Smith v Ferrero [2022] NSWLEC 1352

Land and Environment Court New South Wales

Medium Neutral Citation: Smith v Ferrero [2022] NSWLEC 1352 Hearing dates: 23 March 2022 Date of orders: 12 July 2022 Decision date: 12 July 2022 Jurisdiction: Class 2 Before: Galwey AC Decision: See orders at [41]. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – damage to property – risk of injury – orders for removal of one tree – application for compensation refused – application to remove bamboo refused Legislation Cited: Dividing Fences Act 1991, ss 3, 13A Trees (Disputes Between Neighbours) Act 2006, Pt 2 ss 6, 7, 9, 10, 12 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Texts Cited: Safe Work Australia, 'Guide to managing risks of tree trimming and removal work', 2016 Category: Principal judgment Parties: Warwick Smith (Applicant) Anne Ferrero (Respondent) Representation: Counsel: W Smith (Self-represented) (Applicant) A Ferrero (Self-represented) (Respondent) File Number(s): 2021/329825 Publication restriction: No

Judgment

Background to the application 1. COMMISSIONER: On the high side of Pittwater Road in Gladesville, a tall Sydney Blue Gum (Eucalyptus saligna) grows in the front setback of the property belonging to Anne Ferrero (the Respondent), close to the common boundary shared with her neighbour, Warwick Smith (the Applicant). Further along the boundary Ms Ferrero has bamboo growing in a narrow garden bed. Mr Smith alleges that: * The gum tree has pushed a timber paling fence out of alignment; * The gum tree's roots have displaced the low brick wall next to the paling fence; * The gum tree's roots damaged a water pipe beneath his driveway; * The gum tree's roots have damaged his driveway; * Cracks appearing in parts of his dwelling might be caused by the tree; * The bamboo is spreading across the boundary, requiring work to prevent its growth; * The bamboo has pushed the timber paling fence out of alignment; and * The bamboo drops copious amounts of debris onto his property. 1. Mr Smith has applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), seeking orders for: * Ms Ferrero to remove the gum tree at her expense; * Ms Ferrero to arrange and pay for repairs to the timber paling fence; * Ms Ferrero to arrange and pay for repairs to the low brick wall; * Ms Ferrero to pay for repairs to the driveway; and * Ms Ferrero to install a root barrier along the boundary to prevent further spread of the bamboo in his property. 1. The hearing took place onsite. Mr Smith and Ms Ferrero were each self-represented. Mr Smith relied upon, among other material, a report by C & G Building Consultants dated 23 May 2020. Ms Ferrero relied upon a report by consulting structural engineer Milton Webster, dated 2 February 2022, and a survey plan prepared by Brian Dewing of Burton & Field Pty Ltd dated 24 May 2011. Having made observations of the Sydney Blue Gum and the bamboo during the onsite hearing, I also rely on my own arboricultural expertise.