Land and Environment Court of New South Wales CITATION : Aird v Frost & anor [2007] NSWLEC 707 APPLICANT I Aird PARTIES : RESPONDENTS S & M Frost FILE NUMBER(S) : 20697 of 2007 CORAM: Moore C - Thyer AC KEY ISSUES: Trees (Neighbours) - Neighbour Application :- Consent orders LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 CASES CITED: Barker v Kyriakides [2007] NSWLEC 292 DATES OF HEARING: 24 October 2007 EX TEMPORE JUDGMENT DATE : 24 October 2007 APPLICANT In person LEGAL REPRESENTATIVES: RESPONDENTS First respondent in person JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES MOORE C THYER AC 24 October 2007 07/20697 I Aird v S & M Frost 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: This is an application made pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act). 2 The application is made by Mr Aird of 44A Curzon Road, New Lambton concerning a Brush Box tree (Lophostemon confertus) (the tree) located on the adjacent property to the south at 87 Carrington Parade. 3 The application sought the removal of the tree. Had the application remained pressed, on the basis of dropping of nuts and bark from the tree, we consider that the principle enunciated in Barker v Kyriakides [2007] NSWLEC 292 (that the dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree) would have applied for the reasons discussed in that case as no special circumstances were present in this case. 4 However, the parties have agreed to the pruning of four branches which overhang Mr Aird's house. They have provided us with a marked photograph designating these branches. We are satisfied that there is sufficient likelihood of risk of injury to persons resident in the house to permit us to make consent orders founded on s 10(2)(b) of the Act for the removal of these branches. As a consequence, we will make consent orders to give effect to this agreement and will do so by reference to the marked photograph provided by the parties. 5 Therefore, the orders of the Court, by consent, are: 1. The respondent is to prune the four branches of the Brush Box tree (Lophostemon confertus) marked in Annexure A to these orders; 2. The pruning in (1) is to be undertaken by an arborist of at least AQF level 3 qualifications with appropriate insurances; 3. The pruning in (1) is to be undertaken in accordance with AS 4373-2007 Pruning of Amenity Trees; 4. The pruning in (1) is to be to the trunk collar in each instance; 5. The pruning in (1) is to be at the cost of the respondents; 6. The pruning in (1) is to be completed by the end of February 2008; 7. The applicant is to permit access to his property for the purposes of the pruning in (1) provided that this access is on reasonable notice and at a reasonable time; and 8. The applicant is permitted to supervise any such access if he wishes. 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.