Mc Ilwraith v Jones & anor

[2007] NSWLEC 612

Land and Environment Court

of New South Wales

CITATION:	Mc Ilwraith v Jones & anor [2007] NSWLEC 612
PARTIES:	APPLICANTS D and R Mc Ilwraith RESPONDENTS J Jones and E Hodda
FILE NUMBER(S):	20559 of 2007
CORAM:	Thyer AC
KEY ISSUES:	Trees (Neighbours) - Neighbour Application :-
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
CASES CITED:	Barker v Kyriakides [2007] NSWLEC 292
DATES OF HEARING:	13 September 2007
EX TEMPORE JUDGMENT DATE:	13 September 2007
LEGAL REPRESENTATIVES:	APPLICANTS In person RESPONDENTS In person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

THYER AC

13 September 2007

07/20559 D and R Mc Ilwraith v J Jones and E Hodda

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

The consequence of the Court’s decision in this application is the making of formal orders pursuant to s 9 of the Trees (Disputes Between Neighbours) Act 2006 . These orders are not reproduced as part of this decision but a copy the Court’s Orders may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders are available on the Court’s web site at

1. ACTING COMMISSIONER: This is an application made pursuant to s 7 of the Trees (Disputes Between Neighbours) Act2006 (the Act) concerning one tree located on a property at 23 Mitchell Street, Stockton (the property). The property is owned by J Jones and E Hodda.

2. The tree is a Broad-leafed Paperbark (Melaleuca quinquenervia) (the tree).

3. The application has been made by D and R McIlwraith, the owners of 7A Queen Street, Stockton. That property adjoins the western side of 23 Mitchell Street.

4. The application seeks orders that the tree be removed to avoid risk of injury to people and to prevent property damage.

5. The relevant provisions of s 10(2)(a) and (b) of the Act require that the Court be satisfied that one or more of four conditions are met, with respect to each tree subject of an application, before the Court has jurisdiction to consider the application concerning that tree.

6. These tests are:

• Has the tree caused damage to the applicant’ property?
• Is the tree now causing damage to the applicant’ property?
• Is the tree likely in the near future to cause damage to the applicant’ property?
• Is the tree likely to cause injury to any person?

7. Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of:

• Is the damage or risk sufficiently serious to warrant the Court intervening?
• If so, what should the Court order?
• Who should pay to carry out those orders?

8. I have examined the tree and have reached the following conclusions with respect to it.

9. It is an attractive tree, visible from Mitchell Street and Queen Street, and is the largest tree within a radius of approximately 100 m of the property.

10. It is approximately 10 m tall, with two trunks of approximately 350 mm and 400 mm diameter at 1.2 m above the ground. The foliage of the tree appeared to be in good condition; the canopy of the western trunk being larger and denser than that of the eastern trunk.

11. The two trunks are co-dominant with included bark from ground level to approximately 0.6 m above ground. There is a prominent shoulder of reaction wood on the northern side of the tree beside the included bark.

12. The canopy of the tree overhangs the McIlwraiths' home by approximately 4 m, being to the centre roof ridge of that house.

13. I observed two drill holes in the northern side of the tree trunk. These appeared to have been made within the last few months as the wood was clean and not dried. The holes were approximately 30 mm diameter, 80 mm and 100 mm deep respectively, at approximately 0.6 m above ground. I did not observe any evidence of termites in the tree, and note that the drill holes are not consistent with drill holes usually made for the treatment of termites. The tree did not appear to be suffering from the effects of poisoning.

14. I was informed, and observed that two trees on properties adjacent to the property had been removed within the last year. These were both Paperbarks of the same species as the tree, one with a trunk diameter of approximately 350 mm diameter removed from the backyard of 21 Mitchell Street in about February 2007, and the other with a trunk diameter of approximately 500 mm diameter removed from the backyard of 25 Mitchell Street in August 2007. These two trees had formed a group with the tree, and their removal now exposes the tree to winds from the south and northeast. The tree on the north-eastern side was removed after the storms of June/July 2007, so the tree has not been tested without that wind protection.

15. I now turn to consider if the Court should order an intervention with the tree.

16. I note that the respondents have been present while I explained my observations and conclusions about the tree, and they still wish to retain the tree.

17. In ordinary circumstances, consistent with the tree dispute principle set out by the Court in Barker v Kyriakides [2007] NSWLEC 292, the dropping of leaves and the like would not be sufficient reason for the Court to order an intervention with the tree. Nor would the tree present a risk of injury sufficient to order any intervention.

18. However, there are some unusual features in relation to this tree and the McIlwraiths' home.

19. The McIlwraiths advise that they bought 7A Queen Street as a vacant site, there not having been a house on the site previously, but a store-shed had apparently existed there at some time in the past. The McIlwraiths built their house in 2001, when the tree was existing and likely to have been of a similar size. The house is built with the eastern wall approximately 200 mm from the common boundary with 23 Mitchell Street, this being within 600 mm of the trunk of the tree, and the guttering extending to the common boundary.

20. I am advised that the Development Control Plan for areas of Stockton (including this property) allow for construction to the boundary. I observed from the site plan for the Mcilwraiths' property that the land is only approximately 9 m wide at the frontage, 8 m wide adjacent the tree, and 7 m wide at the rear lane. Thus the McIlwraiths were permitted to build under the canopy of the tree, and had limited opportunity to design and build their house further from the tree.

21. The McIlwraiths had gutter-guard installed, and when that proved inadequate, had a finer mesh gutter-guard installed.

22. I observed water damage in the ceiling of one room of the McIlwraiths' home – however the McIlwraiths advised they could not be certain the tree caused the water entry.

23. The McIlwraiths advised that the house was built without sarking under the roof, and that sarking has not since been installed.

24. With regard to the tree, it was growing as the central element of a group of three trees. The recent removal of the other trees now leaves this tree exposed to additional wind stress. The tree has included bark at the base between the co-dominant trunks. That is not unusual for the species but in this case that potential weakness will now be exposed to greater stress. The potential for significant failure of part of the tree, in the near future, is therefore significantly increased.

25. Indeed, I am of the opinion that the tree is likely to cause damage to the applicants’ property in the near future or that it is likely to cause injury to a person if such failure were to occur.

26. I am therefore satisfied that the following intervention should be made to the tree in order to reduce the risk of damage or injury:

27. The respondents will be required to prune the tree, both to reduce the 'windsail area' of the canopy and thus to reduce the stresses on the trunks; and to reduce the amount of canopy overhanging the McIlwraiths' house. The pruning required shall be removal of the lowest branch from the western trunk of the tree: that is the main branch overhanging the McIlwraiths' house.

28. The work is to be carried out by an experienced arborist (AQF level 3 equivalent or higher) with appropriate insurances. The work is to be carried out in accordance with Australian Standard 4373 of 2007 - Pruning of Amenity Trees.

29. The cost of the pruning and clean up shall be borne equally by the applicants and the respondents.

30. The basis for calculation of costs shall be the cheapest of the quotations received by the parties, or the halving of any other quotation agreed to by both parties.

31. The work is to be completed within three months of the date of the orders of the Court.

32. The respondents are to pay for the work on completion.

33. The applicants are to pay to the respondents the agreed equal share within 30 days of being provided with a copy of the receipt for full payment of the completed works.

34. The applicants are to allow reasonable access for the work to be carried out over their property.

35. The branches are not to be removed through 7A Queen Street unless agreed to by the applicants.

Acting Commissioner of the Court