Milne v Berton

[2023] NSWLEC 1430

Land and Environment Court

New South Wales

Medium Neutral Citation:

Milne v Berton [2023] NSWLEC 1430

Hearing dates:

23 June 2023

Date of orders:

8 August 2023

Decision date:

08 August 2023

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

See orders at [17].

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – damage caused by neighbouring trees – retaining wall – whether tree removal is required – orders for tree removal and fencing works

Legislation Cited:

Dividing Fences Act 1991, ss 3, 13A

Trees (Disputes Between Neighbours) Act 2006, s 6, Pt 2, ss 7, 10, 12

Cases Cited:

Breen & Anor v Caronna & Anor [2008] NSWLEC 293

Texts Cited:

Ku-ring-gai Development Control Plan 2023

Safe Work Australia, Guide to managing risks of tree trimming and removal work, 2016

Category:

Principal judgment

Parties:

Nicholas Milne (Applicant)
Jane Berton (Respondent)

Representation:

Counsel:
N Milne (Self-represented) (Applicant)
T Lupton (Solicitor) (Respondent)

Solicitors:
The Property Law Group (Respondent)

File Number(s):

2023/74162

Publication restriction:

No

Judgment

Background

1. COMMISSIONER: A brick retaining wall (the wall) runs roughly along the common boundary separating the Warrawee properties of Nicholas Milne (the applicant) and Jane Berton (the respondent). The wall supports a brush fence along its top. At its northern end, the wall is cracking and failing. A row of 14 Bhutan cypress trees (the trees) grows on the respondent’s property along this boundary, adjacent to the wall.

2. On 6 March 2023, Mr Milne applied to the Court, pursuant to s 7 to Pt 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), seeking orders for the respondent to remove the trees and replace the wall.

3. The final hearing in these proceedings took place onsite on 23 June 2023. The Court observed the wall and the trees before hearing submissions from the parties. The hearing was adjourned for a brief period to allow the parties to negotiate an agreement, resulting in proposed consent orders, summarised here:

• Removal of the trees at the respondent’s expense;

• Replacement of the wall, with costs of the works and any required consent and engineering specifications to be shared by the parties; and

• Replacement of the fence, with costs shared by the parties.

4. Before making those orders, I must be satisfied that they are orders the Court can and would make in the circumstances: Breen & Anor v Caronna & Anor [2008] NSWLEC 293. The framework of the Trees Act requires the jurisdictional tests at s 10 to be met before orders are made.

10 Matters of which Court must be satisfied before making an order

1. The Court must not make an order under this Part unless it is satisfied:

(a)   that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, and

(b)   if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 8.

1. The Court must not make an order under…