Land and Environment Court of New South Wales CITATION : Breen & Anor v Caronna & Anor (No 2) [2008] NSWLEC 1424 APPLICANTS Murray Breen and Helen Breen PARTIES : RESPONDENTS Vince Caronna and Maria Caronna FILE NUMBER(S) : 20684 of 2008 CORAM: Moore C - Thyer AC Discretion - Trees (Neighbours) :- KEY ISSUES: Proposed consent orders Consideration of merits of proposed orders Proposed orders modified LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 CASES CITED: Breen & Anor v Caronna & Anor [2008] NSWLEC 293 DATES OF HEARING: 25 September and 20 October 2008 EX TEMPORE JUDGMENT DATE : 20 October 2008 APPLICANTS Mr J Trebeck, barrister LEGAL REPRESENTATIVES: RESPONDENTS Mr D Legg, solicitor Burridge & Legg JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES MOORE C THYER AC 20 October 2008 20684 of 2008 Breen & Anor v Caronna & Anor JUDGMENT This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. The consequence of the Court's decision in this application is the making of formal orders pursuant to s 9 of the Trees (Disputes Between Neighbours) Act 2006 . These orders are not reproduced as part of this decision but a copy the Court's Orders may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/ 1 COMMISSIONERS: Mr and Mrs Breen made an application to the Court on 14 July 2008 seeking the removal of three trees located on their neighbours' property at 6 Aranda Drive, Frenchs Forest. 2 The three trees located on the neighbouring property, owned by Mr and Mrs Carrona, from the rear of the property toward the front, are a Coastal Redwood, a Golden Cypress and a Mexican Pine (as noted on the attached diagram). 3 After the lodgement of the application, discussions took place between the legal representatives of the parties and it was proposed, at the first hearing on site on 25 September, that the Court agree to consent orders which had been settled between the parties. These proposed orders involved removal of all three trees and the payment of compensation from the Caronnas to the Breens for the damage to the Breens' driveway. 4 During the course of that view, we indicated that there were a range of matters pursuant to ss 9 and 12 of the Trees (Disputes Between Neighbours) Act 2006 and jurisdictional questions pursuant to s 10 of the Act which we were obliged to consider and that it was not an automatic requirement that we give effect to the consent agreement reached between the parties. 5 As a consequence of that; subsequent procedural discussions and a series of rulings made by Commissioner Moore at a mention on 26 September, the matter was referred to the duty judge for consideration of a Notice of Motion by the Breens seeking to remove the matter from us and for the entry of the consent orders. On 17 October 2008, Sheahan J declined to make those orders (see Breen & Anor v Caronna & Anor [2008] NSWLEC 293). 6 As a consequence, the resumed hearing took place on 20 October 2008 as scheduled. During the course of this hearing, we indicated to the legal representatives of the parties that we did not propose to question the financial orders that had been agreed to between the parties and that we were satisfied, on the basis of our inspection and the documentary evidence that had been lodged, that the Coastal Redwood and the Golden Cypress were the cause of damage to the Breen's driveway. 7 From our inspection of that damage, we were satisfied that the necessary tests under s 10(2)(a) of the Act had been met and that, as a question of exercise of the Court's discretion under s 9 (having had regard to relevant matters in s 12 of the Act), it was appropriate to give effect to the agreement between the parties that those two trees be removed. However, we raised the issue of possible orders pursuant to s 9(j) for replanting to replace the trees to be removed. 8 We also indicated that we had some concerns about the language that was used by Mr and Mrs Breen's arborist as to whether or not the jurisdictional tests under s 10(2)(a) had been satisfied with respect to the Mexican Pine. Further, we indicated, if we were satisfied that they had been met, that as a matter of discretion the damage to the driveway caused by the roots of that tree, if such damage had been so caused, might not be sufficient to warrant our exercise of discretion for its removal. 9 At this point, we were proffered but did not need to rule on the admissibility of a report prepared by Mr A Scales, an arborist, on behalf of the Caronnas. However, we note that, despite specific directions being made on 22 August in terms of Direction 14 of the Standard Tree Directions of the Court requiring the acknowledgement of the relevant provisions in the Uniform Civil Procedure Rules 2005 and the expert witness schedule to those rules, Mr Scales' report did not acknowledge those documents and, indeed, his report specifically noted that he had not been provided with any documents. Although we were not obliged to rule on the admissibility of that report, we do note that we have, earlier today, rejected a report that failed to comply with that direction. Had we had to rule, we would have ruled in admissible this report on this occasion. 10 Following a short adjournment to consider the matters we raised concerning the Mexican Pine, the parties have now reached a new agreement that does not require the removal of this tree (T 3 - marking coloured red by us on the attached diagram) and have agreed to orders for compensatory plantings (pursuant to s 9(j) of the Act) of two callistemons, of the Kings Park variety, to be located on the Caronnas' property and that the compensation arrangements remain as they were originally proposed. 11 Having also raised, with the legal representatives of the parties, the desirability of an order for access to permit the removal of the two trees in terms that permit such access to the Breens' property – on reasonable notice, at a reasonable hour of the day and with them having the opportunity to supervise access – and this also being agreed to, we are satisfied that the orders proposed to us as consent orders (as further amended) are appropriate orders to be made. Tim Moore Commissioner of the Court Peter Thyer Acting Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.