Gough v O’Sullivan [2016] NSWLEC 1178

Land and Environment Court New South Wales

Medium Neutral Citation: Gough v O'Sullivan [2016] NSWLEC 1178 Hearing dates: 6 May 2016 Date of orders: 06 May 2016 Decision date: 06 May 2016 Jurisdiction: Class 2 Before: Durland AC Decision: The application is upheld Catchwords: Trees (Disputes Between Neighbours); injury; jurisdictional tests; deadwood: pruning Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Gough v O'Sullivan [2009] NSWLEC 1027 Gough v O'Sullivan [2009] NSWLEC 1341 Category: Principal judgment Parties: B Gough (Applicant) M O'Sullivan (Respondent) Representation: B Gough, litigant in person (Applicant) M O'Sullivan, litigant in person (Respondent) File Number(s): 20096 of 2016

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1. This is an application pursuant to section 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) concerning two mature Eucalyptus microcorys (Tallowwood) trees located on the respondent's (Ms O'Sullivan) property at Penshurst in Sydney. 2. The trees are located in the northern rear corner of the respondent's property. The northern most tree is located approximately 500mm from the common boundary fence and the southern most tree is approximately 2.5 metres from the common boundary fence. Both of the trees have a trunk diameter of greater than 700mm and are over 20 metres in height. 3. The trees contribute significantly to the amenity of the surrounding landscape and are likely to be contributing to the biodiversity and ecology of the local area. 4. The applicant (Mrs Gough) is seeking orders for the pruning of the trees to remove the branches that overhang her site. Mrs Gough would like the trees removed if the amount of pruning is not viable due to the detrimental impact it would have on the trees. The orders are sought because the applicant contends that the trees pose a risk of injury to her. 5. The respondent wants the trees to remain and is willing to have the trees maintained on a regular basis to mitigate the likelihood of falling branches. 6. When asked if she could point out any particular limb that was causing concern Mrs Gough stated that there are not any particular branches that are of concern. Mrs Gough is concerned about all of the branches that overhang her property. 7. There are currently Orders relating to the trees as a result of an application made in 2009, Gough v O'Sullivan [2009] NSWLEC 1027. Orders require that at periods of no more than 5 years (until 2020) deadwood up to 20mm be removed. A second application in 2009, Gough v O'Sullivan [2009] NSWLEC 1341, was dismissed. 8. The respondent and applicant agree that the trees have been pruned in accordance with the orders twice since 2009. The most recent pruning was undertaken in 2014. 9. The provisions of section 10(2) of the Trees Act require that I be satisfied that one or more of four tests are met with respect to each tree subject to the application, before I have jurisdiction to consider the application. These tests are: Has the tree caused damage to the applicant's property? Is the tree now causing damage to the applicant's property? Is the tree likely in the near future to cause damage to the applicant's property? Is the tree likely to cause injury to a person? Only if one or more of the tests is satisfied can I move on to consider what orders, if any, I should make in respect to each of the trees.