Gardiner v Bisley [2021] NSWLEC 1176

Land and Environment Court New South Wales

Medium Neutral Citation: Gardiner v Bisley [2021] NSWLEC 1176 Hearing dates: 11 February 2021 Date of orders: 13 April 2021 Decision date: 13 April 2021 Jurisdiction: Class 1 Before: Douglas AC Decision: See final orders at [86] Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to property – apprehension of additional damage to property – leaves, sticks, and other refuse from trees falling on applicant's land – is risk of genuine injury foreseeable Legislation Cited: Environmental Planning and Assessment Act 1979 s 12 Trees (Disputes Between Neighbours) Act 2006 ss 7, 10, 12 Uniform Civil Procedure Rules 2005 sch 7 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Black v Johnson (No 2) [2007] NSWLEC 513 Robson v Leischke (2008) 72 NSWLR 98; (2008) 159 LGERA 280 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Stevens v Russell [2016] NSWLEC 1233 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: Joel Gardiner (Applicant) Max Bisley (Respondent) Representation: J Gardiner (Litigant in person) (Applicant) M Bisley (Litigant in person) (Respondent) File Number(s): 2020/301573 Publication restriction: No

Judgment

Background 1. Mr Gardiner, the applicant, lives in Mount Pleasant, a suburb high up the escarpment overlooking the Illawarra region, which is characterised by large trees, and lush vegetation. Approximately 13 trees are subject to the dispute, with one large Eucalyptus pilularis (Blackbutt), being the primary focus. He submitted an application, pursuant to s 7 of Part 2 of the Trees (Disputes between Neighbours) Act 2006 (the Act) seeking the removal of a row of trees, and replacement of a wall. 2. Mr Gardiner, in a letter to Mr Bisley, the respondent, dated 28 November 2016, introduced himself as "your new neighbour", and raised concerns about the large gum tree (the Blackbutt) overhanging his yard and house. He noted that he has been "advised that these trees are very brittle, and commonly large branches can snap off without warning". Mr Gardiner contends that "if and when this happens, it is likely to fall through the roof of the children's bedrooms", or injure anyone in its path. He requested a meeting with Mr Bisley to discuss this matter. 3. On 15 October 2018, Mr Gardiner wrote a second a letter to Mr Bisley. He advised that "two of our daughter's bedrooms have large tree limbs hanging over them, along with our entire back courtyard", and that "we worry about the safety of our children constantly." Mr Gardiner noted that "we have spoken to different tree companies who have told us that the tree is extremely dangerous" and "that gums like that can just drop a limb out of nowhere on a hot day". 4. Mr Gardiner infers that discussions have occurred between the parties since his initial letter, in saying "you have suggested that we cut down what hangs over our fence but the advice given to us by the tree companies is that this is impossible" as the extensive pruning of the Blackbutt, required to achieve this, would leave the tree unbalanced. He adds that his retaining wall near the trees is damaged and cracking "due to the sheer weight and growth of the tree", but that "our main concern is the danger of it". 5. Mr Bisley, a solicitor, wrote to Mr and Mrs Gardiner, on 28 February 2019, on a letterhead of his practice. He noted that he has "no objection to the overhanging branches of trees being lopped back to level of your concrete retaining wall", subject to the Gardiner's getting a letter from Wollongong City Council (Council) granting permission for the works, or advising that such permission is not required. He also advised that his approval was subject to eight conditions, relating to choice of contractor, access and refuse removal arrangements, and notice required prior to commencement of works. Mr Bisley required written agreement to confirm acceptance of the aforementioned terms and conditions, and committed to providing the Gardiner's with payment covering half the quoted price, immediately upon receiving written confirmation of the applicant's satisfaction with the works, and provided that they were completed "in accordance with the arrangements set out above".