McMahon v Schofield

[2018] NSWLEC 1458

Land and Environment Court

New South Wales

Medium Neutral Citation:	McMahon v Schofield [2018] NSWLEC 1458
Hearing dates:	22 August 2018
Date of orders:	22 August 2018
Decision date:	22 August 2018
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	(1)   Within 60 days of the date of these orders, the respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances to carry out the following works: (a)   Prune T3 to remove any deadwood >30 mm diameter above the applicants’ property, and reduce limbs over the applicants’ property, removing no more than 30% live crown mass; (b)   Prune T4 to remove any deadwood >30 mm diameter above the applicants’ property, and reduce limbs over the applicants’ property, removing no more than 10% live crown mass; (c)   Remove T5 to no more than one metre above ground level. (2)   The works are to be done in accordance with the guidelines of AS4373 Pruning of amenity trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry. (3)   The respondent is to give the applicants seven days’ notice of the works. (4)   The applicants are to allow all access necessary for the works during reasonable hours of the day.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to property – risk of injury – orders for tree removal and pruning
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 (NSW)
Cases Cited:	Nil
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Lynette McMahon (First Applicant) Timothy McMahon (Second Applicant) Sonja Schofield (Respondent)
Representation:	L & T McMahon, litigants in person (Applicants) S Schofield, litigant in person (Respondent)
File Number(s):	2018/136253
Publication restriction:	No

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Background

1. In a quiet residential street in North Nowra, Sonja Schofield (‘the respondent’) has several tall eucalypts in her garden. Her neighbours, Mr and Mrs McMahon (‘the applicants’), are concerned about limbs that fall onto their roof and limbs that may fall into their garden and cause injury. They also say the roots of one of Ms Schofield’s trees have damaged paving alongside their dwelling. They have applied to the Court, pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’), for removal of the tree they say is causing root damage, and pruning of the other trees. At the onsite hearing, they clarified that if root damage can be repaired and prevented they do not require any tree removals. They also clarified that they want all branches overhanging their property removed. The McMahons also claim compensation for replacing the area of uneven pathway and paving.

2. There is some record of correspondence between the parties, but they have been unable to reach agreement. Ms Schofield says she is agreeable to the McMahons pruning her trees if there is a clear agreement as to what is to be pruned and when. She often works nights and doesn’t want to be disturbed during the day.

3. The onsite hearing allowed me to observe Ms Schofield’s trees and the McMahons’ paving. I bring my own arboricultural expertise and experience to this matter. The jurisdictional test at s 10(2) of the Trees Act must be satisfied for each tree before any orders can be made for that tree.

Findings

4. A group of three Bloodwoods stands in the rear corner of Ms Schofield’s property. From the rear boundary these are referred to respectively as T1, T2 and T3. T1 and T2 are upright trees with relatively small crowns. They are in average condition. Some small deadwood in their crowns may fall onto the McMahons’ property, but the risk of this resulting in damage or injury is so low that it does not meet the jurisdictional test at s 10(2) of the Trees Act, so I cannot make orders for these two trees.

5. Due to phototropism, a large portion of T3’s crown has grown above the McMahons’ property, including their garden and clothesline. Long overextended limbs are likely to fail in the near future. The risk of damage or injury is sufficient to satisfy the jurisdictional test at s 10(2) and orders can be made. Pruning to reduce the extent of the crown above the McMahons’ property, and to remove deadwood above their property, will sufficiently minimise the risk.

6. A large Scribbly Gum (T4) is approximately one metre from the common boundary, in line with the McMahons’ dwelling. Although T4’s limbs extend across the boundary and overhang their dwelling, its crown is generally well balanced and has no major defects apparent from a ground-based inspection. Falling limbs may damage the roof but the risk of this could be sufficiently reduced with some reduction pruning; however it is entirely unnecessary to remove all parts of the tree across the boundary.

7. The concrete path on the McMahons’ property between their dwelling and the boundary fence is slightly lifted and displaced in the vicinity of T4. Further from the tree, a section of brick paving continues the path, and these bricks are displaced and uneven. No investigation has been undertaken to show that T4’s roots are the cause of the path’s displacement; but even if I accept this is likely due to the tree’s size and proximity to the path, I note that the path serves a utility function only, from a laundry or similar room, and the damage is so minor that it may not require repair. Furthermore, the damage was only brought to Ms Schofield’s attention in December last year, so she could not have prevented it. There is no evidence to suggest that is has become worse in the interim. Therefore, there is no reason for Ms Schofield to repair or pay compensation for repairs to the pathway. The compensation sought is for a pathway that would be a significant improvement to the existing path. The McMahons will bear the costs of repairing the path should they choose to do so.

8. If roots need to be cut when the path is repaired the McMahons may do so. This should only require cutting of relatively small surface roots that will not affect the tree’s structural integrity.

9. Another Bloodwood (T5) is at the front of Ms Schofield’s property, overhanging the McMahons’ front garden and the naturestrip. It is in poor condition with a sparse canopy. Dead limbs that are large enough to cause injury overhang the McMahons’ garden and the naturestrip. The tree should be removed to minimise the risk of injury, as it is declining and not suitable for pruning.

Orders

10. As a result of the findings above, the Court today makes orders for tree pruning and removal below.

11. I note Ms Schofield is willing for more extensive pruning to be done should the McMahons wish to do this, or even for T4 to be removed at their expense. How this might happen, and who would pay, is a matter to be negotiated between the parties and any contractor carrying out the works. Pursuant to s 6(3) of the Trees Act, the works ordered below do not require Shoalhaven City Council’s permission. Any further pruning or tree removal may require Council permission.

1. Within 60 days of the date of these orders, the respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances to carry out the following works:

1. Prune T3 to remove any deadwood >30 mm diameter above the applicants’ property, and reduce limbs over the applicants’ property, removing no more than 30% live crown mass;

2. Prune T4 to remove any deadwood >30 mm diameter above the applicants’ property, and reduce limbs over the applicants’ property, removing no more than 10% live crown mass;

3. Remove T5 to no more than one metre above ground level.

2. The works are to be done in accordance with the guidelines of AS4373 Pruning of amenity trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry.

3. The respondent is to give the applicants seven days’ notice of the works.

4. The applicants are to allow all access necessary for the works during reasonable hours of the day.

____________________________

D Galwey

Acting Commissioner of the Court

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Decision last updated: 27 August 2018