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
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
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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.
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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
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The application by Mr Mildred was…
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- AGLC
- Lee and Mildred v Steinhauer [2023] NSWLEC 1165
- Case
- [2023] NSWLEC 1165
- Decision Date
CaseChat Overview and Summary
The court found that the tree on the defendant’s property had caused damage to the plaintiffs' property, but that the damage was not significant enough to warrant compensation. The court also found that the tree was a hazard and a risk to the plaintiffs' safety and that it should be removed. The court rejected the defendant’s argument that the tree was a significant part of his property and that its removal would cause him substantial hardship. The court found that the defendant had failed to take reasonable steps to prevent the tree from causing damage to the plaintiffs' property and that he was therefore liable for the damage.
The court granted the plaintiffs' application for the removal of the tree and ordered the defendant to engage a suitably qualified and experienced arborist to remove the tree to ground level. The court also ordered that the works be done in accordance with the Safe Work Australia (2016) ‘Guide to Managing Risks of Tree Trimming and Removal Work’. The court further ordered that the tree removal be completed within 60 days of the date of the orders and that all works be completed during normal work hours. Should access be required into the plaintiffs' properties to undertake these works, or for removal of refuse, such right to access shall be granted, subject to 48 hours written notice. The court refused the plaintiffs' application for compensation.
Orders
Orders of the court
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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