Gardiner v Austin [2022] NSWLEC 1417

Land and Environment Court New South Wales

Medium Neutral Citation: Gardiner v Austin [2022] NSWLEC 1417 Hearing dates: 24 May 2022 Date of orders: 8 August 2022 Decision date: 08 August 2022 Jurisdiction: Class 2 Before: Douglas AC Decision: See Orders at [26]. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – Is the tree causing damage to concrete slab, pavers and fence – roots exposed – are exposed roots a risk to safety Legislation Cited: Trees (Disputes Between Neighbours) Act 2006, ss6, 7, 9, 10, 12 Cases Cited: Stevens v Russell [2016] NSWLEC 1233 Yang v Scerri [2007] NSWLEC 592 Texts Cited: AS4373-2007 Pruning of amenity trees Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work 2016 Category: Principal judgment Parties: Maree Gardiner (Applicant) Liam James Austin (Respondent) Representation: M Gardiner (Self-represented) (Applicant) N Lynch (Agent) (Respondent) File Number(s): 2022/76864 Publication restriction: No

Judgment

Background 1. COMMISSIONER: Maree Gardiner (the applicant) and Liam Austin (the respondent) share a side boundary between their Tookley properties, which are separated by a 1.8 m tall metal panel fence. Ms Gardiner occupies her dwelling, while Mr Austin's property is leased to tenants. 2. Trees in the respondent's property are growing close to the common boundary. One tree in the front yard (T1) has recently been removed but the applicant says its roots have caused damage to a concrete slab and pavers, and that they are a trip hazard. She claims that branches from T3 are damaging the common fence in her back yard, and that other boundary trees may also cause damage or injury. 3. Ms Gardiner tried to negotiate a settlement to rectify damage with the respondent's property agent (the agent), but communication through the agent has been slow and difficult, and a negotiated settlement appeared unlikely to occur. 4. Therefore, Ms Gardiner lodged an application with the Land and Environment Court of NSW (the Court) pursuant to s 7 of Pt 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act), seeking orders for the removal of T1 and pruning of T3, as a consequence of the damage she claims both are causing, and the risk of injury arising from the roots of T1.