Land and Environment Court New South Wales

• Medium Neutral Citation: McInnes v King [2013] NSWLEC 1049
• Hearing dates: 25 March 2013
• Decision date: 25 March 2013
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application upheld; trees to be removed

• Catchwords: TREES [NEIGHBOURS] Consent orders; damage to property; injury to persons
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Category: Principal judgment
• Parties: Ms M McInnes (Applicant); Mr G King (Respondent)
• Representation: Applicant: Mr E Wood (Solicitor); Respondent: Mr G King (Litigant in person); Applicant: Ticli Blaxland lawyers
• File Number(s): 21291 of 2012

Judgment

1 COMMISSIONER: The applicant in this matter seeks orders for the removal of seven trees on the basis that the trees have caused damage to her property and could continue to cause property damage and or cause injury to any person. The application is made under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act).

2 The respondent does not contest the need to remove the trees. The respondent is a former forester who planted the trees about 20 years ago and, with hindsight, agrees that the species choice is unsuitable given the proximity of the trees to the applicant's property, and the damage that has occurred to the applicant's property.

3 The parties have proposed consent orders. The matter was heard by telephone and the parties were questioned on the basis of the evidence provided in the application and claim forms. The respondent provided additional oral evidence.

4 Before agreeing to make the orders sought by the parties, it is essential that the Court is satisfied that the relevant jurisdictional tests are met with respect to each of the trees the subject of the application.

5 The key jurisdictional test is found in s 10(2) of the Act. This states that the Court must not make an order unless it is satisfied that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant's property or is likely to cause injury to any person.

6 The seven trees are growing on the respondent's land close to the common boundary between the parties' properties. Trees 1 and 3 are Eucalyptus microcorys (Tallowwood), Tree 2 is a Casuarina cunninghamiana (She-Oak), Trees 4,5, and 6 are Acacia melanoxylon (Black Wattle) and Tree 7 is a Eucalyptus saligna (Sydney Blue Gum).

7 The applicant engaged two arborists to inspect the trees. Mr Ross Leaver of Harbour Arbor has prepared the most useful reports. Mr Leaver first inspected the trees in March 2012. For reasons outlined in his report, he recommended the removal of all trees except Tree 2; he recommended that Tree 2 be pruned. Mr Leaver reinspected the trees in March 2013 and updated his 2012 report. While the recommendations remain the same, the condition of trees 4,5 and 6 has deteriorated.

8 In oral evidence, the respondent stated that the Sydney Blue Gum lost its top in a recent storm. The respondent does not contest the findings in the arborist's reports.

9 Photographs in the application claim form show a large, green branch from Tree 3 on the applicant's roof and another photograph shows the applicant's clothesline demolished by a branch from Tree 7. Uncontested statements by the applicant indicate that branches from these trees have damaged the roof of the house on other occasions. The claim form also states that, over the years, branches have fallen from all trees onto the applicant's property. Other photographs show many fallen dead and green branches on the lawn in which the clothesline is located. The respondent did not dispute the veracity of these photographs.

10 When questioned as to why the Court should agree to the removal of Tree 2, rather than the pruning recommended by Mr Leaver, the respondent stated that he had been advised that leaving this tree unprotected (as a consequence of removing the adjoining trees), would predispose it to windthrow and thus increase the risk of damage or injury. With the expertise I bring to the Court, and acknowledging the respondent's former profession, I am satisfied that this is a valid concern.

11 When questioned as to whether he had sought permission for the removal of the trees from Coffs Harbour City Council under council's Tree Preservation Order, the respondent stated that he had interim approval subject to his submitting a planting plan showing the replacement of the seven trees with at least 20 new trees and shrubs.

12 While the replacement of the trees is not a condition sought by the consent orders, the respondent stated that he was willing to replace the trees with species that would provide screening and privacy between the two properties and plant the taller canopy trees on other parts of his block. This commitment was given 'on the record' and recorded in this judgment.

13 Therefore, on the evidence before me and with the benefit of further questioning of the parties, I am satisfied that s 10(2) is satisfied to the requisite level and that the Court has the jurisdiction to make the orders sought by the parties.

Orders

14 By consent, the Orders of the Court are:

(1) The trees the subject of this application, are to be removed at full cost to the Respondent within a period of 90 days from the date of this order.

(2) In the event that the Respondent fails to comply with order 1, that the applicant and/ or her agents are authorised to enter the Respondent's land for the purposes of carrying out order 1 at full cost to the Respondent.

(3) The Court notes the agreement that the Respondent is to pay the Applicant's costs as agreed or assessed.

___________________

J Fakes

Commissioner of the Court

Decision last updated: 26 March 2013