McKinney v Ziliotto

[2007] NSWLEC 263

Land and Environment Court

of New South Wales

CITATION:	McKinney v Ziliotto [2007] NSWLEC 263
PARTIES:	APPLICANT Joan McKinney RESPONDENT Frank Ziliotto
FILE NUMBER(S):	20193 of 2007
CORAM:	Moore C - Fakes AC
KEY ISSUES:	Trees (Neighbours) - Neighbour Application :- Damage to property Refusal of consent order
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
DATES OF HEARING:	7 May 2007
EX TEMPORE JUDGMENT DATE:	7 May 2007
LEGAL REPRESENTATIVES:	APPLICANT Ms J O'Brien, solicitor O'Brein Solicitors RESPONDENT No appearance

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C
FAKES AC

7 May 2007

07/20193 Joan McKinney v Frank Ziliotto

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

JUDGMENT

1 COMMISSIONERS: This is an application by Ms McKinney pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) concerning two trees located at 23 Norfolk Street, Ashtonfield. The trees are an umbrella tree (Schefflera actinophylla) and a spotted gum (Corymbia maculata).

2 With respect to the umbrella tree, Ms McKinney seeks an order for its removal because of the damage that it has caused to a tile patio area on her property in the vicinity of the tree.

3 The various stems of the multi-stemmed tree are clearly re-growth from the stump of an earlier tree of some substance that has been located on the adjacent property.

4 With respect of that tree, Mr Zilliotto, the owner of the property upon which the trees are located, has agreed to a consent order that, within 28 days of the date of the order, he will, in a proper work like workmanlike manner and at his own expense, remove that tree.

5 We are satisfied, when tested against the relevant provision of s 10(2)(a) of the Act, that it is appropriate for the Court to agree to that order because of the damage to Ms McKinney’s patio.

6 With respect to the spotted gum further to the rear of Ms McKinney's property, there are two grounds that are put for its removal.

7 The first is the impact of the tree has on the fence between the respondent’s and the applicant's property and the second is the impact of the material falling from the tree into the gutters of the applicant’s property.

8 With respect to the first matter, the respondent has agreed that, within 28 days, the respondent would, in a proper workman like manner and at his own expense, repair the damaged panels and rails of the colourbond fence adjacent to the spotted gum.

9 In this context, it is appropriate to note that the respondent had also agreed to an order for the removal of that tree so we are not necessarily entitled to assume that the respondent would consent to the continuation of the repair order absent the removal of this tree. However, given the conclusion which we have reached with respect to the retention of the tree, we consider that, whether or not the respondent were to agree to the retention of the order, absent the removal the tree, it is still an appropriate order to make.

10 With respect to the retention of this tree, we have reached two conclusions of a primary nature with respect to the tree.

11 The first is that, consistent with earlier decisions under the Act, we are satisfied that it is not appropriate to order the removal of or any significant interference with this tree on the basis of its dropping of leaves, twigs and the like on the applicant's property.

12 For people who live in treed urban environments, there is some necessary degree of the assumption of housekeeping required in order to appreciate and retain the benefits of having such a treed urban environment. We are therefore not satisfied that the dropping of leaves and the like from this tree can provide any basis for ordering removal of or intervention with it.

13 With respect to the damage to the fence we are satisfied that the damage to the fence can be rectified by the order which we propose to make.

14 We have, during the course of our inspection, however, noticed that there are a significant number of dead mistletoe that are attached to the tree. A number of them, on our observation, overhang the applicant's property and pose some of potential risk of injury to a person in the back garden if they were to fall.

15 These dead mistletoe are bodies of some greater mass than would ordinarily be expected from material that might otherwise fall from that tree. With respect to the lowest of these that overhang the applicant’s property, it is located on a branch that we are of the view it would be prudent to remove at its junction with the main sub-trunk.

16 We are satisfied that it is appropriate under the circumstances that we should order the removal of the dead mistletoe overhanging the applicant's property. We consider,because of the non-appearance of the respondent – despite the fact that he was given notice not only at the property where the trees are located but also at his residential address that today's proceedings were to continue, that we should grant a longer period of time for him to comply with that order and that order should be made requiring him to remove those dead mistletoe elements within 90 days of the making of the order that he should do so.

17 On the main point, we are satisfied that although there is a degree of bark inclusion at the joinder of the two main trunk elements to the tree, there is no immediate likelihood of failure of the tree or any other defect that would warrant any intervention with respect to it.

18 Finally, with respect to the removal of the dead mistletoe, we are satisfied that it would be appropriate to order that access to the applicant’s airspace only should be for climbing whilst accessing the tree from the respondent’s property. The orders of the Court will reflect that requirement.

19 We consider that in order to ensure that there is an appropriate degree of professional expertise brought to the climbing and removal of the dead mistletoe elements on the spotted gum that such removal should be undertaken by a person of AQF 3 level of qualification in arboriculture and that they should have the appropriate Workcover insurances for such an activity.

Tim Moore

Commissioner of the Court

Judy Fakes

Acting Commissioner of the Court