McKee v Mills and Teasdale

[2008] NSWLEC 1197

Land and Environment Court

of New South Wales

CITATION:

McKee v Mills and Teasdale [2008] NSWLEC 1197

PARTIES:

APPLICANT
Leslie and Dorothy McKee

RESPONDENT
Russell Mills and David Teasdale

FILE NUMBER(S):

20051 of 2008

CORAM:

Thyer AC

KEY ISSUES:

Trees (Neighbours) :- Removal of the tree, property damage and injury to persons.

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

08/05/2008

EX TEMPORE JUDGMENT DATE:

8 May 2008

LEGAL REPRESENTATIVES:

APPLICANT
Leslie and Dorothy McKee, litigants in person

RESPONDENT
Russell Mills and David Teasdale, litigants in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Thyer AC

8 May 2008

20051 of 2008 Leslie and Dorothy McKee v Russell Mills and David Teasdale

JUDGMENT

The decision was given at the hearing on 8 May 2008.
This written judgment reflects the background information and the findings.

1 ACTING COMMISSIONER: The McKees and Messrs Mills and Teasdale have been neighbours for about 18 years. They live on the steep, lush hillside above Terrigal beach. The Mills & Teasdale property has many large trees, some of which overhang the McKees’ property. Mr McKee has pruned some branches over the years but left others as they are large and add to the attractive ambience of both properties.

2 About eight years ago Messrs Mills and Teasdale transplanted a 2 m tall Yellow Jacaranda tree in their backyard to a position very close to the common boundary beside the McKees’ pool house. That tree has grown about 2 m per year and is now over 15 m tall, with almost the whole tree leaning over the McKees’ pool house, pool and back garden.

3 The tree began dropping large branches about 18 months ago. Mr McKee asked Messrs Mills and Teasdale to remove the tree at that time, and they agreed. Gosford City Council has inspected the tree and is reported to agree to the removal.

4 On the day of the hearing Mr Teasdale advised that he was willing to take the tree down but was waiting on a tree lopper to do so, he did not think the tree was unhealthy, and he did not have a permit from Council to remove the tree. He would not give an indication of when the tree might be removed, and declined to take part in the hearing.

5 Neither Messrs Mills and Teasdale nor any representative of theirs was present at the hearing.

6 The McKees seek removal of the tree in order to prevent property damage and injury.

7 When assessing an application under the Trees (Disputes Between Neighbours) Act 2006 the Court must be satisfied that there is a dispute, and that one or more of the four tests in s 10(2) (a) and (b) of the Act are met by the tree before making an order regarding that tree.

These tests are:
Has the tree caused damage to the applicant's property ?
Is the tree now causing damage to the applicant's property ?
Is the tree likely in the near future to cause damage to the applicant's property ?
Is the tree likely to cause injury to any person?

8 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?

The issues

9 The issues in this case are:

• Is there a dispute ?
• Has the Council issued consent for removal of the tree ?
• Is the tree likely to cause damage or injury ?

Is there a dispute ?

10 I accept that Messrs Mills and Teasdale agreed 18 months ago to remove the tree. I spoke to Mr Teasdale on the day of the hearing and he said that he was still willing to take the tree down, but was waiting on a tree lopper and could not say when the tree might be removed.

11 I note there is no dispute between the neighbours about their stated willingness to remove the tree and that Messrs Mills and Teasdale should pay for the work.

12 However, I note that Messrs Mills and Teasdale willingness has not led to action in the last 18 months, and there is a dispute about the timing of tree removal and their intention to remove the tree.

13 Therefore I consider that there is a dispute, and have considered the likelihood of damage and injury in order to determine if the matter is serious enough that the Court should order some intervention with the tree.

Has the Council issued consent for removal of the tree ?

14 I accept Mr McKee’s advice that a Gosford City Council tree officer inspected the tree about 18 months ago at the request of Messrs Mills and Teasdale. Mr McKee says that he met the tree officer at that inspection and was told that the tree could be removed. On this basis I accept that the Council was willing to issue consent for removal of the tree.

Is the tree likely to cause damage or injury ?

15 I accept Mr McKees evidence that the tree has dropped six branches in the last 18 months, all about 90 mm diameter and 3 – 4 m in length, and that one of those was a live branch.

16 I observed that about 90% of the tree is leaning over the McKees’ backyard.

17 I observed from the McKees’ rear deck that there are scars on the upper side of some live branches in the tree. I also observed that a dead branch in the McKees’ backyard has a similar scar with decay in the wood.

18 I also observed at least six dead branches with diameters of 60 – 80 mm in the canopy of the tree.

19 On the basis of Mr McKee’s statements and my own observations I find that the tree is likely to cause damage in the near future or injury to a person.

Conclusion

20 I find that the tree is likely to cause damage in the near future or injury to a person, that the Council has stated that the tree could be removed, and that the owners of the tree do not seem to have a serious intention to remove the tree in any set time frame.

21 Although Messrs Mills and Teasdale were not present at the hearing to advise me on their ability to pay for the tree removal or a reasonable time frame in which to order it, I saw nothing in my meeting with Mr Teasdale at his front gate that led me to think they could not afford to do the work.

22 Therefore I find that the application should be upheld and orders made that the tree be removed promptly at the cost of Messrs Mills and Teasdale.

Orders

23 The Court shall make orders as follows:

1. The tree shall be removed by 8 July 2008 at the cost of Messrs Mills and Teasdale, by a contractor of their choice;
2. The contractor shall be an arborist with AQF Level 3 qualifications and suitable insurances;
3. The tree loppings shall be removed through the property of Messrs Mills and Teasdale, not up the wooden steps or beside the house on the McKees’ property;
4. The McKees shall permit access to their property for the purpose of removal of the tree, provided that access is on reasonable notice of at least one week and at reasonable times being the hours for building works having the consent of Gosford City Council in the Terrigal area;
5. Mr McKee is permitted to supervise the access of the contractors if he wishes.

___________________

Peter Thyer
Acting Commissioner of the Court