Millar v Easby

[2007] NSWLEC 850

Land and Environment Court

of New South Wales

CITATION:

Millar v Easby [2007] NSWLEC 850

PARTIES:

APPLICANT
Trevor Millar

RESPONDENT
Owen Easby

FILE NUMBER(S):

20973 of 2007

CORAM:

Thyer AC

KEY ISSUES:

Trees (Neighbours) :- the trees be cut back to the owner’s side , compensation for costs

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

7/12/2007

EX TEMPORE JUDGMENT DATE:

7 December 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr T. Millar, litigant in person

RESPONDENT
Mr O. Easby, litigant in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Thyer AC

7 December 2007

20973 of 2007 Millar v Easby

JUDGMENT


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

1 Acting Commissioner: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 concerning seven trees (the trees) situated on 10 Commodore Circuit, Banora Point (the property). The property is owned by Mr Owen Easby.

2 The seven trees are:

1. Pride of Bolivia tree, also known as Tipu ( Tipuana tipu ) located in the north-western corner of the front yard;
2. Poinciana tree ( Delonix regia ) located in the front yard beside Mr Millar’s shed;
3. Bottlebrush ( Callistemon sp .) located in the backyard, north-east of Mr Millar’s pool;
4. Wattle ( Acacia sp possibly A. floribunda ) located in the backyard, east of Mr Millar’s pool;
5, 6 & 7 Grass Trees located in the backyard, east of Mr Millar’s deck.

3 The application has been made by Mr Trevor Millar, owner of 8 Commodore Circuit, Banora Point, the adjoining property to the west of the trees.

4 Mr Millar seeks orders from the Court that the trees be cut back to the owner’s side (of the common boundary) and for this to be ongoing.

5 Mr Millar also seeks compensation of $3,536.77 being the cost of quoted works to repair his driveway, install root barrier, repair and paint his shed roof, and the cost of his application fee to the Court.

6 The relevant provisions of s 10(2) of the Act require that the Court be satisfied that one or more of four conditions are met, with respect to each tree subject of an application, before the Court has jurisdiction to consider the application concerning that tree.

7 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?

9 I note that another tree mentioned in the application is a tree growing on the Council nature strip in front of 10 Commodore Circuit, close to the common boundary with 12 Commodore Circuit. I observed that there is damage to the council road pavement near the tree. However, in accordance with s 4 (2)(a) of the Act, the Act does not apply to trees situated on any land that is vested in, or managed by a council. Therefore the Court has no jurisdiction in relation to that tree.

10 I further note that Mr Millar was concerned about a large branch that was growing over the council nature strip from the Tipu tree in the north-western corner of Mr Easby’s property. Mr Millar states in a letter dated 15 May 2007 that on two occasions he suffered blows to the head from the branch. A letter to the Court from Tweed Shire Council advises that the branch was trimmed off by the council on 23 May 2007. At the hearing both Mr Millar and Mr Easby agreed that the tree no longer caused a risk of injury to a person on the council nature strip.

11 I have examined the two trees in the front yard and the damage to the paving and shed. I am satisfied that the two trees have caused some lifting of approximately 10 sq m of Mr Millar’s unit paved driveway near the trees. I am of the opinion that the lifted area should be repaired at Mr Easby’s cost, but that due to the generally worn condition of the driveway, its age, and other changes of level that are probably caused by vehicle use, repairs should not necessarily return the driveway to its original, new condition. I note that Mr Easby has agreed to carry out repairs to the driveway.

12 I observed that there is some lifting of the 1.5 m diameter circle of paving near the shed, and consider that the damage is likely to have been caused by roots of the Poinciana tree. I also note that Mr Easby has agreed to repair that paving.

13 I am not satisfied that the trees have caused any damage to the brick fence that stands on Mr Millar’s side of the common boundary, nor that they will cause any damage in the near future. I note, however that Mr Easby has agreed to prune the roots of the trees and to install root barrier on his side of the boundary, at his cost.

14 I am not satisfied that the Poinciana tree has caused damage to the roof of Mr Millar’s shed. I note in this regard that Mr Millar has withdrawn his claim for damage to the shed roof.

15 I observed that a number of branches of both trees overhang some metres into Mr Millar’s property, and I appreciate that they may drop leaves, flowers and other debris. I am informed that Mr Easby has pruned off a large branch that overhung Mr Millar’s roof, and I observed that no branches currently overhang Mr Millar’s house. I am of the opinion that this situation is similar to that of Barker v Kyriakides where the Court found no reason to order any interference with the trees due to falling leaves and other small debris. This does not remove Mr Millar’s common law rights to prune the branches back to the boundary at his own cost.

16 I observed that the two trees in the front yard made a very significant contribution to the streetscape. They are a prominent visual feature when entering the street, and create an attractive, shaded nature strip, and interesting canopy of varied leaf texture and branch framework. I think it would be a shame to reduce the attractive architecture of these trees by harsh pruning on Mr Millar’s side of the boundary. At different times of the year the trees would present a colourful flower display. It is likely that the trees attract and support birds and other wildlife.

17 The Bottlebrush tree in the backyard is approximately 8 m tall, with its entire canopy well clear of the common boundary. I accept that this tree may drop flower parts and leaves into Mr Millar’s pool, but I do not consider that it has, does or will cause any damage or injury sufficient for the court to make any orders in relation to it.

18 The Wattle tree in the back yard is approximately 5 m tall, with leggy growth, some die-back, and a small branch overhanging the common boundary. As for the Bottlebrush tree, I do not find any reason for the court to make any orders in relation to it. I note however that Mr Easby has agreed to prune the wattle tree clear of the boundary.

19 The three Grass trees are 2 – 4 m tall, located near the waters edge beside a deck that exists on Mr Millar’s property. The grass trees have spiky leaf points that Mr Millar claims have caused him injury. I accept that the leaf points could be a risk of injury to a person on Mr Millar’s deck or any person going near the grass trees. I note that Mr Easby has agreed to remove these grass trees.

20 I note that Mr Easby has agreed to carry out all the works that the Court would have reason to order, and that Mr Millar is in agreement that Mr Easby does those works, and the manner and timing of those works.

21 In relation to Mr Millar’s claim for compensation, he has agreed to have Mr Easby carry out the driveway repair and root barrier installation instead of being compensated for those costs. Mr Millar has withdrawn his claim for the cost of repairs to his shed roof. I advise that the cost of the application to the Court is not a cost that a Commissioner can award as compensation. There are then no outstanding matters of compensation.

22 I therefore dismiss the application, noting the following agreement between the parties:

1. Mr Easby shall install root barrier on his side of the common boundary from the front boundary to the front alignment of Mr Millar’s house, to a depth of 0.6 m in a similar manner to that specified in the quote included in Mr Millar’s application. The root barrier work shall be at Mr Easby’s cost and shall be completed by 30 June 2008. Mr Millar is to be advised by written note within one week prior to the work beginning so that he may observe the work from his property if he wishes.
2. Mr Easby shall repair the driveway paving in that area of approx 10 sq m as agreed by the parties and marked out at the hearing, plus an area of approx 1 sq m where there is a mound mid way between the inner brick walls. Repair shall include removal of the damaging roots from under the paving, and re-laying of the paving. The work shall be carried out by a professional paving crew at Mr Easby’s cost, and shall be completed by 31 March 2008. Written notice shall be given to Mr Millar at least one week prior to the work commencing and the work shall be completed within two weeks of commencement.
3. Mr Easby shall repair the 1.5 m diameter paving circle near the shed on the same basis as for the driveway repair.
4. Mr Easby shall at his own cost remove the three Grass Trees growing beside Mr Millar’s deck. This work shall be completed by 31 March 2008.
5. Mr Easby shall at his own cost prune the wattle tree back to the common boundary. This work shall be completed by 31 March 2008.
6. In relation to pruning of the Poinciana and the Tipu in the front yard and the Bottlebrush in the backyard, the parties agree to continue negotiation about possible pruning of these trees over the next year or so. No pruning of the Poinciana shall occur until after the root pruning has been done and the tree has stabilised.

___________________

Peter Thyer
Acting Commissioner of the Court