Background
Bei Zhu, owner and occupier of a property in Lane Cove, applied under the Trees (Disputes Between Neighbours) Act 2006 (NSW) concerning two Sydney blue gums on the adjoining property owned by Hergol Holdings Pty Ltd. Zhu sought orders to prevent further damage and to remedy damage allegedly caused by falling branches.
The matter proceeded through a conciliation conference and an on-site inspection. Zhu had previously notified Hergol’s managing agent of roof damage, sought compensation and requested that the owner seek permission to remove the trees. The parties subsequently agreed on proposed orders.
The Court’s Holding
Acting Commissioner Galwey granted the application and made the agreed orders. The Court found that falling branches had damaged roof tiles at Zhu’s property, most likely from the taller tree, and that both trees were likely in the near future to cause further property damage. Each tree therefore satisfied the threshold for an order under s 10(2) of the Act.
Under s 34(3) of the Land and Environment Court Act 1979 (NSW), the Court was required to dispose of the proceedings in accordance with the parties’ agreement because it was a decision the Court could properly make. Hergol was ordered to remove both trees within 60 days, at its cost, using a suitably qualified and insured arborist, and to pay Zhu $2,640 for repair damage after the removal work was completed.
Key Takeaways
- A neighbour-tree order requires satisfaction that each tree has caused, is causing, or is likely soon to cause property damage, or is likely to cause injury.
- Site observations, evidence of fallen branches and photographs of roof damage supported findings for both trees.
- A court order under the Trees Act can authorise removal without the council consent that would ordinarily be required.
Why It Matters
The decision shows the practical operation of the NSW neighbour-tree regime where unsafe or poorly maintained trees affect adjoining land. It also illustrates that a conciliated agreement will be formalised once the Court is satisfied that the statutory thresholds and preconditions are met.
Although the trees were indigenous and council approval would ordinarily have been needed under the local development control plan, the removal orders could be carried out without separate council consent under s 6(3) of the Trees Act.