Rorie v Abacherli [2017] NSWLEC 1004

Land and Environment Court New South Wales

Medium Neutral Citation: Rorie v Abacherli [2017] NSWLEC 1004 Hearing dates: 19 December 2016 Date of orders: 11 January 2017 Decision date: 03 January 2017 Jurisdiction: Class 2 Before: Durland AC Decision: The application is upheld Catchwords: Trees (Disputes Between Neighbours); injury, damage, jurisdictional tests, deadwood, removal Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Category: Principal judgment Parties: Stephen Rorie (Applicant) Hildegarde Abacherli (Respondent) Representation: S Rorie, Litigant in person (Applicant) R Nolan, Tutor (Respondent) J Taylor, Solicitor (Respondent) File Number(s): 16/297857

Judgment 1. This is an application pursuant to section 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) concerning three trees located at the rear of the respondent's property in the Sydney suburb of Strathfield. 2. The respondent is 90 years old and incapacitated due to a stroke and dementia. The respondent's daughter is acting as her Tutor and appeared for the respondent at the hearing. 3. The applicant contends that the fence at the rear of his property, common with respondent's rear boundary, is being damaged by one of the trees and that the tree has moved and therefore might fall and cause injury to a person or damage to property. He is also concerned that a second tree is not stable and may fall and cause damage to his property or injury to a person. 4. The application also includes a third tree, currently reduced to a stump, that the applicant contends is impacting a side fence on the respondent's property. The fence adjacent to the stump is not a common boundary fence with the applicant's property. 5. The trees subject to the application are referred to as Chamaecyparis lawsoniana (Lawson Cypress) in the documentation filed by the respondent's Tutor and as Cupressus torulosa (Bhutan Cypress) in the report prepared by The Arborist Network (Report no. CD1746) and dated 7 December 2016 prepared for the respondent. All five trees located adjacent to the fence along the rear of the respondent's property are Cupressus torulosa (Bhutan Cypress). 6. The tree report prepared by an AQF Level 5 arborist for the respondent includes a statement that the author has read and has abided by the Expert Witness Code of Conduct as contained in Schedule 7 of the Uniform Civil Procedure Rule 2005 and that the report has been prepared with the intent to comply with section 5 of Schedule 7. 7. The applicant is seeking orders that three of the trees be removed, that they be replaced with more suitable trees and that the damaged fence be repaired. 8. The respondent is seeking alternate orders that the applicant be restrained from damaging the trees subject to the order and any other vegetation growing on the respondent's property. 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?