Byrnes v Ryan (No 3) [2022] NSWLEC 1177

Land and Environment Court New South Wales

Medium Neutral Citation: Byrnes v Ryan (No 3) [2022] NSWLEC 1177 Hearing dates: 30 March 2022 Date of orders: 30 March 2022 Decision date: 30 March 2022 Jurisdiction: Class 2 Before: Galwey AC Decision: See orders at [17]. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – damage or injury caused by trees – change of circumstances – orders for pruning Legislation Cited: Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 10, 12 Cases Cited: Byrnes v Ryan [2021] NSWLEC 1076 Byrnes v Ryan (No 2) [2022] NSWLEC 27 Texts Cited: AS 4373–2007 Pruning of amenity trees, Standards Australia 2007 Safe Work Australia 'Guide to managing risks of tree trimming and removal work', 2016 Category: Principal judgment Parties: Barbara Byrnes (Applicant) Rosemary Ryan (First Respondent) David Ryan (Second Respondent) Representation: B Byrnes (Self-represented) (Applicant) J Bristow (Solicitor) (Respondents)

Solicitors: Finn Roache Lawyers (Respondents) File Number(s): 2021/362007 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. COMMISSIONER: A wild plum (Harpephyllum caffrum) (the tree) grows in the garden of Rosemary and David Ryan (the respondents) in the coastal town of Forster. The tree is close to the respondents' common boundary shared with Barbara Byrnes (the applicant); branches on its southern side extend across the boundary and overhang Ms Byrnes' land. 2. Ms Byrnes applied to this Court in 2020 seeking orders for the tree to be removed or pruned. Douglas AC dismissed the application, finding there was no reason to interfere with the tree: it had not caused damage, nor was it likely to cause injury or damage in the near future. Douglas AC's reasons are explained in Byrnes v Ryan [2021] NSWLEC 1076. 3. After a branch fell from the tree into her garden, Ms Byrnes again applied to the Court in December 2021, pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), seeking orders for the tree's removal, for replacement of the boundary fence, and for compensation for damage to a clothesline and a vegetable garden. The Ryans sought to have the application struck out, given that the Court had already determined the matter less than 12 months earlier. Moore J found that the fallen branch was not insignificant, therefore circumstances have changed and there was no reason for striking out Ms Byrnes' application: Byrnes v Ryan (No 2) [2022] NSWLEC 27.