Gray & Anor v Ward [2010] NSWLEC 1276

Land and Environment Court of New South Wales

CITATION : Gray & Anor v Ward [2010] NSWLEC 1276

APPLICANTS B & J-A Gray PARTIES : RESPONDENT R Ward

FILE NUMBER(S) : 20995 of 2009

CORAM: Moore SC - Hewett AC

KEY ISSUES: TREES (NEIGHBOURS) :- Remitter after appeal under s 56A

LEGISLATION CITED: Land and Environment Court Act 1979, s 56A Trees (Disputes Between Neighbours) Act 2006

CASES CITED: Gray v Ward [2010] NSWLEC 1056 Gray v Ward [2010] NSWLEC 166

DATES OF HEARING: 12 October 2010

EX TEMPORE JUDGMENT DATE : 12 October 2010

APPLICANTS In person LEGAL REPRESENTATIVES: RESPONDENT In person

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

MOORE SC HEWETT AC

12 October 2010

20995 of 2009 Gray & Anor -v- Ward

JUDGMENT This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1 COMMISSIONERS: On 24 March 2010, Fakes C gave a decision (see Gray v Ward [2010] NSWLEC 1056) in which she declined an application made by Dr. and Mrs Gray for an order for removal of three trees on their neighbour's property (owned by Mr. Ward). That decision was subsequently appealed pursuant to s56A of the Land and Environment Court Act 1979 and heard and determined by Biscoe J on 6 September (see Gray v Ward [2010] NSWLEC 166). 2 His Honour upheld the appeal and remitted the matter to be determined by a Commissioner. The Chief Judge of the Court has appointed us to carry out the hearing on the remitter. That hearing has taken place as a hearing de novo and much of the evidence that was put before Fakes C has been re-tendered in the remitted hearing. 3 In addition some further material has been tendered – including part of an affidavit by Dr. Gray dated 5 August 2010; a letter dated 13 August 2010 from Bradshaw Tree Services Pty Limited; and a photograph, tendered by Mr. Ward, showing him holding live branches that, on his uncontradicted evidence, had fallen from the tree that had been numbered Tree 3 in the report by an arborist, Mr Kyle Hill. This report is in evidence in these proceedings and was prepared in March 2010 for Dr. and Mrs Gray. 4 We have carefully examined all three of the trees and have looked from the Gray's side of the fence between the properties at what is the condition of all three trees and what are the target areas under the trees for branches falling from them. As part of that process in moving around Mr. Ward's garden, we have observed considerable amounts of deadwood (including deadwood of up to approximately 50 mm in diameter) that it is reasonable to infer has fallen from these trees. 5 Although the Court has traditionally proceeded in applications under the Trees Disputes Between Neighbours Act 2006 (the Act) with what might be described as a "presumption in favour of preservation of the trees", if that were to be a reasonable course of events, we have concluded: + first, for reasons that we will outline, that we have jurisdiction with respect to each of the three trees (a relevant test being satisfied in each instance under s10(2) of the Act); and + second, as a matter of discretion (taking into account the matters set out in s12 of the Act) that it would be appropriate to order the removal of all three trees. 6 With respect to the trees, we have concluded that we have jurisdiction because in each instance the size and location of the falling deadwood is in our view likely to cause injury to a person. In the case of Trees 1 and 3 that risk arises on both the Gray and Ward properties and with respect to Tree 2 that risk particularly arises on the Ward property. With respect to Tree 3, we are also separately satisfied that branches falling from it have damaged the Gray's property and that is an additional basis for enlivening our jurisdiction. 7 We now turn to the matters that are required to be considered under s12 of the Act. We are satisfied, on our inspection of the trees and the report of Mr. Hill, that each of the three trees has suffered, at the time of the 1991 storms and high winds that went through the vicinity, significant damage to the upper crown. We are satisfied on the basis of Mr. Hill's report that there are also a number of significant hollows in the trees. We have looked at all three of the trees and, although they are all of varying ages to some extent and, certainly, current condition, we are satisfied that Tree 1 (being the most southern of the three trees) is in poorer condition than the other two. 8 We have also considered what are likely to be the consequences, if we were to only order the removal of one or two of the trees, of the opening up and exposure of any of the three trees that might remain to additional wind stresses as a consequence of the removal of canopy protection from the other trees. We are satisfied that, given the damage that these trees have sustained in the past and the comments contained in the Bradshaw Tree Services letter, that it would be an unacceptable risk only to order the removal for example of Trees 1 and 3 to leave Tree 2 (that is the tree that exposes the Gray's property to the least risk) standing because of the risk to that tree of a sudden significant increase in exposure to winds. 9 The consequence of all of that is that we are satisfied that it is appropriate to order: 1. all three trees the subject of the application are to be removed; 2. such removal is to be undertaken by an arborist with at least AQF level III qualifications and appropriate WorkCover insurances; 3. to the extent that it is necessary to give effect to the removal, the applicants are to provide access, including aerial access, through their property on reasonable notice, at a reasonable hour of the day, and with the applicants have the opportunity to supervise such access if it is required; 4. the trees are to be removed at the expense of the respondent; and 5. such removal is to be effected within 90 days of these orders.