Bowler v Mackney

[2022] NSWLEC 1250

Land and Environment Court

New South Wales

Medium Neutral Citation:

Bowler v Mackney [2022] NSWLEC 1250

Hearing dates:

30 November 2021

Date of orders:

13 May 2022

Decision date:

13 May 2022

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

See orders at [31]

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application concerning damage – whether neighbouring trees have damaged the applicant’s property – whether trees are likely to cause damage or injury

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pt 2 ss 7, 9, 10, 12

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292

Freeman v Dillon [2012] NSWLEC 1057

Texts Cited:

Australian Standard 4373:2007 ‘Pruning of amenity trees’

Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’, 2016

Category:

Principal judgment

Parties:

Kenneth Frederick Bowler (Applicant)
Lorraine Beryl Mackney (Respondent)

Representation:

K Bowler (Self-represented) (Applicant)
L Mackney (Self-represented) (Respondent)

File Number(s):

2021/263520

Publication restriction:

No

Judgment

Background to the application

1. ACTING COMMISSIONER: Neighbours Kenneth Bowler (the Applicant) and Lorraine Mackney (the Respondent) live in Corlette, in the Port Stephens region. Several trees on Ms Mackney’s property are close to their common boundary. Mr Bowler says the trees have damaged his property and threaten further damage or injury. He has applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) seeking orders for Ms Mackney to remove the trees. He also seeks orders for Ms Mackney to pay compensation for damage and for the costs of his application to the Court.

2. The orders that Mr Bowler seeks are orders the Court can make at s 9 of the Trees Act. However, Commissioners of the Court do not have the power to order costs, so if Mr Bowler wishes to pursue that order, he would need to file a Notice of Motion to be heard by the Registrar or a Judge of this Court.

3. The hearing took place via MS Teams on 30 November 2021, with both parties self-represented. With the information before me, I have been able to make this decision without the need for a site view.

Framework for this decision

4. Before making orders under Pt 2 of the Trees Act, the Court must be satisfied at s 10(1) that the Applicant has made a reasonable effort to reach agreement with the trees’ owner. The Court must also be satisfied at s 10(2) that the trees have caused, are causing, or are likely in the near future to cause, damage to the Applicant’s property, or are likely to cause injury to a person.

Reasonable effort to reach agreement

5. Mr Bowler and Ms Mackney have discussed the trees over the years. Mr Bowler has raised issues regarding the trees’ potential to damage his property, as well as termite damage, risk of fire, erosion around the trees, debris falling from the trees, damage to his television antennas and risk posed to his family members. He has offered to prune the trees. In June 2021…