Lee and Mildred v Steinhauer

[2023] NSWLEC 1165

Land and Environment Court

New South Wales

Medium Neutral Citation:

Lee and Mildred v Steinhauer [2023] NSWLEC 1165

Hearing dates:

17 November 2022

Date of orders:

11 April 2023

Decision date:

11 April 2023

Jurisdiction:

Class 2

Before:

Sheridan AC

Decision:

The Court orders:

(1) The application for compensation is refused.

(2) The application to remove the tree is granted.

(3) The Respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances to remove the tree to ground level.

(4) The works are to be done in accordance with the Safe Work Australia (2016) ‘Guide to Managing Risks of Tree Trimming and Removal Work’. Tree removal is to be completed within 60 days of the date of these orders.

(5) All works are to be completed during normal work hours. Should access be required into the Applicants’ properties to undertake these works, or for removal of refuse, such right to access shall be granted, subject to 48 hours written notice.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) — Is the tree causing damage to the applicant’s sewer pipes – is the tree likely to cause such damage in the near future – does the tree present a genuine risk requiring mitigation – is tree removal an appropriate intervention – do benefits from tree exceed the imperative to intervene

Legislation Cited:

Land and Environment Court Act 1979, s 56A

Trees (Disputes Between Neighbours) Act 2006, Pts 1, 2, ss 4, 5, 7, 9, 10, 12

Uniform Civil Procedure Rules 2005, Sch 7

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 29

Mildred v Steinhauer [2022] NSWLEC 88

Mildred v Steinhauer [2022] NSWLEC 1148

Yang v Scerri [2007] NSWLEC 592

Texts Cited:

Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, (2016)

Category:

Principal judgment

Parties:

Albert Kin Kay Lee (First Applicant)
Giles Mildred (Second Applicant)
Erna Steinhauer (Respondent)

Representation:

A Lee (Self-represented) (First Applicant)
G Mildred (Self-represented) (Second Applicant)
K Sosna (Agent) (Respondent)

File Number(s):

2022/252521 and 2021/249664

Publication restriction:

Nil

Judgment

1. COMMISSIONER: The Applicants, Mr Albert Lee and Mr Giles Mildred, live in Mortdale, a suburb in the Georges River Council, Local Government Area of NSW. Mr Lee resides at 9 Cromdale Street and Mr Mildred is the owner of 7A Cromdale Street. The subject of the dispute is a mature Eucalyptus microcorys (Tallowood) (the tree) located near the north-western corner of the respondent’s land at 90 Seaforth Avenue, Oatley.

2. This hearing relates to two applications before the Court, one by Mr Lee (Matter No 2022/252521) and one by Mr Mildred (Matter No 2021/249664). Both Applicants claim that the tree in their neighbour’s property presents a high risk, has damaged their sewer pipes, and roof, and that the tree which overhangs their land sheds leaves, sticks and other debris which falls or blows onto their roofs, gutters, and other surfaces, creating an unreasonable and costly maintenance burden.

Background to the Appeal

3. The application by Mr Mildred was…