Francisco Palacios v Margaritte Joanne Colefax [2018] NSWLEC 1062

Land and Environment Court New South Wales

Medium Neutral Citation: Francisco Palacios v Margaritte Joanne Colefax [2018] NSWLEC 1062 Hearing dates: 19 December 2017 Date of orders: 13 February 2018 Decision date: 13 February 2018 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is upheld. See orders at paragraph 26. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage to property; whether branch failure was a result of development impacts; orders for pruning. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Black v Johnson (No 2) [2007] NSWLEC 513 Category: Principal judgment Parties: Francisco Palacios (Applicant) Margaritte Colefax (Respondent) Representation: Mr Patrick Pagin, Solicitor Navado Lawyers (Applicant)

Mr William Blunt, Agent (Respondent) File Number(s): 317801 of 2017 Publication restriction: No

Judgment

Background 1. In 2014 Hornsby Shire Council ('Council') approved the subdivision of a large residential lot in the Sydney suburb of Wahroonga into five lots. Ms Colefax ('the respondent') and Mr Blunt live at an adjoining property in a house surrounded by a garden of trees and shrubs, including mature native trees. Subdivision plans showed, on the new residential allotment next to theirs, a building envelope and tree protection zones (TPZs) of trees on their property. One of their trees, a mature Sydney Blue Gum (Eucalyptus saligna) ('the tree'), stands close to the common boundary so its TPZ extended well into the new allotment next to theirs. The Palacios family purchased this new allotment, on which to build their family home. 2. Council approved the Palacioses' plans for their dwelling, with the building envelope closer to the common boundary than had been shown on subdivision plans, resulting in greater encroachment into the tree's TPZ. Conditions on Council's development application approval ('DA') included measures for protecting the tree. 3. During construction of the Palacioses' dwelling Ms Colefax and Mr Blunt observed what they say were many breaches of conditions for protecting their tree. They corresponded frequently with the Palacioses and with Council, alerting them to these breaches. At completion of construction Council issued final certification indicating that conditions of the permit had been satisfied. Ms Colefax and Mr Blunt say the permit conditions were not satisfied, and this has led to the tree's decline and subsequent limb failures. 4. In May 2016 Mr Blunt applied to Council for permission to remove the tree. In his view it had become hazardous as a direct result of the neighbouring works. Council refused permission to remove the tree. Mr Blunt appealed this decision. Council refused the appeal so Mr Blunt lodged an appeal with the Land and Environment Court. He engaged the services of consulting arborist Catriona Mackenzie. A joint report prepared by Ms Mackenzie and Council's arborist, Robert Woodward, described the tree as healthy and apparently stable. They agreed that the tree showed no ill-effects from the adjacent development, although also agreed that such impacts may take several years to become apparent. Mr Blunt discontinued the proceedings in the Land and Environment Court. 5. The Palacioses' double-storey dwelling has a tiled roof. The tree's crown extends well beyond the common boundary, overhanging a large portion of the dwelling. In July 2017 a branch fell from the tree, breaking roof tiles on the Palacioses' dwelling. Ms Colefax and Mr Blunt engaged an arborist to remove any other hazardous limbs. The arborist removed limbs only over their property, not the Palacioses'.