McKenzie v Harrison

[2010] NSWLEC 1117

Land and Environment Court

of New South Wales

CITATION:

McKenzie v Harrison [2010] NSWLEC 1117

PARTIES:

APPLICANT
Della McKenzie

RESPONDENT
Peter Harrison

FILE NUMBER(S):

20167 of 2010

CORAM:

Fakes C

KEY ISSUES:

TREES (NEIGHBOURS) :- Dead tree -removal ordered

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

19 May 2010

 
DATE OF JUDGMENT: 

19 May 2010

EX TEMPORE JUDGMENT DATE:

19 May 2010

LEGAL REPRESENTATIVES:

APPLICANT

Della McKenzie [litigant in person]

RESPONDENT

Peter Harrison [litigant in person]

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C

19 May 2010

20167 of 2010 McKenzie v Harrison

JUDGMENT

1 COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 made by the owner of a property in Pleasant Avenue East Lindfield against the owner of a dead tree located at the rear of a property in Wellington Street.

2 The applicant is seeking either the removal of the tree or for it to be made safe as she contends that its deteriorating condition and the presence of large dead branches overhanging her back yard, poses a risk of injury to persons and could cause damage to her property.

3 The tree is a large dead eucalypt growing within approximately 1m of the rear boundary fence between the applicant and respondent’s properties. It has apparently been dead for over 12 months and the likely cause is thought to be Armillaria, a pathogenic fungus, not uncommon in the local area. The applicant stated that this disease had killed a tree in her garden.

4 The respondent does not contest the need for its removal and has applied for permission from Ku-ring-gai Council to remove this and several other dead and dying trees from his garden. This has been granted and works were planned to commence just before the date set down for an on-site hearing.

5 The combination of a complicated removal process, the availability of a specialist climber and poor weather conditions delayed the operation and the particular circumstances of the matter resulted in the hearing proceeding.

6 It is noted that, given the inclement weather, the applicant and the respondent agreed to an extended time period for the works to happen. The respondent has also sought and received co-operation from adjoining neighbours with respect to the removal of cut material from his property.

7 The tree was inspected from the respondent’s property and it was clear that the tree is dead and deteriorating. It was unnecessary to view the tree from the applicant’s property as the overhang and the condition and size of the branches were obvious.

8 Under s 10(2) of the Act, the Court must not make an order unless it is satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or is likely to cause injury to any person.

9 In this matter, I am satisfied that the size of the tree, the location of overhanging branches with respect to likely target areas, the nature of the disease and the deteriorating condition of the tree are such that tree is likely to cause injury to any person and could cause damage to property.

10 As two of the tests under s 10(2) are satisfied, the jurisdiction is enlivened and the Court may make an order under s 9.

11 For the reasons outlined above, the orders of the Court are:

1. The application to remove the tree is upheld.
2. The respondent is to engage and pay for an AQF level 3 arborist to remove the tree within 30 days of the date of these orders.
3. The work is to be carried out in accordance with the WorkCover Code of Practice for the Amenity Tree Industry.
4. The applicant is to provide all reasonable access for the works to proceed in a safe and efficient manner.
5. The applicant and other affected parties are to receive at least 2 days notice of the commencement of the works.

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