Strachan v Georgy

[2021] NSWLEC 1068

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Strachan v Georgy [2021] NSWLEC 1068

Hearing dates:

3 February 2021

Date of orders:

3 February 2021

Decision date:

03 February 2021

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 a suitably qualified arborist (minimum AQF level 3), with all appropriate insurances, to remove all privet trees growing against the western boundary fence (shown in the application as T1 and multiple stems of T2/T3) to no more than 20 cm above ground level. The stumps must be immediately treated with herbicide, ground out, or otherwise treated to prevent regrowth. The works are to be done in accordance with the 2016 Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’.

(3) The respondent is to give the applicant at least 2 days’ notice of the works.

(4) The applicant is to allow any access required to their property for the purpose of cleaning up debris.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to fence and lawn – not all trees have caused damage – removal of some trees to prevent further damage

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006

Texts Cited:

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

Category:

Principal judgment

Parties:

Sandra Strachan (Applicant)
Sophie Georgy (Respondent)

Representation:

S Strachan (Litigant in Person) (Applicant)
S Georgy (Litigant in Person) (Respondent)

File Number(s):

2020/300609

Publication restriction:

No

Judgment

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

Background to the application

1. Sandra Strachan (‘the applicant’) keeps a tidy garden behind her Kingswood dwelling. She is worried that trees on the neighbouring property belonging to Sophie Georgy (‘the respondent’) are damaging her lawn and displacing the boundary fence. Ms Strachan applied to the Court, pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’), seeking orders for trees along the fence line to be removed, and other trees removed or pruned. Her application also included a claim for the cost of laying new turf.

Framework for this decision

2. Before making orders for any tree under Pt 2 of the Trees Act, the Court must be satisfied that:

• The applicant has made reasonable effort to reach agreement with the tree owner (s 10(1)(a));

• The tree has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or is likely to cause injury to any person (s 10(2)).

The hearing

3. At the onsite hearing both parties were self-represented. I observed the trees, the fence along the common boundary, and Ms Strachan’s garden. I apply my own arboricultural expertise and experience to this decision.

The applicant made reasonable effort

4. Ms Strachan tried to contact Ms Georgy through the real estate agent that manages the respondent’s property. Ms Georgy declared she had received no contact prior to receiving a copy of the application to the Court. Ms Strachan included copies of letters she has sent. Ms Georgy thought they might have gone to the wrong real estate agent. I am satisfied by the material provided to the Court that Ms Strachan made reasonable effort.

The trees

5. Ms Strachan’s application shows six trees. Trees T1–T3 are privet trees growing against the boundary fence. I observed that T1 is a single tree that may have grown from the stump of a tree that was removed some time ago. Trees T2 and T3 include multiple stems that have grown from the stump of a tree removed some time ago. These privet trees are several metres tall and grow against the fence on the common boundary.

6. Trees T4–T6 are unidentified fruit trees that are well clear of the fence, although small branches at their outer crowns might reach or extend across the common boundary.

Damage

Lawn and pavers

7. Ms Strachan showed me her lawn. She has made some effort to establish and maintain the lawn. Patches of lawn near the fence are brown, but as Ms Georgy pointed out this is mostly around several small shrubs that Ms Strachan has planted along her side of the fence. Ms Strachan stated that roots of Ms Georgy’s trees grow throughout her garden, causing the brown patches of lawn. Several metres from the fence, she had lifted some pavers near her dwelling to reveal roots beneath.

8. The roots identified by Ms Strachan may be from Ms Georgy’s trees, but roots have not been matched to any particular tree. The Court cannot make orders to remove several trees on the basis that one of them, not identified, is causing damage. However, even if the roots could be matched to particular trees, I would not make any orders on this element of Ms Strachan’s application, as the pavers have not been displaced and the browning-off of small patches of lawn, if it might be found to be caused by tree roots, is not significant enough to deserve Court orders. Ms Strachan can cut these roots on her property if she wishes. Simply cutting the roots, which are relatively small, would not damage the neighbouring trees.

The fence

9. The privet trees T1–T3 grow against the boundary fence and have displaced its base, pushing it towards Ms Strachan’s property. The damage is relatively minor at present, not requiring repairs, but the degree of displacement will only increase as these privet trees continue to grow. It would be negligent to leave these trees in this situation, so orders will be made for their removal. Their stumps will require herbicide treatment or grinding to prevent regrowth.

10. The fruit trees are well clear of the fence, causing it no harm.

Other matters

11. I have considered all relevant matters at s 12 of the Trees Act, none of which provide any reason to avoid ordering removal of the privet trees.

Orders

12. As a result of the foregoing, the Court orders that:

1. The application is granted.

2. Within 30 days of the date of these orders the respondent is to engage a suitably qualified arborist (minimum AQF level 3), with all appropriate insurances, to remove all privet trees growing against the western boundary fence (shown in the application as T1 and multiple stems of T2/T3) to no more than 20 cm above ground level. The stumps must be immediately treated with herbicide, ground out, or otherwise treated to prevent regrowth. The works are to be done in accordance with the 2016 Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’.

3. The respondent is to give the applicant at least 2 days’ notice of the works.

4. The applicant is to allow any access required to their property for the purpose of cleaning up debris.

……………………………….

D Galwey

Acting Commissioner of the Court

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Amendments

12 February 2021 - Correction to cover sheet.