Land and Environment Court of New South Wales CITATION : Yari v Bugden & Anor [2009] NSWLEC 1151 APPLICANT Monica Yari PARTIES : RESPONDENT G B Bugden and P B Bugden FILE NUMBER(S) : 20090 of 2009 CORAM: Thyer AC KEY ISSUES: TREES (NEIGHBOURS) :- Consent Orders made for remval of tree and payment of some costs by the applicant. LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 DATES OF HEARING: 28/04/2009 EX TEMPORE JUDGMENT DATE : 28 April 2009 APPLICANT Monica Yari, litigant in person LEGAL REPRESENTATIVES: RESPONDENT G B Bugden and P B Bugden, litigants in person JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Thyer AC 28 April 2009 20090 of 2009 Monica Yari v G B Bugden and P B Bugden JUDGMENT The extemporaneous decision was given on 28 April 2009. It has been revised and edited prior to publication. 1 ACTING COMMISSIONER: A large Eucalyptus tree is growing on the western side of the front yard of 36 Watts Road, Callala Beach, with a portion of the trunk over the common boundary of the adjoining property. Mr G Bugden and Mr P Bugden are the owners of 36 Watts Road. 2 Mr and Mrs Yari are the owners of 34 Watts Road, Callala Beach, the adjoining property to the west. Mrs Yari makes an application to the Court requesting the owners of the tree take measures to ensure no further damage is caused and that they pay compensation for monies spent. 3 The tree is a rough barked Eucalypt about 20 m tall, with crown spread of about 20 m and trunk diameter of about 0.6 m. It appears to be in good condition. It is one of a number of large Eucalyptus trees on the Bugdens' property. Those trees are likely to be remnant native trees. 4 The Bugdens have owned their property since 1975. Their house is set well back on the block, and has a steep "A" frame metal roof. They say the roof has not been damaged by tree branches. 5 The Yaris built their house under the tree in 2000. The house could have been located well clear of trees, but was built towards the front of the block in keeping with other more recently built houses in the street. Also, the house was built on a concrete slab, and with a low pitched concrete tile roof, also similar to other modern houses in the street. 6 The roof of the Yaris' house has been damaged numerous times by falling branches, and most of the branches have been live. They have carried out some pruning to reduce the risk, but are still concerned that damage will occur. Also the tree has a very large root visible at the base of the tree, growing towards their house which is only about 1 m distant. 7 When assessing an application under the Trees (Disputes Between Neighbours) Act 2006 the Court must be satisfied that one or more of the four tests in s 10(2) (a) and (b) of the Act are met by each tree before making an order regarding that tree. These tests are: Has the tree caused damage to the applicant's property ? Is the tree now causing damage to the applicant's property ? Is the tree likely in the near future to cause damage to the applicant's property ? Is the tree likely to cause injury to any person? 8 Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of: Is the damage or risk sufficiently serious to warrant the Court intervening? If so, what should the Court order? Who should pay to carry out those orders? 9 I find from the evidence provided that the tree has caused damage to the roof of Ms Yari's house on numerous occasions. The tree thus meets the first test in s 10(2)(a) of the Act, and I am able to make orders regarding it. 10 I find on the basis of discussion between the parties and examination of the dividing fence and some marker pegs, that the tree is growing principally on the Bugdens' property, with some small proportion of the trunk at ground level on the Yaris' property. 11 I note that the fence is damaged beside the tree, and that the parties agree that the fence was installed in that manner to accommodate the base of the tree when the fence was installed in 2000. 12 The parties have reached agreement on proposed orders regarding the tree and compensation. Those orders are acceptable and I will make them as consent orders. Orders 13 The application is upheld in part, and the Court makes the following Orders by consent, applying to 36 Watts Road, Callala Beach and 34 Watts Road, Callala Beach: a. The tree shall be removed and the stump ground out by 30 June 2009; b. The Bugdens shall organise the work and make payment to the contractor, but their payment for the tree work shall be capped at $970 in accordance with the quotation received on 28 April 2009; c. The Bugdens shall pay to Mrs Yari by 31 July 2009, $1,343 less half the cost they have paid for the tree work described in (a) and (b) above. The payment to Mrs Yari shall be capped at $858; d. The Bugdens shall give a copy of the receipt for the completed tree work by 31 July 2009; e. Mrs Yari shall grant access over her property for the tree work in (a) and (b) above to be carried out; f. The tree work shall take place at reasonable times, on reasonable notice. ___________________ Peter Thyer Acting Commissioner of the Court The formal orders are not included as part of this judgment but a copy may be obtained from the Court's registry upon payment of a fee. Details are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/ 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.