McDonald v Ryan

[2008] NSWLEC 1194

Land and Environment Court

of New South Wales

CITATION:	McDonald v Ryan [2008] NSWLEC 1194
PARTIES:	APPLICANT John McDonald RESPONDENT Terry and Joanne Ryan
FILE NUMBER(S):	20125 of 2008
CORAM:	Fakes AC
KEY ISSUES:	Trees (Neighbours) :- Lopping of trees, damage to property or injury to person
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
CASES CITED:	Yang v Scerri [2007] NSWLEC 592
DATES OF HEARING:	09/05/2008
EX TEMPORE JUDGMENT DATE:	9 May 2008
LEGAL REPRESENTATIVES:	APPLICANT John McDonald, litigant in person RESPONDENT Terry and Joanne Ryan, litigant in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes AC

9 May 2008

20125 of 2008 John McDonald v Terry and Joanne Ryan

JUDGMENT

1 This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 made by Mr John McDonald of 14b Holly Road Burradoo concerning six poplars located along the driveway of 12 Holly Road Burradoo, a property owned by Mr and Mrs Ryan.

2 The applicant is concerned that the trees will get larger and overhanging branches will fall onto his house thus causing damage to his property and or injury to persons. He seeks the lopping of the trees to approximately 10 m in height.

3 The respondents do not want anything to happen to the tress as they value the amenity they provide.

4 The trees are six poplars in a row of poplars (possibly Populus deltoides or another of the broader-growing species) located on the western side of a long driveway from Holly Road to the respondents’ property. They are mature specimens of approximately 20 m in height. They are growing between the unpaved driveway and a drainage easement that adjoins the applicant’s property. The drainage easement is a vegetated/ grassed swale drain to which the council has access but is located on the respondents’ land. The drain appeared to be stable with no signs of erosion or destabilisation despite it reportedly running with water in wet conditions.

5 After some discussion is was verified that the trees and the easement are wholly located on the respondents’ land thus satisfying s.4(3) and s.7 of the Act.

6 The boundary between the applicant’s and respondents’ land is effectively delineated by the western bank of the easement, approximately 2 metres from the trunks of the trees.

7 The trees were viewed from both properties. Approximately 4 years ago the applicant, with the permission of the previous owners of 12 Holly Road, had the branches that were overhanging his property lopped at approximately 12-15 metres above ground. This was carried out because a branch failed in windy conditions onto the driveway of 12 Holly Road and the applicant was concerned that branches may fall onto his property. The applicant raised concerns about the strong prevailing south-westerly wind.

8 The lopping resulted in epicormic shoots arising from the lopped branches. These are now several metres in length. The applicant stated that no branches have fallen onto his property in the 13 years that he has resided there.

9 The branches of some of the trees currently overhang the applicant’s property by about 1 – 2 metres, that being the side garden between the house and the boundary, but not the house.

10 Under s.10(2) of the Act, a number of matters must be considered before the Court can make an order for anything to be done to the trees. Specifically, the Court must determine if the trees have caused, are causing, or could, in the near future, cause damage to property or injury to persons. In Yang v Scerri [2007] NSWLEC 592, the ‘near future’ is deemed to be within the next 12 months.

11 Under s.12 of the Act, other matters must also be considered. The relevant clauses are:

(a) the trees are wholly located on the respondents’ land
(d) the owners state that the trees have been used by pairs of King Parrots, while this is disputed by the applicant, the trees may make a contribution to the local biodiversity,
(e) the trees do make a contribution to the scenic value of the land on which they are located;
(f) they have intrinsic value to public amenity as they are part of the mixture of deciduous and evergreen exotic species and native species that is a characteristic of the landscape of Burradoo;
(g) given the location of the trees along the edge of a drainage easement they are likely to have a positive effect on soil stability;
(h)(i) this clause considers anything other than the tree that could contribute to the likelihood of damage to property including any acts by the applicant. In this matter, the inexpert lopping of the respondents’ trees by the applicant’s arborist is the factor most likely to lead to future problems. This work was not carried out in accordance with AS4373:2007 (or AS4373:1996) Pruning of Amenity Trees and has resulted in branches that are more weakly attached than naturally arising branches.

12 In conclusion, when s.10(2) is considered:

(i) the trees have not caused damaged to the applicant’s property

(ii) the trees are not currently causing damage to the applicant’s property;
(iii) the trees are unlikely, in the near future, to cause damage to the applicant’s property, particularly as the property is on the western side of the trees and the prevailing south-westerly winds blow the trees away from his property; and
(iv) are unlikely to cause injury to persons.

13 As none of the parts of s.10(2) are satisfied, the orders of the Court are that the application is refused.

14 It is noted however, that the applicant has the respondents’ permission to access their land if he wishes to have overhanging branches removed. The respondents have given permission to the applicant to remove branches to the boundary between their two properties.

___________________

J Fakes
Acting Commissioner of the Court