Ward v Glasson & anor [2012] NSWLEC 1350

Land and Environment Court New South Wales

Medium Neutral Citation: Ward v Glasson & anor [2012] NSWLEC 1350 Hearing dates: 7/9/12; 14/11/12 Decision date: 19 December 2012 Jurisdiction: Class 2 Before: Fakes C Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Damage to property; injury to persons; apprehended bias; consideration of matters in s 12 Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Uniform Civil Procedure Rules 2005 Cases Cited: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337; 176 ALR 644; 75 ALJR 277 Goldmann and anor v Malane [2012] NSWLEC 1234 Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285 Hinde v Anderson & anor [2009] NSWLEC 1148 McCallum v Riodan & anor [2011] NSWLEC 1009 Thronberry & Anor v Packer & Anor [2010] NSWLEC 1069 Yang v Scerri [2007] NSWLEC 592 Zangari v Miller (No 2) [2010] NSWLEC 1093 Category: Principal judgment Parties: Mr P Ward (Applicant) Mr T and Mrs C Glasson (Respondents) Representation: Applicant: Mr P Kilpatrick (Solicitor) Respondent: Mr M Hanlon (Solicitor) Respondent: Mr T Glasson (Litigant in person) Solicitors Applicant: Kilpatrick Hatton Respondent: Lambton Law Solicitors File Number(s): 20340 of 2012

Judgment 1COMMISSIONER: The applicant in these proceedings owns a property in Broadmeadow on which stands a block of stables. On the adjoining property is a mature Eucalyptus saligna (Sydney Blue Gum) growing close to, and overhanging, the mid section of the south-western wall and roof of the stables. 2The applicant contends that the tree has caused damage to the stables and, should a branch fail, it could cause injury to anyone who happened to be in the building at the time. 3The application is made under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act). 4In making this application, the applicant relies substantially on a report prepared for him on 22 September 2011 by Mr Russell Kingdom, a consulting arborist. 5In answer to question 4 of the Part 2 application claim form [in relation to damage to the applicant's property] the applicant states that "As confirmed by Tree Arborist Russell Kingdom, in his attached report dated 22nd September 2011, the base of the trunk of the Sydney Blue Gum (referred to in the attached diagram) is less than 600mm from the improvements on our property and the trunk is resting/touching the gutter of the adjacent building. Further, the roots have caused "significant damage to the besser block walls, cracked the concrete slab floor and has caused significant structural damage to the stables. Furthermore the scaffold branches of the tree are now nearly horizontal and extend for 10 meters over the stable". The Arborist has gone on to highlight that "this tree's branches are now horizontal, indicating that their compressive end weight is reaching a limit and their failure is inevitable. The tree has damaged the gutter and the roof of the building". The damage is illustrated in the photographs provided in the Arborist report'. 6In regards to the answer to question 9 [likely injury], the applicant similarly relies on the statements in Mr Kingdom's report regarding the 'inevitability' of the failure of large scaffold limbs onto the applicant's property thus potentially injuring anyone accessing the stables. 7The applicant is seeking orders for the removal of the tree and the repair of the stables at the respondents' expense. The respondents do not wish to remove the tree and dispute the need to repair the building.