Gauci v Vaughan [2023] NSWLEC 1594

Land and Environment Court New South Wales

Medium Neutral Citation: Gauci v Vaughan [2023] NSWLEC 1594 Hearing dates: 18 July 2023 Date of orders: 11 October 2023 Decision date: 11 October 2023 Jurisdiction: Class 2 Before: Galwey AC Decision: See orders at [37]. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – damage caused by neighbouring trees – risk of damage and injury – whether tree removal is required – whether the boundary fence is functional – orders for tree pruning and fence repair Legislation Cited: Trees (Disputes Between Neighbours) Act 2006, Pt 2 ss 7, 9, 10, 12 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Yang v Scerri [2007] NSWLEC 592 Texts Cited: Safe Work Australia, Guide to managing risks of tree trimming and removal work (July 2016) Standards Australia, AS4373-2007 Pruning of amenity trees Category: Principal judgment Parties: Andrew James Gauci (Applicant) Dayle Joan Vaughan (Respondent) Representation: Counsel: A Gauci (Self-represented) (Applicant) D Vaughan (Self-represented) (Respondent) File Number(s): 2023/148094 Publication restriction: Nil

Judgment

Background 1. COMMISSIONER: Andrew Gauci (the applicant), of Seven Hills in western Sydney, has applied to the Court seeking orders relating to four trees growing on the neighbouring property of Dayle Vaughan (the respondent). Pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), Mr Gauci seeks the following orders (as copied from the application): 1. The respondent, permit access to property to inspect four trees by Arborist and applicant. The respondent provides contact telephone number and email address for the applicant to make arrangement to inspect trees on reasonable notice. 2. The respondent, at her expense, remove four trees to ground level, stump grind and poison roots. The respondent provides the applicant with at least 14 days' notice of proposed date of these works. Compliance of works to be overseen by Blacktown City Council (Council) or undertaken by Council if the respondent fails to comply with this order. 3. Following the tree removal works, the respondent engages a contractor, with suitable qualifications and insurance, to rectify damage caused to common boundary fence by the tree. 4. The respondent pays the applicant $1,505.00 for itemised costs for the applicant's costs incurred making this application. 5. Alternatively, in the event that the Court fails to grant the tree removal orders sought, the applicant seeks orders for compensation payable by the respondent, for damages including diminution in value to the applicant's property in the sum of $150,000.00 1. The hearing took place onsite, allowing the Court to inspect the trees and both properties. 2. In support of his application, and the orders that he seeks, Mr Gauci relies upon the report of Trevor Hawkeswood, who inspected the four trees from within Mr Gauci's property on 7 February 2023. 3. Before proceeding to the relevant matters at hand, I note here that, as in many tree disputes, the parties have a long history of disagreement. In this case, the parties both refer to a fence dispute involving Mr Gauci's father, now deceased, going back before 2000. Unless that history demonstrates that the actions or omissions of the applicant or the respondent have contributed to the present situation where it lies within the jurisdiction of the Trees Act, or provides other information to be considered within framework of the Trees Act, that history is largely irrelevant. Certainly, in the historic descriptions filed with the Court, which I have read in full, I found little of consequence that would influence the need for, or the nature of, any orders to be made in these proceedings.