Redman v McSwiney and Maclure

[2018] NSWLEC 1230

Land and Environment Court

New South Wales

Medium Neutral Citation:	Redman v McSwiney and Maclure [2018] NSWLEC 1230
Hearing dates:	14 May 2018
Date of orders:	14 May 2018
Decision date:	14 May 2018
Jurisdiction:	Class 1
Before:	Galwey AC
Decision:	See orders at [19]
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – whether the tree has caused damage – whether further damage is likely – tree removal would be disproportionate
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 (NSW)
Cases Cited:	Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	Charley Redman (Applicant) Patrick McSwiney (First Respondent) Sharon Maclure (Second Respondent)
Representation:	C Redman, litigant in person (Applicant) P McSwiney and S Maclure, litigants in person (Respondents)
File Number(s):	18/17283
Publication restriction:	No

EXTEMPORE Judgment

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

Background

1. A Broad-leaved Paperbark (Melaleuca quinquenervia) (‘the tree’) grows close to a boundary on Mr McSwiney’s and Ms Maclure’s (‘the respondents’) property in South West Rocks. They have owned and lived at the property for approximately two years. During that time Mr Redman (‘the applicant’) bought the neighbouring property, on which he built a dwelling less than two metres from the tree.

2. At Mr Redman’s request, the respondents on two occasions removed branches over his property, significantly reducing the overhanging canopy. Some limbs still extend above his property, as might be expected for a tree this close to the boundary.

3. Mr Redman is now concerned that the tree’s roots are damaging the fence and that limbs might fall. He has applied to the Court, pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’), seeking orders for the respondents to remove the tree, repair the fence and pay his costs associated with making the application.

Framework of the Trees Act

4. If I am satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the Mr Redman’s property (s 10(2) of the Trees Act), I have jurisdiction to make appropriate orders (s 9) after considering a range of matters set out at s 12. The orders may be different to those the applicant seeks.

5. Commissioners of the Court do not have the power to order costs, so if he wishes to pursue that part of his application Mr Redman will have to file a Notice of Motion to be determined by a Judge or the Registrar of the Court.

The tree

6. This native tree is about 12 metres tall. It has average health; its structure and form are typical for this species. Several stems are joined by narrow forks with included bark, but there are no signs of short-term failure within these forks.

The fence

7. The tree grows against the steel-panel fence on the common boundary. It has raised one or two fence panels, although they are still in vertical alignment along the boundary. The fence is solid and functional.

The applicant’s submissions

8. Mr Redman is concerned about: overhanging limbs falling onto his dwelling; the damage caused to the fence, and the likelihood of further damage; mounding of the ground on his property; and the potential for roots to cause damage to his dwelling.

9. Mr Redman obtained a report from an arborist, Rhys Mackney. The report addresses issues such as possible root damage to the dwelling in a general fashion, giving no evidence that such damage is likely. The report identifies the damage to the fence and suggests that repairing the fence with some allowance for future growth is possible, although this wouldn’t necessarily prevent the problem arising again in future.

The respondents’ submissions

10. Ms Maclure and Mr McSwiney value their tree and its benefits. It attracts birds to their garden. They say the fence was in its current condition when they bought their property approximately two years ago, and in the same condition when Mr Redman bought his property more recently. Mr Redman was aware of the tree and the fence’s condition at the time he purchased. They say he should have raised any concerns about damage then. Although he asked for branches to be removed when he was building, and complained about leaves in his gutters, it is only recently after obtaining legal advice that he raised any concerns about property damage. Mr Redman has built his dwelling less than two metres from the tree.

Findings

11. I’m not satisfied that limbs are likely to fall in the near future. There are no major defects apparent in these limbs.

12. There is no evidence to suggest that roots are likely to damage Mr Redman’s dwelling in the near future. As a general rule, I consider ‘the near future’ to be within the next 12 months, since Yang v Scerri [2007] NSWLEC 592 at [14].

13. I am satisfied that the tree’s buttress roots have damaged the dividing fence by lifting the panel adjacent to the stem. The fence belongs to both parties, so any damage to the fence includes damage to the applicant’s property. Further damage is likely, albeit slowly and gradually, as the tree’s roots continue to grow.

14. The mounding of a small area of the ground on Mr Redman’s land does not necessarily amount to damage to his property. It does not significantly affect his enjoyment of his property.

15. Because I am satisfied the tree has damaged the fence, I can make orders. Removing the tree would be disproportionate and is unnecessary. The fence can be repaired relatively easily and cheaply.

16. I have considered the matters at s 12 of the Trees Act. Neither party has contributed to the damage through their actions. Neither party has suffered a loss – the situation is relatively unchanged in the time they have lived here.

17. The tree is close to the boundary. Its environmental benefits outweigh any expectation Mr Redman has that there should be no overhanging branches. Removing the remaining limbs over his property would leave an unbalanced canopy, reducing the tree’s long-term viability.

18. The tree belongs to the respondents, so they will be responsible for repairing the fence.

Orders

19. As a result of the foregoing, the orders of the Court are:

1. Within six months of the date of these orders the respondents are to engage and pay for a suitably experienced fencing contractor to replace the fence panel nearest the tree, allowing at least 50 mm clearance between the fencing material and any part of the tree including its roots. The top of the panel is to align with the adjacent panels. This may be done by reusing the existing panel, with any required alterations, or with a new panel modified for the situation. Roots are not to be damaged.

2. The respondents are to give the applicant seven days’ notice of the works.

3. The applicant is to allow reasonable access for the works to be completed during reasonable hours of the day.

____________________________

D Galwey

Acting Commissioner of the Court

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Decision last updated: 15 May 2018