McDonnell v Miller and Buchanan

[2007] NSWLEC 582

Land and Environment Court

of New South Wales

CITATION:	McDonnell v Miller and Buchanan [2007] NSWLEC 582
PARTIES:	APPLICANT Barry McDonnell RESPONDENT M B Miller and J B Buchanan
FILE NUMBER(S):	20384 of 2007
CORAM:	Brown C - Thyer AC
KEY ISSUES:	Trees (Neighbours) - Neighbour Application :- safety
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
DATES OF HEARING:	24/08/07
EX TEMPORE JUDGMENT DATE:	24 August 2007
LEGAL REPRESENTATIVES:	APPLICANT In person RESPONDENT Ms I Pickel, solicitor SOLICITORS Irene E Pickel Solicitors

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C with Thyer AC

24 August 2007

20384 of 2007 Barry McDonnell v M B Miller and J B Buchanan

JUDGMENT

1 COMMISSIONERS: This is an application made pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 by Mr Barry McDonnell of 188 Erith Street Bundanoon concerning 11 Pinus radiata trees located close to the common boundary with 192 - 198 Erith Street Bundanoon owned by M B Miller and J B Buchanan.

2 The extemporaneous decision was given on site on 24 August 2007 and the judgment reflects the findings and the background documentation provided as part of the proceedings.

3 Mr Barry McDonnell's application is to require the removal of the 11 trees as:

• branches fall from the trees
• the falling branches pose a serious safety risk for people, including his grandchildren, in the driveway area of his property.

4 Alternatively, all overhanging branches are to be cut back and all dead timber is to be removed.

5 No compensation is sought.

6 Mr Miller opposes the removal of the trees. He would however accept orders that require the removal of that portion or portions of any of the subject trees, if any, that the Court considers has caused, is causing, or is likely to in the near future cause damage to the applicant's property or is likely to cause injury to any person.

7 The 11 Pinus radiata trees form a row along the common boundary. A further five trees originally extended this row however these trees have since been removed as part of the redevelopment of an adjoining property. Rows of Pinus radiata are a common landscape element in the Southern Highlands and contribute to its particular character.

8 The subject trees are in the order of 30 m in height and in a mature, but not over mature state. For ease of description, we have numbered the trees from the street frontage. Pruning has occurred from Mr McDonnell's side of the boundary leaving a number of stubs extending from the trunk to near the common boundary. Some deadwood is located in the trees and one tree appears to have been struck by lightning and is in decline (Tree 5). Based on our observations on the health of the trees we are not satisfied that all 11 trees should be removed. Tree 5 should be removed because of the damage caused by lightning and there should be the removal of all deadwood and some pruning of branch stubs and selective pruning of Tree 3. Inspections and deadwood removal having a diameter of greater than 30 mm should be undertaken regularly.

9 For these reasons we have concluded that the application should be upheld, in part.

10 The Orders of the Court are:

A) The application is upheld, in part.
B) The respondent is to undertake the following works:
1) Tree 5 is to be removed.
2) The removal of all deadwood having a diameter of greater than 30 mm from all trees.
3) All branch stubs are to be cut back to the branch collar at the trunk in accordance with Australian Standard AS 4373-2007 Pruning of amenity trees.
4) Selective pruning of Tree 3 of between 20% and 30% of the canopy to reduce heavy wood overhanging the boundary.
5) All work required by orders 1, 2, 3 and 4 is to be carried out within a period of 3 months from the date of this order.
6) All pruning is to be undertaken by an experienced arborist with AQF Level 3 certification or equivalent or higher recognition.
7) The trees are to be regularly inspected and all deadwood having a diameter of greater than 30 mm is to be removed, at intervals of no longer than 5 years.
8) All work required by these orders is to be carried out at full cost to the owner of the land where the trees are growing.

_________________________
Peter Thyer