Land and Environment Court of New South Wales CITATION : Madden v Symes [2007] NSWLEC 340 APPLICANT Norman Madden PARTIES : RESPONDENT Alan Symes FILE NUMBER(S) : 20115 of 2007 CORAM: Moore C - Bly C - Fakes AC KEY ISSUES: Trees (Neighbours) - Neighbour Application :- LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 DATES OF HEARING: 31 May 2007 EX TEMPORE JUDGMENT DATE : 31 May 2007 APPLICANT In person LEGAL REPRESENTATIVES: RESPONDENTS No appearance JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES MOORE C BLY C FAKES AC 31 May 2007 07/20115 Norman Madden v Alan Symes 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 made pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act). 2. The application is made by Mr Madden of Townhouse 4, 345 Box Road Sylvania. 3. The application concerns two trees located on the neighbouring property to the east – which is 341A Box Road. This property is owned by Mr Alan Symes. 4. The two trees which are the subject of the application are a Sydney Peppermint (Eucalyptus piperator) and an Angophera costata. 5. The Sydney Peppermint is located adjacent to the boundary and has two main trunks. It is located near the rear corner of Mr Madden's dwelling. 6. The Angophera is located on Mr Symes property immediately adjacent to the boundary and somewhat to the south of the boundary between Mr Madden's townhouse and Townhouse 3. 7. A comparatively small number of minor limbs of the Angophera overhang the roof of the upper-level bedroomof Mr Madden's dwelling. 8. We have examined the Angophera and haveconcluded that none of the tests pursuant to s 10(2) of the Act are satisfied – in that we are satisfied that the Angophera has not caused; is not causing and is not likely to cause damage to Mr Madden's a property in the near future nor is there any significant risk of injury to persons arising from the Angophera. 9. We also understood, from what was said by Mr Madden during the course of the inspection, that that tree is not his major concern. In fact, he did not significantly press on us a desire to intervene with respect to the Angophera. 10. Therefore, we are not prepared to make any order with respect to the Angophera. 11. The same cannot be said with respect to the Sydney Peppermint. It is a substantial tree which has had significant ivy growth over it in the past – that is now been cut and killed. There is still remnant ivy growth on various of its trunks. 12. There is, at a number of locations, evidence of significant borer damage. There are a number of structural inadequacies in the tree. 13. Of the two main trunks, we are satisfied that, with respect to the northern of them (a main trunk which, itself, bifurcates at approximately 6 m above the base) of the three further main elements of that trunk which overhang Mr Madden's property, two of those three should the removed. We have reached this conclusion because we are satisfied the test in s 10(2)(b) has been met – in that there is a sufficient risk of injury to the Maddens to warrant such pruning. 14. With respect of the more southern of the two main trunks, at about 10 to 12 m above the ground, that trunk itself splits into two major sub-trunks with a small third element to the west at that junction. 15. We are satisfied that it would be appropriate to remove the more westerly of those major elements at that location and to remove the small element at that junction. These two elements are both located overhanging the Madden property. 16. We have reached that conclusion for similar reasons to the those on the other trunk of the Sydney Peppermint because we are satisfied that there is borer damage to the upper element and there is a real risk of failure at a number of locations. The point which we have identified is the prudent, appropriate and safe location to undertake a pruning of that part of the tree. 17. Unless Mr Symes is able to persuade us to the contrary, the orders of the Court will require these removals. 18. The determination concerning these branches is proposed in those terms because, although Mr Symes has been notified the hearing, he was not in attendance – having left a message, as Mr Madden has informed us, on Mr Madden's telephone answering machine that Mr Symes had been called away and is unable to be present. 19. We have concluded that, although we have the power to determine this application in Mr Symes' absence, he should be the provided with the opportunity to make submissions to the Court as to why those orders should not be made – if, indeed, he wishes to make such submissions. 20. We, therefore, do not propose to make these orders immediately but propose to follow the course of preparing those orders (both as to the text and the appended photographs) and of having the Registrar write to Mr Symes asking him if he wishes to be heard on why those orders should not be made in those terms. 21. If Mr Symes does not indicate that he wishes to be heard, within 14 days of being sent such notification by the Registrar, the orders will be made in the terms we have outlined in this decision. 22. If Mr Symes indicates that he does wish to be heard, then the Court will hear his submissions on that point and any further submissions that Mr Madden wishes to make. 23. In addition, the orders will specify that: 1. the work is to be undertaken by Mr Symes at his expense; 2. the work is to be undertaken by an AQF level 3 arborist with appropriate insurances; 3. the work is the undertaken in accordance with Australian Pruning Standard AS 4373 – 2007; and 4. Mr Symes will have 60 days from the date of the orders to carry out the works required. Tim Moore Commissioner of the Court Trevor Bly Commissioner of the Court Judy Fakes 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.