and mulch the tree identified in their report dated 28 September 2022.

(3)   Within 24 hours of the date of these orders, the respondent is to transfer into the applicant's solicitor's trust account the sum of $4,850.00 and irrevocably authorise the applicant's solicitor to pay the ‘Above the Rest Tree Care’ invoice upon receipt for completion of the removal of the tree and the mulching of the tree.

(4)   The applicant is to retain the tree mulching.

(5)   Within 24 hours of the date of these orders, the respondent is to pay compensation for the applicant to the sum of $3,049.00 into the applicant's solicitor's trust account.

(6)   Tree removal works are to be done in accordance with Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.

(7)   Within 3 months of the date of these orders, the respondent is to plant 2 native eucalypts (species indigenous to the area) at suitable locations on their property, at least 3 metres from any boundary.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – damage caused by neighbouring tree – risk of damage and injury – tree removal ordered – consent orders

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 10, 12

Cases Cited:

Breen v Caronna [2008] NSWLEC 293

Texts Cited:

Safe Work Australia, Guide to managing risks of tree trimming and removal work, 2016

Category:

Principal judgment

Parties:

Jane Pamela Smith (Applicant)
Patel Family Australia Pty Ltd (First Respondent)
Sam Patel (Second Respondent)

Representation:

M Smith (Solicitor) (Applicant)
No appearance (Respondents)

Solicitors
Kennedy & Cooke Lawyers (Applicant)

File Number(s):

2023/19372

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 27 September 2021, a branch fell from a gum tree growing within the grounds of Tabourie Lake Motor Inn, a property owned by Patel Family Australia Pty Ltd and Sam Patel (together, the respondent). The branch caused damage to a boundary fence and to a shed on the adjoining property of Jane Smith (the applicant). An arborist assessed the tree, found it to be hazardous, and recommended its removal. After the applicant was unsuccessful in attempts to have the tree removed, she applied to the Court on 19 January 2023, pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), seeking orders that would result in the tree’s removal and the payment of some compensation. A final hearing was scheduled for today, 20 April 2023. Yesterday, the parties came to an agreement and proposed consent orders. Before the Court can make those orders, it must be satisfied that they are orders that can be made within the jurisdiction of the Trees Act (Breen v Caronna [2008] NSWLEC 293 at [6]–[7]).

2. The hearing took place onsite, allowing the Court to inspect the tree, both properties, and the surrounding environment. The matter was heard ex parte, as the respondent did not appear.

The tree

3. A Southern Mahogany (Eucalyptus botryoides) stands on the respondent’s property, a few metres from the common boundary with the applicant’s property. The tree is approximately 25 metres tall with an 800-mm stem diameter. Part of a large broken branch remains on the ground near the tree. The broken branch stub remains on the tree’s stem. The branch was apparently overextended and reached above the applicant’s property. It is not disputed that the branch damaged the fence along the common boundary and the roof of the applicant’s shed.

4. Other large branches higher on the stem are also overextended and are likely to fall onto the applicant’s property, with further damage the inevitable result. Due to their form, with foliage mostly at their ends, these branches are unsuited to reduction pruning, so require removal back to the stem. Removing these branches would leave a tall, exposed crown with diminished ability for mass-damping. Pruning might reduce the crown area, but it could result in greater loads experiences at the tree’s root crown. As noted by Steve Wilson, the arborist engaged by the applicant to assess and report on the tree, the area around the tree retains water. The tree’s stem leans noticeably towards the applicant’s property. The risk of tree failure toward her property is sufficient enough to require mitigation, and tree removal seems the reasonable and practical way to remove the risk.

Proposed consent orders are orders that the Court can make

5. The applicant has written to the respondent and sought mediation. I am satisfied that the applicant has made a reasonable effort to reach agreement with the respondent (s 10(1)(a) of the Trees Act).

6. The tree has caused damage to the applicant’s property. It is likely to cause further damage in the near future. It is also likely to cause injury. According to s 10(2) of the Trees Act, the Court can make orders in these proceedings.

7. I have considered all relevant matters at s 12 of the Trees Act. Despite the tree’s contribution to local amenity and environmental values, removal is the only reasonable option for mitigating the identified risk. The tree’s values can be replaced in future by replanting.

8. The applicant originally sought an order for costs. Should they pursue costs in future via a Notice of Motion, I note for reference here that the respondent has taken little or no action in response to the applicant’s reasonable requests for action. Furthermore, the respondent waited until the day before today’s final hearing to agree to remove the tree and to sign the consent orders, with no apparent obstacle to reaching this agreement earlier.

Orders

9. As a result of the foregoing, the Court makes the following orders (2)–(5) by consent. In addition, the Court has added orders (1), (6) and (7).

1. The application is granted.

2. Within 30 days of the date of these orders, the respondent is to engage ‘Above the Rest Tree Care’ to remove and mulch the tree identified in their report dated 28 September 2022.

3. Within 24 hours of the date of these orders, the respondent is to transfer into the applicant's solicitor's trust account the sum of $4,850.00 and irrevocably authorise the applicant's solicitor to pay the ‘Above the Rest Tree Care’ invoice upon receipt for completion of the removal of the tree and the mulching of the tree.

4. The applicant is to retain the tree mulching.

5. Within 24 hours of the date of these orders, the respondent is to pay compensation for the applicant to the sum of $3,049.00 into the applicant's solicitor's trust account.

6. Tree removal works are to be done in accordance with Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.

7. Within 3 months of the date of these orders, the respondent is to plant 2 native eucalypts (species indigenous to the area) at suitable locations on their property, at least 3 metres from any boundary.

D Galwey

Acting Commissioner of the Court

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Decision last updated: 03 May 2023