Stack v Kahler (No 2)

[2023] NSWLEC 1268

Land and Environment Court

New South Wales

Medium Neutral Citation:

Stack v Kahler (No 2) [2023] NSWLEC 1268

Hearing dates:

23 August 2022 and 10 February 2023

Date of orders:

1 June 2023

Decision date:

01 June 2023

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1)   The application to remove or prune the tree is upheld to the extent of the Court’s pruning order (Order 1) made on 23 December 2022.

(2)   The application for compensation is refused.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – boundary tree principally on the respondent’s land – actions of the parties – whether further orders are required for compensation or ongoing tree management

Legislation Cited:

Land and Environment Court Act 1979, s 22

Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 4, 7, 12

Cases Cited:

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

Stack v Kahler [2022] NSWLEC 1731

Texts Cited:

Pittwater 21 Development Control Plan 2004

Category:

Principal judgment

Parties:

Barbara Stack (First Applicant)
Rodney Reece (Second Applicant)
Cameron Kahler (Respondent)

Representation:

B Stack (Self-represented) (First Applicant)
R Reece (Self-represented) (Second Applicant)
C Kahler (Self-represented) (Respondent)

File Number(s):

2022/140944

Publication restriction:

No

Judgment

Background

1. COMMISSIONER: Barbara Stack and Rodney Reece (the applicants) applied to the Court, pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), seeking orders for the removal of a neighbouring Flooded Gum (Eucalyptus grandis) and compensation for property damage. Following the onsite hearing, the Court made orders on 23 December 2022 for Cameron Kahler (the respondent) to have the tree pruned and the base of the tree surveyed relative to the common boundary: Stack v Kahler [2022] NSWLEC 1731. The boundary survey was filed with the Court on 23 January 2023. The Court heard further submissions at a hearing on 10 February 2023.

The tree is principally on the respondent’s land

2. Byrne & Associates surveyed the base of the tree and the common boundary, in accordance with the Court’s orders of 23 December 2022, and prepared a survey report dated 17 January 2023. Diagram A in the report shows that, at ground level, the tree’s stem straddles the boundary but is principally on the respondent’s land. The report shows 91.3% of the stem’s cross-sectional area is on the respondent’s land, while 8.7% is on the applicants’ land. For the purposes of the Trees Act, the tree is on the respondent’s land (s 4(3) of the Trees Act).

The tree belongs to the respondent

3. Although it straddles the boundary and is therefore a ‘boundary tree’, the survey findings show that the stem’s centre, at ground level, is well within the respondent’s land. It can be assumed that the tree was once planted, or sown by natural causes, on the respondent’s land at a point close to the current centre of its stem. Chief Justice Preston discussed issues of tree ownership according to common law in Robson v Leischke (2008)…