Mildred v Steinhauer

[2022] NSWLEC 1148

Land and Environment Court

New South Wales

Medium Neutral Citation:

Mildred v Steinhauer [2022] NSWLEC 1148

Hearing dates:

1 and 14 December 2021

Date of orders:

28 March 2022

Decision date:

28 March 2022

Jurisdiction:

Class 1

Before:

Douglas AC

Decision:

See Orders at [71]

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Is the tree causing damage to the applicant’s sewer pipes – is the tree likely to cause such damage in the near future – does the tree present a genuine risk requiring mitigation – is tree removal an appropriate intervention – do benefits from tree exceed the imperative to intervene

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006

ss 7, 9, 10, 12, Pt 2

Uniform Civil Procedure Rules 2005, Sch 7

Cases Cited:

Barker v Kryiakides [2007] NSWLEC 292

Black v Johnson (No 2) [2007] NSWLEC 513

Braun v Basser [2021] NSWLEC 1510

Burnham v Ross [2021] NSWLEC 1339

Channon & anor v Norton & anor [2015] NSWLEC 1391

Fang v Li & anor [2017] NSWLEC 503

McPherson v Lake [2017] NSWLEC 1081

Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152

Smith & Hannaford v Zhang & Zhou [2011]

Yang v Scerri [2007] NSWLEC 592

Zhang v Alzaidi; Zounis v Alzaidi [2021] NSWLEC 1536

Texts Cited:

AS4373-2007: Pruning of amenity trees

Georges River Council, Tree Management Policy, (April 2019)

Land and Environment Court of NSW, COVID-19 Pandemic Arrangements Policy, (December 2021)

Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, (2016)

Category:

Principal judgment

Parties:

Giles Mildred (Applicant)
Erna Steinhauer (Respondent)

Representation:

G Mildred (Self-Represented) (Applicant)
K Sosna (Agent) (Respondent)

File Number(s):

2021/249664

Publication restriction:

No

Judgment

Background

1. COMMISSIONER: Mr Mildred (the applicant) and Ms Steinhauer (the respondent) share a side boundary between their properties in Oatley, in Sydney’s south-west. The applicant’s property faces a street to the west, while the respondent’s property faces east towards a parallel street. About 40% of Mr Mildred’s south facing boundary in his back yard is shared with Ms Steinhauer’s northern boundary.

2. Ms Steinhauer has occupied her property for over 45 years, while Mr Mildred purchased his property about two years ago and leases it to tenants. The subject of the dispute is a mature Eucalyptus microcorys (Tallowood) (the tree) located near the north-western corner of the respondent’s land. The tree is said to be about 60 years old. Being renowned as a long-lived species, the tree may be considered to be near the middle of its life cycle. It is about 25 m tall, with a canopy spread of about 12 m.

3. Mr Mildred seeks orders for the removal of the tree, pursuant to s 7 of Pt 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), as a consequence of damage he claims it is causing to sewer pipes which run near and/or under the tree, and on the basis of his concerns that its roots will cause future damage to sewer pipes. He also claims that the tree represents…