Land and Environment Court of New South Wales CITATION : Tomasetta v Gregory [2007] NSWLEC 420 APPLICANT Carlo Tomasetta PARTIES : RESPONDENTS Arthur & Dianne Gregory FILE NUMBER(S) : 20323 of 2007 CORAM: Moore C - Brown C - Thyer AC KEY ISSUES: Trees (Neighbours) - Neighbour Application :- LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 CASES CITED: Barker v Kyriakides [2007] NSWLEC 292 DATES OF HEARING: 20 June 2007 EX TEMPORE JUDGMENT DATE : 20 June 2007 APPLICANT In person LEGAL REPRESENTATIVES: RESPONDENTS No appearance JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES MOORE C BROWN C THYER AC 20 June 2007 07/20323 Carlo Tomasetta v Arthur & Dianne Gregory 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 pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) concerning a Lilly Pilly tree (the tree) located on 92 Cabarita Rd, Cabarita and owned by Mr and Mrs Gregory. 2 The application is made by Mr Tomasetta, a resident of 94 Cabarita Rd, the property to the north. 3 The tree is located approximately 1 m from the front boundary of the Gregorys' property and 1 m from the boundary with Mr Tomasetta's property. 4 We have inspected the tree and the driveway to Mr Tomasetta's property. 5 We are satisfied, from the cracking in the driveway slabs in the vicinity of the tree and the lifting of the driveway slab adjacent to the entrance apron, that the tree has caused damage to Mr Tomasetta's property. Therefore, in accordance with s 10(2)(a) of the Act, the Court's jurisdiction is enlivened. 6 Mr Tomasetta has also complained about the dropping of leaves, fruit and small amounts of deadwood from the tree. 7 The obligation that this imposes on Mr Tomasetta to clean up and remove such material is consistent with that dealt with the decision in Barker v Kyriakides [2007] NSWLEC 292. This decision dealt with the obligation falling on residents in urban areas to undertake normal maintenance of their properties to deal with such material falling from trees as part of the ordinary obligations arising from enjoying the aesthetic and environmental benefits of trees in an urban environment. 8 We are not prepared to order any intervention to the tree on the basis of its dropping of leaves, fruit and small amounts of deadwood. 9 Mr Tomasetta is concerned that the tree will damage stormwater, gas and telephone services to his property and that it has, in the past, damaged a Sydney Water sewer main that passes underneath his driveway. 10 There is no evidence which can satisfy us that there is any likelihood of damage in the near future being occasioned to the services which are services to Mr Tomasetta's house 11 Although Mr Tomasetta gave evidence that Sydney Water has had to clear tree roots from its sewer twice – the most recent being approximately three years ago – that is not matter where we can intervene. As the sewer main owned by Sydney Water is not Mr Tomasetta's property, the Court has no jurisdiction concerning it in these proceedings. 12 However, there are a number of aspects of the damage to Mr Tomasetta's driveway and the provision of a cleared space through the canopy of the tree through which the electricity connection to Mr Tomasetta's house can pass which are appropriate for us to propose orders be made. 13 In this case, the respondents have not attended the hearing. They will be provided with a draft of the Court's orders; a copy of these reasons for decision together with the opportunity to write to advise the Registrar, within 14 days of her writing to them, that they wish to have an opportunity to be heard to object to those orders being made. If they do wish to be heard, Mr Tomasetta will be provided with the opportunity to be heard further in response. 14 We are satisfied that the approach we should take to deal with issues of the driveway is to order that the concrete slabs, from the front fence to the front building line, be ground down to eliminate trip hazards. This grinding down is to be paid for by Mr and Mrs Gregory. This grinding is to be undertaken within 28 days of the date of the orders of the Court 15 The appropriate way to deal with that work being undertaken on Mr Tomasetta's property is to require that he is to obtain two quotations for that grinding. Within the 28 days of the provision to them of a receipted invoice for the completion of that work, Mr and Mrs Gregory are to pay an amount equal to the lower of those two quotations to Mr Tomasetta. 16 With respect to the provision of a clearance around the electricity connection to Mr Tomasetta's house, we propose to order that reduction pruning (consistent with Australian Standard 4373-2007) be undertaken so that there is 500 mm clearance around the electricity connection. That pruning is to be undertaken by an AQF Level 3 arborist with appropriate insurances. This pruning is to be paid for by Mr and Mrs Gregory. As virtually all of this pruning will take place in the airspace over Mr Tomasetta's property, a similar position will apply for obtaining quotations for the carrying out of this work as will apply to the grinding down of the trip hazards. 17 Finally, with respect to ensuring that the driveway is not further damaged, we consider it appropriate to order that the roots of the tree be pruned 400 mm into the Gregorys' property from the fence line, commencing at the front boundary of the Gregorys' property and extending westward to 5 m into the property along the boundary with Mr Tomasetta's property. 18 All roots which are less than 90 mm in diameter and are located at less than 150 mm below the surface are to be removed along that distance. 19 This work is also to be undertaken by an AQF Level 3 arborist with appropriate insurances. As this work is to be undertaken on the Gregory's property, it is work which should be arranged, carried out and paid for by them. They will be given 60 days from the date of the orders of the Court to organise and have that work carried out. Tim Moore Commissioner of the Court Graham Brown 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.