Braun v Basser [2021] NSWLEC 1510

Land and Environment Court New South Wales

Medium Neutral Citation: Braun v Basser [2021] NSWLEC 1510 Hearing dates: 30 August 2021 Date of orders: 31 August 2021 Decision date: 31 August 2021 Jurisdiction: Class 2 Before: Galwey AC Decision: See orders at [51] Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – Part 2 application – neighbouring tree – application for tree removal and compensation – damage to sewer pipe and fence – risk of damage or injury – tree roots have been severed – whether the tree needs to be removed – whether actions of either party led to the need for tree removal – who should pay for tree removal – whether compensation should be ordered Legislation Cited: Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 9, 10, 12 Uniform Civil Procedure Rules 2005, Sch 7 Cases Cited: Jarrett v Hutchinson [2020] NSWLEC 1365 Joaquim v Adamson [2009] NSWLEC 1312 Yang v Scerri [2007] NSWLEC 592 Texts Cited: Safe Work Australia (2016) 'Guide to managing risks of tree trimming and removal work' Category: Principal judgment Parties: Andre Braun (Applicant) Eva Basser (Respondent) Representation: R Abesamis (Agent) (Applicant) P Nothman (Agent) (Respondent) File Number(s): 2021/213023 Publication restriction: No

Judgment

Background to the application 1. On the elevated land of Vaucluse between harbour and ocean, the tall slender form of a Cook Pine (Araucaria columnaris) ('the tree') can be seen from the surrounding landscape, even though it stands deep in the back garden of a long narrow property belonging to Eva Basser ('the respondent'). Its lower stem sweeps towards the equator, a characteristic of the species, before straightening skywards. The tree is adjacent to Ms Basser's eastern side boundary, where it pushes against the timber paling fence. 2. Andre Braun ('the applicant') owns and lives at the property to Ms Basser's east. Almost six weeks ago Mr Braun engaged a plumber to clear his sewer pipe. After some initial investigation, the plumbing contractor informed Mr Braun that some large tree roots would need to be cut. The plumbing contractor then cut large tree roots. When Mr Braun saw the cut roots, he contacted Ms Basser and he contacted Waverley Council ('Council'). A Council representative told Mr Braun that, since the tree was on private land, it did not involve them at this stage. 3. A few days later, Mr Braun engaged arborist Liam Strachan of Abnoba Arbor to inspect the tree and its roots. Mr Strachan recommended in a written report that the tree should be removed due to the risk of damage or injury from the tree falling, now that large roots had been cut near its base. 4. Mr Braun asked Ms Basser to remove the tree, offering to contribute half of the cost its removal. Ms Basser told Mr Braun his plumbing contractor, who had cut the roots, should pay for the tree's removal. No agreement could be reached. 5. Ms Basser applied to Council for consent to remove the tree. After Council inspected the tree, Council refused consent for its removal. (Ms Basser said at the hearing that she remained unaware of Council's decision on her application.) 6. Mr Braun applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 ('the Trees Act'), seeking orders for the tree's removal, repairs to the fence and for compensation. The compensation he seeks includes $5,000 for his plumbing works, which he says were required due to damage caused by the tree's roots. His compensation amount also included the cost of Mr Strachan's tree report, but this would fall into the 'costs' category rather than compensation. Should he wish to pursue the cost of reports and the like, Mr Braun would need to file a Notice of Motion to be heard by a Judge or the Registrar of the Court. 7. Mr Braun's plumbing works remain incomplete, awaiting the outcome in these proceedings.