Walmsley v Grant [2009] NSWLEC 1330

Land and Environment Court of New South Wales

CITATION : Walmsley v Grant [2009] NSWLEC 1330

APPLICANT Graeme Walmsley PARTIES : RESPONDENT Gary Grant

FILE NUMBER(S) : 20475 of 2009

CORAM: Thyer AC

KEY ISSUES: TREES (NEIGHBOURS) :- tree removal; damage to property and risk of injury to person(s)

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

CASES CITED: Prestige Wholesale P/L v City of Burnside [2005] SAERDC 12 Yang v Scerri [2007] NSWLEC 592

DATES OF HEARING: 16 September 2009

EX TEMPORE JUDGMENT DATE : 16 September 2009

APPLICANT Graeme Walmsley (litigant in person) LEGAL REPRESENTATIVES: RESPONDENT Gary Grant (litigant in person)

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Thyer AC

16 September 2009

20475 of 2009

Graeme Walmsley v Gary Grant

JUDGMENT

1 COMMISSIONER: A mature Lemon Scented Gum (the tree) is growing in the backyard of 85 Victor Avenue, Picnic Point (the property) about 0.5 m from the back fence. Mr Grant, the owner of the property says the tree was about 15 to 20 years old when he bought the property in 1981.

2 The tree is now about 15 m tall, it has a well balanced crown, and branches on its eastern side overhang the swimming pool, spa and pavilion in the backyard of the adjoining land to the east.

3 A letter to Mr Grant from Bankstown City Council regarding the tree, dated 10 August 2009, states in part: The large Eucalypt at the rear of the property has been inspected by Council on two previous occasions. At the time of inspection in June 2008 the tree had suffered severe dieback and decline which appeared to have been due to the presence of herbicide or other chemicals which had been administered around the lower trunk through drill holes in the base. At the time of the inspection on Thursday 6th August 2009 the tree had recovered. The crown was full and healthy with minor deadwood and regrowth forming in the crown. The Eucalypt has had recent thinning in the crown and Council would allow further low branch removal of some minor limbs identified during the inspection (over the neighbouring property).