Welladsen v Warren

[2021] NSWLEC 1081

Land and Environment Court

New South Wales

Medium Neutral Citation:

Welladsen v Warren [2021] NSWLEC 1081

Hearing dates:

20 January 2021

Date of orders:

20 January 2021

Decision date:

20 January 2021

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders that:

(1) The application is refused.

(2) The exhibits are returned, except for Exhibit A.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – risk of damage to dwelling – overhanging tree – the tree was pruned prior to the hearing – no orders required

Legislation Cited:

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

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292

Freeman v Dillon [2012] NSWLEC 1057

Category:

Principal judgment

Parties:

Julie Welladsen (Applicant)
Louise Warren (Respondent)

Representation:

J Welladsen (Litigant in Person) (Applicant)
L Warren (Litigant in Person) (Respondent)

File Number(s):

2020/283209

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. Julie Welladsen (‘the applicant’) and Louise (Marama) Warren (‘the respondent’) have been neighbours in Milton for some time. A mature Narrow-leaved Black Peppermint (Eucalyptus nicholii) (‘the tree’) grows in Ms Warren’s garden. Its branches grew across their common boundary, overhanging Ms Welladsen’s property and her dwelling. Ms Welladsen asked Ms Warren to prune overhanging branches. When her request was not met, she applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’), seeking orders for overhanging branches to be pruned.

2. Ms Warren contacted the Community Justice Centre to arrange mediation, but Ms Welladsen refused. Ms Warren engaged an arborist to prune the tree in October 2020.

Framework for this decision

3. 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

4. Today’s hearing took place onsite, allowing observations of the tree and both properties. Ms Warren filed a report by arborist Patrick Faulconer, of Arbor Medic. Additionally, I rely on my own arboricultural experience and expertise. Both parties were self-represented.

The applicant made reasonable effort

5. Ms Welladsen stated that she had a conversation with Ms Warren where she expressed her concerns about the tree. She subsequently wrote to Ms Warren in December 2019. It became clear during the hearing that these two neighbours are not on friendly terms and have had disagreements over other matters that are not relevant here. In the circumstances, I am satisfied that Ms Welladsen’s efforts were reasonable.

The tree

6. Mr Faulconer described the tree as being 18 metres tall with a stem diameter of 800 mm. The tree is in fair condition, the canopy being slightly sparse. One limb growing towards Ms…