Land and Environment Court of New South Wales CITATION : George v Conin [2007] NSWLEC 414 APPLICANTS Judith & Michael George PARTIES : RESPONDENT George Conin FILE NUMBER(S) : 20245 of 2007 CORAM: Moore C - Roseth SC - Thyer AC KEY ISSUES: Trees (Neighbours) - Neighbour Application :- LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 DATES OF HEARING: 25 June 2007 EX TEMPORE JUDGMENT DATE : 25 June 2007 APPLICANTS In person LEGAL REPRESENTATIVES: RESPONDENT In person JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES MOORE C ROSETH SC THYER AC 25 June 2007 07/20245 Judith & Michael George v George Conin 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 Camphor Laurel tree (Cinnamomum camphora) (the tree) located on 50 River Road, St Leonards. 2 The application is made by Mr and Mrs George, the owners of 47 Berry Road which is the property immediately to the north of the property where the tree is located. 3 The application seeks an order for the removal of the tree and compensation for damage to the fence between the two properties and for the costs of an arborist's report obtained by Mr and Mrs George. 4 Costs for replacing the guttering and trimming of the tree's branches overhanging the Georges' house, in the absence of receipts for this work, were not pressed as part of the claim. 5 We have carefully examined the present state of the tree. 6 Whilst there is evidence of past lightning damage and also of inappropriate pruning practices during the removal of deadwood (together in some borer damage and deadwood remaining in the more western of the leaders of the tree), we are not able to be satisfied, pursuant to the s 10(2)(a) of the Act, that the tree is likely, in the near future, to cause further damage to Mr and Mrs George's property. 7 Similarly, we cannot be satisfied that the test in s 10(2)(b) – that the tree is likely be a risk to persons – is able to be satisfied. 8 These findings leave the first two tests in s 10(2)(a) needing to be considered 9 The first of those is whether the tree has, in the past, caused damage to the Georges' property and the second is whether the tree is presently causing damage to the George's property. 10 We are satisfied, from the documentary evidence and the evidence of our inspection, that: o there is some damage to the path along the southern side of the Georges' house; o there has been some minor cracking of the walls inside the Georges' house (although we have not inspected those walls); and o there is a significant displacement of part of the fence between the properties. 11 Each of those needs to be considered in turn. 12 With respect to damage to the house, we cannot be satisfied, on the basis of the present location and health of the tree, that that damage is sufficient to warrant an order for removal on the basis of past damage, present damage or any likelihood of future damage. 13 There is significant cracking and disturbance along the whole length of the path. This damage is not merely in the vicinity of where tree roots might be located. 14 In addition. Mr and Mrs George have not undertaken any detailed examination to demonstrate whether the totality of the damage to the path (particularly between the tree and the front of the house) was caused by roots of the tree. 15 We are not satisfied, on the basis of the damage to the path, that we should order removal of the tree. 16 As to the damage to fence, the trunk of the tree has clearly significantly displaced the fence towards the George's house. In addition, there is a large mound of dead material from the past pruning of the tree leaning against the fence. This material may also be exacerbating the displacement of the fence. 17 As to the remedy for the fence, we are satisfied that, as there are no other imperatives for the removal of the tree, the rebuilding of the fence so that it buts up to the tree on each side is the appropriate the course of action to order. 18 We have also carefully examined at the age and state of repair of the fence. 19 It is a fence which, on any reasonable consideration, is reaching the end of its useful life. 20 Mr Conin, the owner of the property upon which the tree is located, has, in the past, installed several metal posts in order to assist retain the fence along the boundary. 21 We are satisfied that approximately 50% of the fence has been impacted by displacement by the tree – that being the eastern section of the fence where it has been bowed toward the Georges's house and lifted. 22 We are satisfied, as a consequence of that, that it is appropriate that Mr Conin should meet the entire cost of replacement of half the fence – that being the element between the midpoint of the fence and the eastern end – and half of the remainder of the cost of replacement of the fence – that being the portion nearing the end of its useful life and not impacted by the tree. 23 The consequence is that, with respect to the fence, Mr Conin will be obliged to pay three-quarters of the cost of replacing the fence. 24 The appropriate way to implement that order of the Court will be to require Mr and Mrs George to obtain two quotations for the removal and replacement of the fence and provide them to Mr Conin. 25 Within 28 days of Mr Conin being provided with a copy of a receipted invoice for the replacement of the fence (after the replacement has taken place), he is to pay an amount equal to three-quarters of the lower of the two quotations to Mr and Mrs George for that work. 26 With respect to the tree itself, Mr Conin is to have an AQF Level 3 arborist with appropriate insurances are undertaken correction pruning, in accordance with Australian Standard 4373–2007, to the stub branches which continue to remain in the tree and to remove, also in accordance with Australian Standard 4373–2007, the deadwood from the more western of the two leaders in the tree. Marked digital photographs will be provided as part of the orders of the Court to demonstrate where this pruning is to occur. 27 Finally, with respect to the accumulated detritus from the tree which has been removed and piled on Mr Conin's property immediately to the east of the tree, that is to be removed within 28 days of the orders of the Court. 28 The pruning is to be undertaken within a similar period of time. 29 The removal of the detritus is required as it may also be impacting on the fence and would also render it difficult or impossible to replace the fence along the appropriate line. 30 The final element of Mr and Mrs George's claim is a claim for $330 being the cost of the arborist's report. We are satisfied that a deal of the impetus for this application and for Lane Cove Council's requirement for Mr Conin to remove the deadwood that was in the tree came from that report. 31 We are therefore satisfied that Mr Conin should pay Mr and Mrs George the sum of $330 for the cost of this report within 28 days of the date of the orders of the Court. Tim Moore Commissioner of the Court Dr John Roseth Senior Commissioner 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.